Case: In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], FISA Docket BR 13-80

13-00080 | Foreign Intelligence Surveillance Court

Filed Date: 2013

Closed Date: 2013

Clearinghouse coding complete

Case Summary

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. Press release available here. Und…

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. 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, NS-DC-0009 in this Clearinghouse.)

This particular Section 215 order was granted by FISC Judge Roger Vinson on April 25, 2013, authorizing the Section 215 program until July 19, 2013. As usual, this order includes "minimization" procedures that impose a variety of limits on the NSA's use of the telephony metadata. It is currently not possible to compare the minimization procedures in this order to those in the previous order because the primary orders authorizing the program from September 16, 2011 until April 25, 2013 remain classified. The primary order issued on June 22, 2011 is the last available order for purposes of comparison.

The most significant difference between the order in this matter and the June 2011 order is the new authority to query the BR metadata using approved selection terms by manual analyst query or through an automated query process. The automated process queries and returns results to a "corporate store." The corporate store may then be searched by appropriately and adequately trained personnel. The FISC initially approved this automated query process in its November 8, 2012 order in docket number BR 12-178.

Judge Vinson also issued a secondary order on April 25, 2013. That order required Verizon Wireless to produce to the National Security Agency electronic copies of all call detail records or "telephony metadata" created by Verizon for communications between the United States and abroad or wholly within the United States, including local telephone calls.

On July 8, 2013, the Electronic Privacy Information Center ("EPIC") petitioned the Supreme Court for a writ of mandamus and prohibition or, in the alternative, a writ of certiorari with respect to the secondary order. EPIC claimed in particular that the FISC exceeded its statutory authority under Section 215 when it issued the order. Under that section, the "tangible things" sought must be "relevant" to an authorized investigation. EPIC argued that it was unlikely that all of Verizon's call records (the subject of the secondary order) could be relevant to an authorized investigation under Section 215. The Supreme Court denied EPIC's petition on November 18, 2013.

The FISC order in this matter was succeeded by BR 13-109, NS-DC-0017 in this Clearinghouse.

Summary Authors

Jessica Kincaid (8/4/2014)

Brian Tengel (2/18/2015)

People


Judge(s)

Vinson, Roger (District of Columbia)

Other Attorney(s)

Active

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Judge(s)

Vinson, Roger (District of Columbia)

Other Attorney(s)

Bamzai, Aditya (District of Columbia)

Barnett, Randy (District of Columbia)

Borgia, Michael T. (District of Columbia)

Brody, David (District of Columbia)

Butler, Alan (District of Columbia)

Callahan, Mary Ellen (District of Columbia)

Carlin, John P. (District of Columbia)

Cate, Fred H. (Indiana)

Chemerinsky, Erwin (California)

Donohue, Laura (Maryland)

Harper, James Warren (Ohio)

Harrison, Lindsay C (District of Columbia)

Jacobs, David (District of Columbia)

Rotenberg, Marc (District of Columbia)

Smith, Jeffrey Michael (District of Columbia)

Verrilli, Donald B. Jr. (District of Columbia)

Vladeck, Stephen I (District of Columbia)

Documents in the Clearinghouse

Document

13-00058

Docket

In re Electronic Privacy Information Center

Supreme Court of the United States

Nov. 18, 2013

Nov. 18, 2013

Docket

13-00080

Secondary Order

April 25, 2013

April 25, 2013

Order/Opinion

13-00080

Secondary Order

In re Application of the FBI for an Order Requiring the Production of Tangible Things From Verizon Business Network Services, Inc.

April 25, 2013

April 25, 2013

Order/Opinion

13-00080

Primary Order

2013 WL 5460137

April 25, 2013

April 25, 2013

Order/Opinion

13-00058

Petition for a Writ of Mandamus and Prohibition, or a Writ of Certiorari

In re Electronic Privacy Information Center

Supreme Court of the United States

July 8, 2013

July 8, 2013

Pleading / Motion / Brief

13-00080

Brief of Amicus Curiae Professors of Information Privacy And Surveillance Law in Support of Petitioner

In re Application of FBI for Order Requiring Production of Tangible Things from [redacted]

Supreme Court of the United States

Aug. 9, 2013

Aug. 9, 2013

Pleading / Motion / Brief

13-00080

Amicus Curiae Brief of Former Members of the Church Committee and Law Professors in Support of Petitioners

In re Application of FBI for Order Requiring Production of Tangible Things from [redacted]

Supreme Court of the United States

Aug. 12, 2013

Aug. 12, 2013

Pleading / Motion / Brief

13-00080

Recent Decision of the Foreign Intelligence Surveillance Court

In re Application of FBI for Order Requiring Production of Tangible Things from [redacted]

Supreme Court of the United States

Oct. 7, 2013

Oct. 7, 2013

Notice Letter

13-00080

Brief for the United States in Opposition

In re Application of FBI for Order Requiring Production of Tangible Things from [redacted]

Supreme Court of the United States

Oct. 11, 2013

Oct. 11, 2013

Pleading / Motion / Brief

13-00080

Reply to Brief of the United States in Opposition

In re Application of FBI for Order Requiring Production of Tangible Things from [redacted]

Supreme Court of the United States

Oct. 28, 2013

Oct. 28, 2013

Pleading / Motion / Brief

Resources

Docket

Last updated Aug. 7, 2022, 3:04 a.m.

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Act -- Telephony Metadata

Foreign Intelligence Surveillance Court

Key Dates

Filing Date: 2013

Closing Date: 2013

Case Ongoing: No

Plaintiffs

Plaintiff Description:

U.S. Government, proceeding by an application by the FBI, on behalf of the NSA.

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Case Details

Causes of Action:

FISA Title V order (PATRIOT Act § 215, business records or other tangible things), 50 U.S.C. §§ 1861-1862

Constitutional Clause(s):

Unreasonable search and seizure

Availably Documents:

Injunctive (or Injunctive-like) Relief

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Order Duration: 2013 - 2013

Content of Injunction:

Auditing

Monitoring

Recordkeeping

Reporting

Warrant/order for search or seizure

Issues

General:

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues