Case: In Re Application of the Federal Bureau of Investigation for an order requiring the production of tangible things from [redacted information] FISA Docket BR 06-05

06-00005 | U.S. District Court for the Foreign Intelligence Surveillance Court

Filed Date: 2006

Closed Date: 2006

Clearinghouse coding complete

Case Summary

For the complete Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.On January 17, 2014, the Director of National Intelligence authorized the declassification and public release of numerous orders approving the National Security Agency's ("NSA") so-called "Bulk Telephony Metadata Program" under Section 501 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), commonly referred to as Section 215 of the USA PATRIOT Act. Press release available h…

For the complete Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.

On January 17, 2014, the Director of National Intelligence authorized the declassification and public release of numerous orders approving the National Security Agency's ("NSA") so-called "Bulk Telephony Metadata Program" under Section 501 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), commonly referred to as Section 215 of the USA PATRIOT Act. Press release available here.

Under the program, the NSA has collected records from large telecommunication companies about, apparently, virtually all domestic telephone calls. These records, termed "telephony metadata," include the phone numbers placed and received; the date, time and duration of calls; some location identifiers; and calling card numbers. The records, however, allegedly do not include the parties' names, addresses, or financial information or the call's content.

The program began under executive authority alone following the September 11, 2001 terrorist attacks. Subsequently, in 2006, the federal government first sought approval of the program from the Foreign Intelligence Surveillance Court ("FISC") under Section 215 of the USA PATRIOT Act. This Section 215 order must be reviewed and reapproved by the FISC essentially every 90 days. It has been approved dozens of times by many different federal judges, on the FISC, since its initial approval on May 24, 2006 by the FISC.

This Clearinghouse case record is for the first application and granting of the order. On May 24, 2006, the Director of the Federal Bureau of Investigations first applied to the Foreign Intelligence Surveillance Court (FISC) for an order under Section 501(c)(1) of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1861, requesting production of bulk telephony metadata from telephone service providers for ninety days to the National Security Agency (NSA). The identity of the subject of the investigation was redacted from court documents, as well as the identity of the service providers.

The government's May 23, 2006 memo of law supporting the application requested bulk collection of telephony metadata because of the potential intelligence derived from metadata analysis. Bulk collection is necessary, the government argued, because "analysis is possible [] only if the Government has collected and archived a broad set of metadata that contains within it the subset of communications that can later be identified as terrorist-related." Archiving the metadata would allow analysts to use the data "in a targeted way to find the terrorists tomorrow." Moreover, the government claimed that even if the metadata from non-terrorist communications produced nothing relevant, title V of FISA did not demand that production collect only information strictly relevant to the investigation at hand.

The court order signed by Judge Malcolm J. Howard authorized acquisition of the metadata, but required minimization procedures, including limitation to phone numbers for which there is a reasonable, articulable suspicion that the number is associated with the subject; access limited to authorized NSA analysts; and routine monitoring by the NSA Office of the General Counsel. The order stated that it would expire on August 18, 2006. The court issued an Amended Order on August 8, 2006, which the government has not released to the public.

In August 2006, the NSA provided a report to the FISC detailing compliance with the minimization procedures required under the May 24, 2006 order. The NSA reported several instances of inadvertent collection of substantive content of communications, including credit card numbers and names used to place collect calls.

On July 20, 2009, the Department of Justice moved to unseal the May 24, 2006 motion and court order in order to submit it to various intelligence committees in the United States Senate and House of Representatives. Judge Roger Vinson entered the order on July 22, 2009.

The order in this matter was succeeded by BR 06-08, NS-DC-0031 in this Clearinghouse.

Summary Authors

Elizabeth Homan (4/6/2014)

Related Cases

In re Orders Issued by This Court Interpreting Section 215 of the PATRIOT Act [FISA Docket Misc. 13-02], Foreign Intelligence Surveillance Court (2013)

In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [Redacted], FISA BR 14-96, Foreign Intelligence Surveillance Court (2014)

In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 10-70, Foreign Intelligence Surveillance Court (2010)

People


Judge(s)

Alsup, William Haskell (California)

Bea, Carlos T. (California)

Corley, Jacqueline Scott (California)

Duffy, Kevin Thomas (New York)

Fletcher, William A. (California)

Howard, Malcolm Jones (North Carolina)

Kozinski, Alex (California)

Nelson, Dorothy Wright (California)

Otero, S. James (California)

Paez, Richard A. (California)

Judge(s)

Alsup, William Haskell (California)

Bea, Carlos T. (California)

Corley, Jacqueline Scott (California)

Duffy, Kevin Thomas (New York)

Fletcher, William A. (California)

Howard, Malcolm Jones (North Carolina)

Kozinski, Alex (California)

Nelson, Dorothy Wright (California)

Otero, S. James (California)

Paez, Richard A. (California)

Silverman, Barry G. (Arizona)

Smith, Norman Randy (Idaho)

Vinson, Clyde Roger (Florida)

Attorneys(s) for Plaintiff

Barker, James A (District of Columbia)

Bradbury, Steven G. (District of Columbia)

Bradbury [inactive], Stephen A (District of Columbia)

Elzankaly, Marwa (California)

Hammon, Kevin (California)

Ibrahim, Rahinah (California)

Kazi, Rubina (California)

McManis, James H. (California)

Peek, Christine (California)

Pipkin, William Lewis (Virginia)

Attorneys(s) for Defendant

Bloom, Karen S (District of Columbia)

Farel, Lily Sara (District of Columbia)

Flynn, Ronald P. (California)

Freeborne, Paul Gerald (District of Columbia)

Go, Samuel P. (District of Columbia)

Grotch, Richard (California)

Herrera, Dennis J. (California)

Hoeper, Joanne (California)

Keith, Peter J. (California)

Kelleher, Diane (District of Columbia)

Mayo, Sharon D. (California)

Soosaipillai, Miruni (California)

Theis, Roger M. (Kansas)

Tyler, John Russell (District of Columbia)

Documents in the Clearinghouse

Document

Memorandum of Law in Support of Application for Certain Tangible Things for Investigations to Protect Against International Terrorism

In Re Application of the Federal Bureau of Investigation for an order requiring the production of tangible things from [Redacted] FISA Docket BR 06-05

May 23, 2006 Pleading / Motion / Brief

NSA Report to the Foreign Intelligence Surveillance Court

[Redacted] FISA Docket BR 06-05

Aug. 17, 2006 Monitor/Expert/Receiver Report

Order

In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [redacted]

2006 WL 7137486

Aug. 18, 2006 Order/Opinion

Order [Granting Motion to Unseal with Accompanying Motion]

In Re Application of the Federal Bureau of Investigation for an order requiring the production of tangible things from [Redacted] FISA Docket BR 06-05

July 22, 2009 Order/Opinion

Resources

Title Description External URL

Reforming the Foriegn Intelligence Surveillance Court's Interpretive Secrecy Problem

Gregory S. McNeal

This symposium essay focuses on national security surveillance and democratic legitimacy. The essay provides a very brief overview and history of the section 215 metadata program and the section 702 … Nov. 15, 2014

Docket

Last updated May 12, 2022

Docket sheet not available via the Clearinghouse.

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Act -- Telephony Metadata

Foreign Intelligence Surveillance Court

Key Dates

Filing Date: 2006

Closing Date: 2006

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiff is the Federal Bureau of Investigation (FBI).

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Case Details

Causes of Action:

FISA Title V order (PATRIOT Act § 215, business records or other tangible things), 50 U.S.C. §§ 1861-1862

Constitutional Clause(s):

Unreasonable search and seizure

Freedom of speech/association

Special Case Type(s):

Warrant or subpoena application

Availably Documents:

Non-settlement Outcome

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Warrant/Order allowing surveillance

Source of Relief:

Litigation

Order Duration: 2006 - 2006

Content of Injunction:

Reporting

Recordkeeping

Monitoring

Warrant/order for search or seizure

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues