The National Security Agency (“NSA”) announced that it will voluntarily stop collecting the email and text exchanges of American citizens with persons overseas that mention a target of NSA surveillance.  Although the collection of these so-called “about” communications is permitted by Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), the NSA will now limit its collection to electronic communications sent to or received by a foreign intelligence target.  In addition, the NSA will delete the vast majority of previously acquired “about” communications. 

Set to expire at the end of 2017, Section 702 allows the NSA, and the U.S. intelligence community more broadly, to conduct surveillance to combat international terrorism and cyber threats.  Section 702 permits the NSA to collect the communications of any foreign target, although the NSA generally must obtain a warrant to collect the communications of Americans, except under certain circumstances.  “About” communications were one of those exceptions.  Due to technological limitations, the NSA’s elimination of “about” communications from collection will ultimately exclude some relevant communications to or from foreign targets.  Nevertheless, the NSA determined that in light of factors like the privacy interests of Americans, the new approach is the “responsible” and “careful” option.

These policy changes within the NSA come on the heels of an in-house review of its Section 702 actions in which the NSA discovered multiple inadvertent compliance incidents.  The NSA did not make public the nature of the compliance lapses.  However, per protocol, the NSA reported these incidents to Congress and the United States Foreign Intelligence Surveillance Court (“FISC”).