Case: In re Orders Issued by This Court Interpreting Section 215 of the PATRIOT Act [FISA Docket Misc. 13-02]

13-00002 | Foreign Intelligence Surveillance Court

Filed Date: June 12, 2013

Closed Date: Aug. 27, 2014

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, 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. (See BR 06-05, NS-DC-0009 in this Clearinghouse.)

On June 12, 2013, the American Civil Liberties Union (ACLU) and the Media Freedom and Information Access Clinic (MFIAC) filed a motion in the FISC for release of court records including opinions that interpreted Section 215. The plaintiffs argued that the First Amendment compelled release of the judicial decisions and FISC Court Rule 62 granted the FISC discretion to publish its own orders, opinions, and decisions.

Judge Dennis Saylor IV ruled on September 13, 2013 that the ACLU had standing to bring the case, but he dismissed the claim of MFIAC for lack of standing. The ACLU had moved for release of several opinions interpreting Section 215 that were already the subject of FOIA litigation in the United States District Court for the Southern District of New York. Judge Saylor ordered the government to report which Section 215 Opinions were not subject to the FOIA litigation and to complete a declassification review for each opinion. After the review, the author of each opinion could decide whether to propose publication under Rule 62. 2013 WL 5460064.

(Proceedings were briefly stayed in October 2013 due to a lack of Congressional budget appropriations for the U.S. government.)

The government identified one opinion of the Court, issued on February 19, 2013 in docket BR 13-25, that interpreted Section 215 and was not already the subject of FOIA litigation or previous public release. On November 18, 2013, the government filed its two-page declassification review that requested the opinion be withheld in full and a public version not be provided. On November 20, Judge Saylor ordered the government to submit a detailed explanation of its conclusion that the Opinion is classified in full.

In December 2013, FISC Judge Reggie Walton permitted the motion of the Reporters Committee for Freedom of the Press and a group of 25 media organizations to file a brief as amici curiae.

On December 20, 2013, the government filed a submission to the Court stating that the February 19 opinion pertained to an ongoing law enforcement investigation, but it did not object to if the Court determined to publish non-classified portions of the opinion. The ACLU filed its response to the government's submission on February 19, 2014.

On August 7, 2014, Judge Dennis Saylor IV released his opinion directing the government to publish and declassify a redacted version of the February 19 opinion. 2014 WL 5442058.

The Court published the February 19 opinion on August 27, 2014. (See BR 13-25, NS-DC-0060 in this Clearinghouse.) The case is closed.

Summary Authors

Elizabeth Homan (5/23/2014)

Jessica Kincaid (6/9/2014)

Brian Tengel (2/15/2015)

Related Cases

In re Motion for Declaratory Judgment of a First Amendment Right to Publish Aggregate Information about FISA Orders [FISA Docket Misc. 13-03 (Google); Misc. 13-04 (Microsoft); Misc. 13-05 (Yahoo!); Misc. 13-06 (Facebook); Misc. 13-07 (LinkedIn)], Foreign Intelligence Surveillance Court (2013)

In re Opinions & Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act [FISA Docket Misc. 13-08, FISCR docket 20-1], Foreign Intelligence Surveillance Court (2013)

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 information] FISA Docket BR 06-05, Foreign Intelligence Surveillance Court (2006)

In re Motion to Disclose Aggregate Data Regarding FISA Orders [FISA Docket Misc. 13-04 (Microsoft Corporation)], 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], FISC BR 13-25, Foreign Intelligence Surveillance Court (2013)

People


Judge(s)

Bates, John D. (District of Columbia)

McLaughlin, Mary A. (Pennsylvania)

Saylor, F. Dennis IV (Massachusetts)

Walton, Reggie B. (District of Columbia)

Attorneys(s) for Plaintiff

Abdo, Alex (New York)

Brown, Bruce D. (Virginia)

Jaffer, Jameel (New York)

Kaufman, Brett Max (New York)

Manes, Jonathan (New York)

Schulz, David A (New York)

Judge(s)

Bates, John D. (District of Columbia)

McLaughlin, Mary A. (Pennsylvania)

Saylor, F. Dennis IV (Massachusetts)

Walton, Reggie B. (District of Columbia)

Attorneys(s) for Plaintiff

Abdo, Alex (New York)

Brown, Bruce D. (Virginia)

Jaffer, Jameel (New York)

Kaufman, Brett Max (New York)

Manes, Jonathan (New York)

Schulz, David A (New York)

Spitzer, Arthur (District of Columbia)

Toomey, Patrick Christopher (New York)

Attorneys(s) for Defendant

Carlin, John P. (District of Columbia)

Guahar, Tashina (District of Columbia)

Iftimie, Alex (District of Columbia)

Patterson, Nicholas J. (District of Columbia)

Smith, Jeffrey Michael (District of Columbia)

Wiegmann, J. Bradford (District of Columbia)

Other Attorney(s)

Diskant, Gregory L. (New York)

Kim, Richard I (New York)

Litman, Benjamin L. (New York)

Expert/Monitor/Master

Rosenthal, Daniel J (District of Columbia)

Documents in the Clearinghouse

Document

07-00001

U.S. Response 07.05.13

In re Orders Issued by this Court Interpreting Section 215 of the Patriot Act [Misc. 13-02]

Feb. 8, 2008

Feb. 8, 2008

Pleading / Motion / Brief

13-00002

ACLU Motion for Release 6.12.13

In re Orders Issued by this Court Interpreting Section 215 of the Patriot Act [Misc. 13-02]

June 10, 2013

June 10, 2013

Pleading / Motion / Brief

13-00002

Brief of Amici Curiae United States Representatives 7.28.13

In re Orders Issued by this Court Interpreting Section 215 of the Patriot Act [Misc. 13-02]

June 28, 2013

June 28, 2013

Pleading / Motion / Brief

13-00002

ACLU Reply Brief 07.12.13

In re Orders Issued by this Court Interpreting Section 215 of the Patriot Act [Misc. 13-02]

July 12, 2013

July 12, 2013

Pleading / Motion / Brief

13-00002

Brief of Amici Curiae Reporters Committee for the Freedom of the Press 07.15.13

In re Orders Issued by this Court Interpreting Section 215 of the Patriot Act [Misc. 13-02]

July 15, 2013

July 15, 2013

Pleading / Motion / Brief

13-00002

Order 07.18.13

In re Orders Issued by this Court Interpreting Section 215 of the Patriot Act [Misc. 13-02]

July 18, 2013

July 18, 2013

Order/Opinion

13-00002

Opinion and Order 09.13.13

In re Orders Issued by this Court Interpreting Section 215 of the Patriot Act [Misc. 13-02]

2013 WL 5460064

Sept. 13, 2013

Sept. 13, 2013

Order/Opinion

13-00002

Stay 10.04.13

In re Orders Issued by this Court Interpreting Section 215 of the Patriot Act [Misc. 13-02]

Oct. 4, 2013

Oct. 4, 2013

Pleading / Motion / Brief

13-00158

Memorandum

In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangibles Things from [BR 13-158]

Oct. 11, 2013

Oct. 11, 2013

Order/Opinion

13-00002

U.S. First Response to Court's 10.8.13 Order

In re Orders Issued by this Court Interpreting Section 215 of the Patriot Act [Misc. 13-02]

Oct. 24, 2013

Oct. 24, 2013

Pleading / Motion / Brief

Resources

Docket

Last updated June 1, 2022, 3:01 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: June 12, 2013

Closing Date: Aug. 27, 2014

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiff is the American Civil Liberties Union and the Media Freedom and Information Access Clinic at Yale Law School.

Plaintiff Type(s):

Private Plaintiff

Attorney Organizations:

ACLU National (all projects)

ACLU Affiliates (any)

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Department of Justice, Federal

Case Details

Availably Documents:

Trial Court Docket

Complaint (any)

Non-settlement Outcome

Outcome

Prevailing Party: None Yet / None

Nature of Relief:

Document/information produced

Source of Relief:

Litigation

Order Duration: 2014 - 2014

Issues

General:

Confidentiality

Courts

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues