Case: In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 11-107

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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. 

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 John D. Bates on June 22, 2011. 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 (BR 11-57), except that this order made one minor change to the definition of "telephony metadata." Specifically, this order defined telephony metadata, in relevant part, as including "comprehensive communications routing information, including but not limited to session identifying information." By contrast, the previous order (BR 11-57) defined telephony metadata, in relevant part, as "comprehensive communications routing information." This change seems not very substantive.

The authorization expired on June 22, 2011, at 5:00 p.m.

Notably, also on June 22, 2011, FISC Judge John D. Bates issued a supplemental order that required the NSA to include, in reports to the FISC, a discussion of NSA's efforts to purge credit card information produced by a source that has been redacted.

The remaining primary orders from 2011 and all of the primary orders from 2012 remained classified. The next available order for comparison purposes is in BR 13-80.