Case: In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], FISA Docket BR 13-109

13-00109 | Foreign Intelligence Surveillance Court

Filed Date: 2013

Closed Date: 2013

Clearinghouse coding complete

Case Summary

For the 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. Und…

For the 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, 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, NS-DC-0009 in this Clearinghouse.)

This particular Section 215 order was granted by FISC Judge Claire V. Eagan on July 18, 2013, authorizing the Section 215 program until October 11, 2013. The previous order was BR 13-80, NS-DC-0056 in this Clearinghouse. As usual, this order includes "minimization" procedures that impose a variety of limits on the NSA's use of the telephony metadata. The minimization procedures enumerated in this order are the same as the previous order with one exception. The new requirements no longer required review by the Court, the NSA's Office of General Counsel, and the Department of Justice of all proposed automated query processes. Instead, the new requirements only require review of new or modified automated query processes.

On August 29, 2013, Judge Eagan released a memorandum opinion considering whether the Fourth Amendment to the U.S. Constitution imposed any impediment to the government's collection. The FISC found that U.S. Supreme court precedent under Smith v. Maryland, 442 US. 735 (1979) compelled the conclusion that there is no Fourth Amendment prohibition on the collection. Furthermore, the Court considered the terms and legislative history of Section 215 to determine that the proposed collection was lawful and that the FISC should issue orders authorizing collection. 2013 WL 5741573.

The order in this matter was succeeded by BR 13-158, NS-DC-0018 in this Clearinghouse.

Summary Authors

Elizabeth Homan (4/14/2014)

Jessica Kincaid (8/4/2014)

Related Cases

In re Motion of ProPublica, Inc. for the Release of Court Records [FISC Docket Misc. 13-09], 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)

People


Judge(s)

Eagan, Claire None (Oklahoma)

McLaughlin, Mary A. (Pennsylvania)

Walton, Reggie B. (District of Columbia)

Other Attorney(s)

Active

Judge(s)

Eagan, Claire None (Oklahoma)

McLaughlin, Mary A. (Pennsylvania)

Walton, Reggie B. (District of Columbia)

Other Attorney(s)

Martin, Kate (California)

Documents in the Clearinghouse

Document

13-00109

Order [re classification review]

In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [redacted] FISA Docket BR 13-109

Aug. 23, 2013

Aug. 23, 2013

Order/Opinion

13-00109

Order [re renumbering footnotes]

In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [redacted] FISA Docket BR 13-109

Aug. 29, 2013

Aug. 29, 2013

Order/Opinion

13-00109

Order [re declassification]

In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from FISA Docket BR 13-109

Sept. 17, 2013

Sept. 17, 2013

Order/Opinion

13-00109

Center for National Security Studies Letter 09.26.13

In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from FISA Docket BR 13-109

Sept. 26, 2013

Sept. 26, 2013

Pleading / Motion / Brief

13-00109

Order [re requests of non-party]

In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from FISA Docket BR 13-109

Oct. 9, 2013

Oct. 9, 2013

Order/Opinion

13-00109

Amended Memorandum Opinion and Primary Order

In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [redacted] FISA Docket BR 13-109

2013 WL 5741573

Oct. 11, 2013

Oct. 11, 2013

Order/Opinion

Resources

Docket

Last updated May 30, 2022, 3:08 a.m.

Docket sheet not available via the Clearinghouse.

Case Details

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: 2013

Closing Date: 2013

Case Ongoing: No

Plaintiffs

Plaintiff Description:

U.S. Government, proceeding by an application by the FBI, on behalf of the NSA.

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

Availably Documents:

Injunctive (or Injunctive-like) Relief

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Order Duration: 2013 - 2013

Content of Injunction:

Auditing

Recordkeeping

Reporting

Monitoring

Warrant/order for search or seizure

Issues

General:

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues