Case: In re application of the Federal Bureau of Investigation for an order requiring production of tangible things [redacted information] FISA Docket BR 09-15

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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.)

In 2009, FISC Judge Reggie B. Walton presided over the applications for the orders continuing the Section 215 program. Because of incidents where the NSA had failed to comply with the FISC's minimization procedures for disseminating metadata (described in BR 09-09 and BR 09-13, Judge Walton was concerned about NSA compliance. As a result, on September 25, 2009, Judge Walton ordered representatives of the NSA and the National Security Division of the Department of Justice to appear for a hearing, held September 28, 2009, in order to inform the FISC more fully of the scope and circumstances of the incidents, and to allow the FISC to assess whether the FISC's order should be modified or rescinded and whether other remedial steps should be imposed.

In light of the hearing, on October 30, 2009, Judge Walton issued this matter's primary order, continuing the Section 215 program until late December 15, 2009. Judge Walton permitted NSA analysts who were authorized to query the metadata to share the results among themselves and other NSA personnel who had received appropriate training and access permissions. Judge Walton also permitted the government to query the metadata for historical purposes by using a telephone identifier that was not currently associated with one of the targeted foreign powers, but that was for a period of time in the past. Because those queries did not satisfy the "reasonable articulable suspicion" standard, Judge Walton was concerned about the likelihood that the queries could reveal communications of United States persons who were not subjects of investigation. Therefore, Judge Walton reiterated the limits on the dissemination of that metadata and the reporting requirement. The reports had to describe how the NSA conducted the queries and minimized any information obtained therefrom.

One additional document has been declassified, an order and opinion from November 5, 2009, by Judge Walton. In this supplemental order and opinion, Judge Walton found that the NSA reports to the FISC, as required by the October 30 primary order, were not sufficiently detailed to allay the Court's concern about the likelihood that the NSA queries could reveal communications of United States persons who were not subjects of investigation. Therefore, the Court ordered more rigorous reporting about how the NSA conducted queries of the metadata. 2009 WL 9150915.

The November 5 order referenced several incidents where the NSA failed to comply with the minimization procedures and the reporting requirement related to FISA applications BR 08-13, BR 09-01, BR 09-06, BR 09-09, and BR 09-13. (See BR 09-13.)

For the next application, see BR 09-19. However, the primary order for BR 09-19 remains classified, so the next available primary order for comparison purposes is BR 10-10.