Case: In re Applications of the Federal Bureau of Investigation for Orders Requiring the Production of Tangible Things [BR 15-77 & 15-78]

In 2015, the U.S. government submitted these two applications to the U.S. Foreign Intelligence Surveillance Court (FISC) under Section 501 of the Foreign Intelligence Surveillance Act of 1978 (as amended by Section 215 of the PATRIOT Act of 2001) for "business records" orders. This case does not appear to involve the bulk production of telephone records as in FISA Docket BR 15-75. The factual details of the applications remain classified, but this case is relevant as it is the first FISC interpretation of Section 501, as amended, following the passage of the USA FREEDOM Act of 2015 on June 2, 2015.

Section 215 of the PATRIOT Act, which authorized FISC to issue orders for the production of business records, expired on June 1, 2015. Instead of re-authorizing Section 215, Congress passed the USA FREEDOM Act of 2015. The USA FREEDOM Act did not explicitly re-authorize Section 215—instead, the Act amended the expiration date found in the sunset provision of Section 215 to December 15, 2019. The Act also provided for the appointment of amicus curiae in the FISC under certain circumstances. The central legal issue was whether the USA FREEDOM Act effectively restored Section 215 of the PATRIOT Act, or whether instead Section 501 of FISA should revert back to its pre-PATRIOT status.

In his June 17, 2015 opinion in this matter, FISC Judge F. Dennis Saylor IV decided two issues. First, Judge Saylor held that an amicus curiae was not required, determining that "the appropriate outcome is sufficiently clear, such that no reasonable jurist would reach a different decision." Second, Judge Saylor held that the USA FREEDOM Act did reinstate the FISC's authority to issue business records orders, determining that it was the intent of Congress to do so based on the amendment of Section 215's sunset provision.

The second part of Judge Saylor's holding was the basis of the FISC's decision in FISA Docket BR 15-75  re-authorizing the bulk collection of telephony metadata under Section 215 of the PATRIOT Act.