On October 3, 2011, then-Presiding Judge John D. Bates issued a Foreign Intelligence Surveillance Court memorandum opinion reviewing government certifications under FISA Section 702, 50 U.S.C. § 1881a. The declassified opinion, posted by the Office of the Director of National Intelligence, states that the government’s requests are granted in part and denied in part.
Bates wrote that one aspect of the proposed collection — the “upstream collection” of Internet transactions containing multiple communications — was, in some respects, “deficient on statutory and constitutional grounds.” Contemporaneous accounts of the declassified text (Lawfare; The Guardian) report that the court described a substantial misrepresentation of the volume and nature of what had been collected, including tens of thousands of wholly domestic communications. Those recaps are labeled reporting. The primary is the declassified opinion.
A follow-on Bates opinion, dated November 2011 and also declassified, concludes that with regard to information acquired under the certifications then before the court, the government had adequately corrected the deficiencies identified on October 3, and the request for approval was granted. Finding a Fourth Amendment problem in 2011 is not a finding about the 2016–2017 Carter Page applications. Those came later, on a different docket, after he left the court.