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 09-13

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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.)

This docket is a continuation of the Section 215 program from September 3, 2009 to October 30, 2009. However, the Clearinghouse does not have a copy of the primary order because it has not been disclosed. FISC Judge Reggie B. Walton presided over this case and the previous cases during 2009. He continued to address significant, systemic issues of the NSA's noncompliance with the minimization procedures.

In July 2009, under the previous docket, the NSA had performed a court-ordered end-to-end review of its telephony metadata program. The review revealed serious instances of noncompliance of minimization procedures and summarized steps taken to remedy the situation. (See BR 09-09 for more information about the history of non-compliance incidents.)

The September 3 primary order mandated that any application to renew the Section 215 program authorization must include a report describing how the NSA has conducted the queries and minimized any information obtained therefrom. 2009 WL 9150914.

On September 23, 2009, the NSA orally informed the FISC of several more instances of mishandling the data, in contravention of the minimization procedures. Judge Walton expressed he was "deeply troubled" by the incidents, which occurred only a few weeks following the end-to-end review. 2009 WL 9150896. The court ordered representatives of the NSA and DOJ appear for a hearing on September 28, 2009 to inform the court of the scope and circumstances of the incidents.

A subsequent case, (BR 09-15), describes the September 28 hearing. The government confirmed that NSA analysts authorized to query the metadata had sent query results to NSA personnel who had not received the training and guidance required by the September 3 primary order. The government testified that the NSA had taken steps to ensure that dissemination of query results would be consistent with the court's orders.

On October 30, 2009, the FISC ruled that NSA analysts who were authorized to query the metadata would be permitted to share the results among themselves and other NSA personnel who had received appropriate training and access permissions.

The issue of noncompliance with minimization procedures continued in the subsequent docket, BR 09-15.