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

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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.