Case: In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 14-01

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On January 3, 2014, the Director of National Intelligence announced that the Foreign Intelligence Surveillance Court ("FISC") had again approved 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 Thomas F. Hogan on January 3, 2014. It was preceded by BR 13-158. Notably, this was the first FISC order approving the NSA's program after the U.S. District Court for the District of Columbia held that the program was likely unconstitutional. See Klayman v. Obama.

In a speech on January 17, 2014, President Obama announced his intention to end the Section 215 bulk telephony metadata program as it previously existed. The President ordered two main changes to effectuate that goal. First, he directed the Attorney General to work with the FISC to ensure that, absent a true emergency, telephony metadata can be queried only after a judicial finding that there is a reasonable, articulable suspicion that the selection term is associated with an approved international terrorist organization. Second, the President directed that the query results must be limited to metadata within two hops of the selection term instead of three, that is, phone calls that are only two steps removed from a number linked to a terrorist group rather than three. The President also directed the intelligence community and the Attorney General to develop options for a new approach more generally. See http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signals-intelligence.

Shortly after the President's speech, on January 22, 2014, a telecommunications provider requested that the FISC modify or vacate its January 3 primary order in light of Klayman. On January 23, 2014, Judge Rosemary M. Collyer issued a scheduling order to review the petition. The order required all filings to be made under seal.

On February 5, 2014, the federal government itself requested that the FISC amend its January 3 primary order to implement the two changes that the President directed in his January 17 address. FISC Judge Reggie B. Walton granted the federal government's request later that day.

On February 12, 2014, the federal government responded to the telecommunications provider's petition and requested that the Court affirm its January 3 secondary order.

On February 25, 2014, the federal government submitted a motion for second amendment to the January 3 primary order, requesting that the FISC extend the disposal deadline for telephony metadata from five years to an indefinite time period. The government made this request in light of its duty to preserve evidence that could become relevant to pending civil litigation. On March 7, 2014, Judge Walton issued an opinion and order denying the motion without prejudice. The Court rejected the government's premise that the duty to avoid spoliation superseded requirements to destroy information under FISC orders approved pursuant to Section 215 of the USA PATRIOT Act.

Because the FISC's denial was without prejudice, on March 11, 2014, the federal government filed a motion for temporary relief from the five-year destruction requirement, providing additional facts to support its motion. In particular, the government noted that a U.S. District Court had issued a temporary restraining order on March 10, 2014, against the destruction of any telephony metadata in three other cases. These cases were Jewel v. NSA.

Like the other FISC proceedings, this matter was originally classified and sealed. But Judge Collyer concluded on April 11, 2014, that the Court had the discretion to unseal the petition and related Court records under the appropriate circumstances and that it should exercise this authority. The parties agreed that the Court had the authority to unseal the properly declassified versions of the records. The sealing requirement in Section 1861(f)(5) applies to the filing of a petition and therefore by its terms binds the petitioner but not the Court. On April 25, 2014, Judge Collyer unsealed five of this matter's documents in redacted form: the Petition filed January 22, 2014; the Scheduling Order dated January 23, 2014; the Response of the United States filed February 12, 2014; the Opinion and Order dated March 20, 2014; and the Order dated April 11, 2014. The documents were published on the FISC's website in redacted form, and they are included in the record in this Clearinghouse as well.