Case: In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [redacted], FISA Docket BR 15-24

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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 matter is a continuation of the Section 215 program from February 26, 2015, to June 1, 2015, which marks the statutory sunset of the program. On February 26, 2015, FISC Judge James E. Boasberg issued the primary order authorizing the collection under specified procedures. The previous order was BR 14-166. 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 a few exceptions:

First, Judge Boasberg modified the language authorizing the NSA to share the query results. He provided that the "NSA may share results from intelligence analysis queries of the BR metadata, including U.S. person identifying information, with Executive Branch personnel (1) in order to enable them to determine whether the information may be exculpatory or otherwise discoverable in legal proceedings." The FISC's previous Section 215 order, which appears in BR 14-166, stipulated that the results could be shared with Executive Branch personnel to enable them to determine whether the information "contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings." Judge Boasberg also slightly changed the language in a footnote about the technical controls the NSA has implemented. He specified that, in cases of imminent threat to human life, the NSA may bypass these technical controls to conduct queries with RAS-approved seeds "that have been temporarily blocked by technical restraints." The quoted phrase did not appear in the previous Section 215 order.

Judge Boasberg also added two paragraphs at the end of the order that impose various duties on the government. In the first paragraph, he began by acknowledging that three cases challenging the legality of the Section 215 program are currently pending before federal circuit courts. The cases are ACLU v. Clapper, No. 14-42 (2d Cir. argued Sept. 2, 2014), Klayman v. Obama, No. 14-5004 (D.C. Cir. argued Nov. 4, 2014), and Smith v. Obama, No. 14-35555 (9th Cir. argued Dec. 8, 2014). (The links go to the case records in this Clearinghouse.) Judge Boasberg then instructed the government that if any of these opinions is issued before the primary order expires in June, the government must promptly notify the FISC if its implementation of this order changes as a result of the opinion. In the second new paragraph, Judge Boasberg noted that the government filed its application four days late in this case and that it must file any request to renew this order by May 22, 2015.

Judge Boasberg also indicated that if Congress amends 50 U.S.C. § 1861 before the government files its reauthorization request, the government must provide a legal memorandum, along with its request, to explain any issues of law raised by the legislation that the FISC has not previously considered. If Congress fails to amend the statute, however, the government must furnish a memorandum addressing the FISC's authority to continue the program beyond June 1, 2015, in light of the PATRIOT Act's sunset provision.