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702 of FISA, and FISC-approved procedures permit NSA to run US-person queries of 702 data if
those queries are “reasonably likely to retrieve foreign intelligence information.” 312
(U) FBI receives a small subset of NSA’s 702 collection and can query that data in search
of foreign-intelligence information or evidence of a crime. 313 Ordinary FISA business records
requests can be used to obtain one hop of CDRs and metadata from other modes of digital
communication. Given that terrorism-related conduct is often a crime, FBI can also use grand-
jury subpoenas, which are less burdensome to obtain than FISA orders, to obtain first-hop CDRs
in terrorism cases.

(U) NSA is well-positioned to assess which of its various capabilities provide the greatest
operational value. It chose to suspend this program “after balancing the program’s relative
intelligence value, associated costs, and compliance and data integrity concerns.” 314 Facts
detailed earlier in this Report support that conclusion, even independent of the privacy concerns
raised by domestic collection on this scale. The low volume of intelligence reporting produced
by the program—15 reports over several years—is particularly informative, especially when
coupled with NSA’s assessment that it would expect a program of this scale and expense to
generate hundreds or thousands. 315

(U) That candor is creditable. It is not easy for any government agency to acknowledge
that a program was not successful, despite the resources and effort it consumed. Agencies
should be encouraged to periodically reassess their collection activities and terminate them when
they outlive their usefulness or when their costs outweigh their value, with privacy and civil
liberties considerations forming an integral part of that analysis. Scrutiny of intelligence
programs is an essential corrective in our democratic system. However, outside observers should
be careful to distinguish between abuse or overreach—neither of which we found here—and
programs that, despite good faith efforts, yield less than anticipated. Intelligence is a complex
enterprise in which uncertainty is pervasive. It is not always clear in advance whether or not a
program will yield benefits commensurate with its costs and risks. If agencies feel compelled to
defend rather than abandon unproductive programs, the principal casualty will be the privacy of
those Americans whose data continues to be collected.

312 (U) Declassified 2018 NSA Querying Procedures for Section 702, § IV.A.
313 (U) Christopher Wray, Director, Federal Bureau of Investigation, Speech on Section 702 at the Heritage
Foundation (Oct. 13, 2017) (FBI receives only on targets for which it has “full national security investigations,”
amounting to “about 4.3 percent of the targets that are under NSA collection[.]”); Declassified 2018 FBI Querying
Procedures for Section 702, § IV.A.1.
314 (U) Unclassified Letter from Director of National Intelligence Dan Coats to Senators Richard Burr, Lindsey
Graham, Mark Warner, and Dianne Feinstein, at 1 (Aug. 14, 2019).
315 (U) See Part III(B).
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