Case: In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [Redacted], FISC BR 14-67

For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

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 matter is a continuation of the Section 215 program from March 28, 2014, to June 20, 2014. On March 28, 2014, FISC Judge Rosemary M. Collyer issued the primary order authorizing the collection under specified procedures. The previous order was BR 14-01. 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, with two exceptions.

First, queries of the BR metadata using RAS-approved selection terms for purposes of obtaining foreign intelligence information may occur only by manual analyst query since the NSA was unable to meet the Court's requirements due to technical issues. It appears that the government gave up in its efforts to introduce an automated query. The Privacy and Civil Liberties Oversight Board provided the only unclassified description of what the government had been trying to do with such a query: "In 2012, the FISA court approved a new and automated method of performing queries, one that is associated with a new infrastructure implemented by the NSA to process its calling records. The essence of this new process is that, instead of waiting for individual analysts to perform manual queries of particular selection terms that have been RAS approved, the NSA's database periodically performs queries on all RAS-approved seed terms, up to three hops away from the approved seeds." PCLOB, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court (Jan. 23, 2014).

Second, Judge Collyer changed the standard dragnet language to include chaining on "connections" in addition to actual calls. The first "hop" from a seed returns results including all identifiers (and their associated metadata) with a contact and/or connection with the seed. The second "hop" returns results that include all identifiers (and their associated metadata) with a contact and/or connection with an identifier revealed by the first "hop."

On June 26, 2014, FISC Judge Thomas F. Hogan ordered the publication of the March 28 Memorandum Opinion and Primary Order after the government reviewed and redacted the document.

The order in this matter was succeeded by BR 14-96.