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 09-06

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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, apparently do not include the parties' names, addresses or financial information or the call's content. Once collected, the records are stored for several years and may be queried, used, and disseminated only in accordance with "minimization rules" proposed by the government and approved by the Foreign Intelligence Surveillance Court ("FISC"). The most basic aspect of the minimization rules has been that the metadata records can be queried when there is a reasonable suspicion, based on specific and articulated facts, that the identifier that will be used as the basis for the query is associated with specified foreign terrorist organizations.

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 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. (See BR 06-05.)

On May 29, 2009, the Director of the FBI applied to the FISC for a Section 215 order, set to expire in July 2009. The Clearinghouse does not have a copy of the primary order because it has not been disclosed. This order came after several months of incidents in which the FISC found that the NSA had not complied with the court-ordered minimization procedures. FISC Judge Reggie B. Walton presided over those cases, and he continued to handle this case.

On May 29, 2009, the FISC had issued an order on this docket addressing the government's disclosure that NSA analysts had accessed the metadata without court authorization. The order required the NSA to submit a declaration providing a complete description of the NSA's data dissemination practices and a correction regarding inaccuracies in required reports.

On June 16, 2009, the government first brought a compliance incident relating to a dissemination-related problem to the FISC's attention in a preliminary notice of compliance. At the same time, the government also filed a notice in PR-TT [redacted]. The government informed the Court that the unminimized results of some queries of metadata collected in both matters had been "uploaded [by NSA] into a database to which other intelligence agencies ... had access." Preliminary Notice of Compliance Incident filed [redacted] in Docket No. PR-TT [redacted] at 2; Preliminary Notice of Compliance Incident filed June 16, 2009, in Docket No. BR 09-06 at 2. This information comes from a June 22, 2009, order in FISA Docket PR-TT ---- (Walton, J) (June 2009). In the order, Judge Walton refers to the two preliminary notices on pages 5-6.

The only disclosed document in this docket is a heavily redacted order issued by Judge Walton on June 22, 2009. That order describes the evolution of significant compliance incidents at the NSA during the previous months. On June 28, 2009, the United States submitted its response to that order. The government informed the court that the results of some metadata queries had been uploaded by the NSA into a database to which other intelligence agencies had access. Providing such access may have resulted in unlawful dissemination of information about U.S. persons.

In the subsequent docket, BR 09-09, the FISC ordered the NSA to perform an end-to-end review of its handling of metadata records.