Case: In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [Redacted], FISA BR 14-96

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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 matter is a continuation of the Section 215 program from June 19, 2014, to September 12, 2014. On June 19, 2014, FISC Judge James B. Zagel issued the primary order authorizing the collection under specified procedures. The previous order was BR 14-67. 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 those in the previous order.

Judge Zagel wrote in his order that his approval of this application meant that he agreed with previous decisions of the FISC in BR 13-158, which held that under the controlling precedent of Smith v. Maryland, 442 U.S. 735 (1979), the production of call detail records in this matter did not constitute a search under the Fourth Amendment. With respect to the statutory requirements for the issuance of orders for the collection of bulk telephony metadata, Judge Zagel adopted the analysis put forth by Judge Claire Eagan in her August 29 Opinion in BR 13-109.

On June 26, 2014, FISC Judge Thomas F. Hogan ordered the publication of the June 19 Memorandum Opinion and Primary Order after the government reviewed and redacted the document.

The next FISC order dealing with the 215 bulk telephony metadata program is BR 14-125.