Case: In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 07-16

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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 particular Section 215 order was granted by FISC Judge Roger Vinson on October 18, 2007. 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. Specifically, the previous order (BR 07-14) permitted metadata searches for all telephone numbers that are already the subject of individual FISA warrants (and therefore a judicial finding of probable cause) without additional vetting by the NSA. The previous order also created an exception for telephone numbers in FISA Docket Number 07-449 by still requiring additional vetting by the NSA for these telephone numbers. This order, by contrast, removes the exception for telephone numbers in Docket Number 07-449. However, it creates a much broader rule--requiring "reasonable articulable suspicion" vetting of any telephone numbers placed under surveillance pursuant to any certification of the Director of the National intelligence and the Attorney General under Section 105B of FISA, as added by Protect America Act of 2007 ("PAA"). That is, telephone numbers under surveillance pursuant to such PAA certification, rather than certification under the pre-2007-type FISA warrants, are subject to the requirement of additional vetting by the NSA, rather than being deemed compliant because of their court-ordered origin. Notably, this is the first order after enactment of the PAA.

The authorization expired on January 11, 2008, at 5:00 p.m.

The order in this matter was succeeded by BR 08-01.