Case: In re Motion in Opposition to Government's Imminent or Recently-Made Request to Resume Bulk Data Collection Under PATRIOT Act § 215 [Misc. 15-01]

On June 5, 2015, FreedomWorks Foundation, a non-profit political advocacy group, filed this motion in the U.S. Foreign Intelligence Surveillance Court to oppose the government's request for the continuation of authority for the bulk collection of telephony metadata under Section 215 of the Patriot Act. This bulk collection program was previously authorized, most recently by FISC Judge James E. Boasberg in 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.

The movants noted that Judge Boasberg's authorization expired on June 1, 2015, and the movants thus believed the government had or would be requesting continued authority. The movants opposed any continuance of metadata collection in light of Congress's amendment of Section 215 as part of the USA FREEDOM Act of 2015 and the Second Circuit's ruling holding metadata collection beyond the scope of Section 215 in ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015). The USA FREEDOM Act prohibited the bulk production of tangible things under 50 U.S.C. § 1861, and instead established a new mechanism for targeted production of call detail records which "shall take effect . . . 180 days after the enactment" of the USA FREEDOM Act.

As the movants expected, on June 8, 2015, the government filed an application to obtain continued authorization for telephony metadata for this 180-day transition period between the expiration of authorization under FISA Docket BR 15-24 and the new procedures authorized by the USA FREEDOM Act. That application was listed under FISA Docket BR 15-75. Supplemental briefs were also filed by the government and the movants in this action (FISA Docket Misc. 15-01).

On June 29, 2015, FISC Judge Michael W. Mosman approved the government's application in FISA  Docket BR 15-75 for continuation of authority to collect telephony metadata during the 180-day transition period. Therefore the motion in this matter was denied, and the matter closed.

On March 2, 2019, Luke Murry, National Security Advisor to Republican House Minority Leader Kevin McCarthy, discussed the status of the USA FREEDOM Act surveillance during a podcast for the national security website Lawfare. Mr. Murry disclosed that the Trump administration “hasn’t actually been using it for the past six months,” and that the administration might not ask Congress to renew its legal authority, which is set to expire on December 15, 2019.