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Case: In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [redacted]

15-00099 | Foreign Intelligence Surveillance Court

Filed Date: 2015

Clearinghouse coding complete

Case Summary

Following the September 11, 2001 terrorist attacks, the National Security Agency (NSA) began the bulk collection of "telephony metadata" from all available domestic phone calls. This metadata did not include the call's content or party names, but did include phone numbers placed and received; the date, time and duration of calls; some location identifiers; and calling card numbers. In 2006, the government sought and received approval of the program from the U.S. Foreign Intelligence Surveillanc…

Following the September 11, 2001 terrorist attacks, the National Security Agency (NSA) began the bulk collection of "telephony metadata" from all available domestic phone calls. This metadata did not include the call's content or party names, but did include phone numbers placed and received; the date, time and duration of calls; some location identifiers; and calling card numbers. In 2006, the government sought and received approval of the program from the U.S. Foreign Intelligence Surveillance Court (FISC) under Section 501 of the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended by Section 215 of the USA PATRIOT Act. Since 2006, the telephony metadata collection program has been reauthorized many times, 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 (NS-DC-0070 in this Clearinghouse).

On June 2, 2015, however, Congress passed the USA FREEDOM Act of 2015, which prohibited the bulk collection of telephony metadata under Section 215, and instead established a new mechanism for targeted production of call detail records that "shall take effect . . . 180 days after the enactment" of the USA FREEDOM Act. On June 29, 2015, in FISC Docket No. BR 15-75, FISC Judge Michael W. Mosman held that the USA FREEDOM Act allowed the government to continue collecting telephony metadata during this interim 180-day period. See NS-DC-0086 in this Clearinghouse for more information about this case.

On August 27, 2015, the government submitted another application to the FISC requesting telephony metadata during this interim period. This application was granted by Judge Mosman on August 27, 2015. The differences between this application and the one from Docket No. BR 15-75 are unclear; much of the orders for the applications are redacted.

In this case, however, the government also included a request to retain and use telephony metadata collected for an additional three months after the November 28, 2015 deadline provided for under the USA FREEDOM Act. The government claimed that it would only use data in these three months to verify the “completeness and accuracy” of the USA FREEDOM Act’s new mechanism for collecting telephony metadata.

On September 17, 2015, Judge Mosman appointed Preston Burton to serve as amicus curiae on this additional request—that is, whether the government was permitted to retain and use telephony metadata for this limited purpose after November 28, 2015.

On October 29, 2015, the court-appointed amicus submitted a memorandum of law that argued that the USA FREEDOM Act did not preclude the government from retaining and using the telephony metadata after the deadline. The amicus also insisted, however, that the FISC mandate minimization procedures with a plan for prompt destruction of the telephony metadata.

On November 24, 2015, Judge Mosman issued an opinion largely agreeing with the court-appointed amicus’s memorandum. He noted that no provision of the USA FREEDOM Act “dictates any particular disposition" of the telephony metadata previously collected in bulk. Instead, the USA FREEDOM Act provided that the government could adopt minimization procedures to determine what to do with the metadata after November 28, 2015.

Judge Mosman went on to conclude that the minimization procedures limited the use of the metadata to "verifying the completeness and accuracy of call detail records" under the new metadata production mechanism provided for under the USA FREEDOM Act. Judge Mosman noted that the minimization procedures provided that the NSA would stop this limited usage on February 29, 2016.

Judge Mosman also authorized, however, the retention of the metadata as potential evidence in civil litigation, as required by orders issued by a federal district court in the Northern District of California. Judge Mosman held that the government was permitted to retain the metadata as evidence as long as needed, but he noted that the government was “under a continuing obligation to notify [the FISC] of any additional material developments in the district court litigation.” Finally, Judge Mosman concluded that once the government was no longer required to preserve this metadata as evidence, it should be promptly destroyed.

On March 2, 2019, Luke Murry, National Security Advisor to Republican House Minority Leader Kevin McCarthy, discussed the status of the USA FREEDOM Act 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 was set to expire on December 15, 2019.

Summary Authors

John He (6/4/2017)

Lisa Limb (4/4/2019)

People


Judge(s)

Mosman, Michael W. (Oregon)

Attorneys(s) for Plaintiff

Burton, Preston (District of Columbia)

Attorneys(s) for Defendant

Anzaldi, Matthew A. (District of Columbia)

Carlin, John P. (District of Columbia)

Evans, Stuart J. (District of Columbia)

Gilligan, James J (District of Columbia)

Judge(s)

Mosman, Michael W. (Oregon)

Attorneys(s) for Plaintiff

Burton, Preston (District of Columbia)

Attorneys(s) for Defendant

Anzaldi, Matthew A. (District of Columbia)

Carlin, John P. (District of Columbia)

Evans, Stuart J. (District of Columbia)

Gilligan, James J (District of Columbia)

Documents in the Clearinghouse

Document

15-00099

Docket

In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things

Aug. 28, 2015

Aug. 28, 2015

Docket

15-00099

Primary Order

In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things From [Redacted]

Aug. 27, 2015

Aug. 27, 2015

Order/Opinion

15-00099

Order Appointing an Amicus Curiae

In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things

Sept. 17, 2015

Sept. 17, 2015

Order/Opinion

15-00099

Briefing Order

In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things

Oct. 7, 2015

Oct. 7, 2015

Order/Opinion

15-00099

Memorandum of Law by Amicus Curiae Regarding Government's August 27, 2015, Application to Retain and Use Certain Telephony Metadata After November 28, 2015

In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things

Oct. 29, 2015

Oct. 29, 2015

Internal memorandum

15-00099

Response of the United States to the Memorandum of Law by Amicus Curiae

In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things

Nov. 6, 2015

Nov. 6, 2015

Pleading / Motion / Brief

15-00099

Reply Memorandum of Amicus Curiae to the United States Response to October 29, 2015 Memorandum of Law

In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things From [Redacted]

Nov. 9, 2015

Nov. 9, 2015

Pleading / Motion / Brief

15-00099

Opinion and Order

In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things

Nov. 24, 2015

Nov. 24, 2015

Order/Opinion

15-00099

Report Describing the Government's Assessment Whether the End of Bulk Collection has Mooted Claims of Certain Plaintiffs

In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things

Jan. 8, 2016

Jan. 8, 2016

Findings Letter/Report

Resources

Docket

Last updated Nov. 28, 2022, 3:14 a.m.

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Act -- Telephony Metadata

Foreign Intelligence Surveillance Court

Key Dates

Filing Date: 2015

Case Ongoing: No reason to think so

Plaintiffs

Plaintiff Description:

The Federal Bureau of Investigation and the National Security Agency.

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

United States, Federal

Case Details

Causes of Action:

FISA Title V order (PATRIOT Act § 215, business records or other tangible things), 50 U.S.C. §§ 1861-1862

Special Case Type(s):

Warrant or subpoena application

Availably Documents:

Trial Court Docket

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Content of Injunction:

Recordkeeping

Warrant/order for search or seizure

Issues

General:

Confidentiality

Record-keeping

Search policies

Terrorism/Post 9-11 issues