Case: In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things [FISA Docket Misc. 14-01]

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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.)

The particular Section 215 order at issue in this case was granted by FISC Judge Mary A. McLaughlin on October 11, 2013, authorizing the Section 215 program until January 3, 2014. The order can be found in BR 13-158. After the order issued, the Center for National Security Studies filed a motion to establish a public briefing schedule, to submit an amicus curiae brief, and to suggest a hearing before the full FISC. On December 18, 2013, the Court (Judge McLaughlin) granted the Center's motion to file an amicus brief on why FISA Section 501 does not authorize the bulk collection of telephony metadata records, but it denied all other requests. The Court directed the Center to file its amicus brief in this Miscellaneous Docket 14-01 in order to ensure that other FISC judges have access to the brief when considering future applications for metadata collection.

On April 3, 2014, the Center filed a motion in this docket asking the FISC for permission to submit a brief in excess of 15 pages but not exceeding 7,000 words. The Center simultaneously filed its amicus brief. Later that day, the Court issued an order granting the motion and accepting the brief for filing. No further filings or actions have been made public as of March 2019.