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

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.

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. 

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.