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

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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 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.