Case: In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 08-07

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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 collected records from large telecommunication companies about, apparently, virtually all domestic telephone calls. These records, termed "telephony metadata," included the phone numbers placed and received; the date, time and duration of calls; some location identifiers; and calling card numbers. The records, however, apparently did not include the parties' names, addresses or financial information or the call's content. Once collected, the records were stored for several years and could 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 was that the metadata records could be queried when there was a reasonable suspicion, based on specific and articulated facts, that the identifier that would be used as the basis for the query was 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 had to be reviewed and reapproved by the FISC essentially every 90 days. It was approved dozens of times by many different federal judges on the FISC since its initial approval on May 24, 2006. (See BR 06-05.) The collection of telephony metadata was later limited by the USA FREEDOM Act in 2015.

This particular Section 215 order was granted by FISC Judge James B. Zagel on June 26, 2008. 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, this order shortened the authorization period to approximately 60 days compared to the previous order (BR 08-04) that had an authorization period of approximately 90 days. Therefore, certain reviews of the program had to be done prior to the expiration of the authorization period rather than within 90 days.

When it filed its request for approval, the government also filed a report that discussed a potential compliance issue with the court's previous orders. The issue was partially redacted, but involved the NSA using International Mobile Equipment Identifier (IMEI) and International Mobile Subscriber Identification (IMSI) numbers for "contact chaining." The government was not sure if using these numbers was allowed under the court's prior orders authorizing the use of telephone numbers. After a hearing on June 26, 2008, the court temporarily allowed the NSA to use IMEI and IMSI numbers until it could more fully resolve the issue. In an August 19, 2008 hearing the court extended that temporary authorization for 120 days. The next day, the court issued an order holding that IMEI and IMSI numbers count as "telephone numbers" because that number includes all the underlying numbers associated with a telephone number, beyond the literal number that displays on a screen.  

The overall authorization expired on August 22, 2008, at 5:00 p.m. The order in this matter was succeeded by BR 08-08.