Case: In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [redacted], FISC BR 13-25

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.)

In this case, on Feb. 19, 2013, FISC Judge John D. Bates determined that the government's application for a production order satisfied 50 U.S.C. § 1861. The Court began by explaining § 1861's two requirements for investigating a U.S. person. Under the statute, the Court must determine whether the application demonstrates reasonable grounds to believe (1) that the tangible things sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities; and (2) that the investigation is not being conducted solely upon the basis of activities protected by the First Amendment.

In a heavily redacted part of the opinion, the Court held that the application satisfied the first statutory requirement: the records sought were relevant to an authorized investigation to protect against international terrorism. The second requirement, however, presented a more difficult question. Because none of the subject's alleged conduct or speech fell outside the scope of First Amendment protections, the Court was skeptical that a consideration of the words and conduct alone established reasonable grounds to believe that the investigation was not being conducted solely on the basis of the First Amendment. Despite these concerns, the Court ultimately held that the application also met the second requirement under § 1861. The Court explained that the statutory text does not confine it to considering only the activities of the subject of the investigation. It may also consider "related conduct" in determining whether the investigation is based solely on First Amendment grounds. Under this reading of § 1861, the Court held that the government's application satisfied the second statutory requirement because the investigation was centered not only on the subject's own words and conduct. It also focused on other "admitted or suspected" activities that would not be protected by the First Amendment, although the details of these activities were redacted.

The declassification of the Feb. 2013 opinion was itself the subject of separate litigation, In re Orders Issued by This Court Interpreting Section 215 of the PATRIOT Act [FISA Docket Misc. 13-02]; it resulted in the posting of this opinion by the FISA Court on August 27, 2014.