Case: In re [Redacted] a U.S. Person

For the Civil Rights Litigation Clearinghouse collection of Foreign Intelligence Surveillance Act (FISA) matters, see our special collection.

On January 21, 2016, the government submitted an application to the Foreign Intelligence Surveillance Court (FISC) to install pen register and trap and trace (PR/TT) devices on a certain cell phone pursuant to FISA. Pen registers are surveillance devices that capture the phone numbers dialed on outgoing telephone calls; trap and trace devices capture the numbers identifying incoming calls. The government's application also sought to "record and decode all post-cut-through digits." Post-cut-through digits are numbers dialed after a call has been connected (i.e., "cut through")—for example, if an individual calls her bank and then, per the bank's request, dials in the digits of her account number, she would be inputting post-cut-through digits.

FISC Judge Thomas F. Hogan approved the application. He included, however, a caveat—the government was not permitted to "make any affirmative investigative use of post-cut-through digits . . . that do not constitute call dialing, routing, addressing, or signaling information, unless separately authorized by this Court." Judge Hogan noted that this decision was consistent with historical FISC practice: "Since 2006, FISC judges have issued PR/TT orders . . . that . . . authorize acquisition of all post-cut-through digits, while generally prohibiting use of those digits that are not dialing, routing, addressing, or signaling . . . information."

Although Judge Hogan approved the application, on February 21, 2016, Judge Hogan issued an order certifying the question to the Foreign Intelligence Surveillance Court of Review (FISCR). Judge Hogan noted that, to date, the FISC had not issued an opinion regarding whether collection of post-cut-through digits was permitted under FISA—instead, the FISC simply adopted the government's argument that the collection of such digits was permitted. He observed, however, that no other court in the country (other than the FISC) had authorized the collection of post-cut-through digits under a PR/TT order. Other courts had reasoned that the definitions of PR/TT devices excludes any device that acquires the contents of calls; post-cut-through digits, however, can sometimes be part of the contents of a call (such as in the bank phone call discussed above), and the government claimed that there was no way to distinguish content and noncontent digits. Judge Hogan was thus concerned about the weight of contrary authority against the FISC's historical practice.

As Judge Hogan noted, the FISC had never fully considered the merits of this issue. But the USA FREEDOM Act, which was passed on June 2, 2015, provided the FISC with two new options: (1) the FISC could appoint an amicus curiae to assist the FISC on an issue that "presents a novel or significant interpretation of the law" and (2) the FISC could certify a question of law to the FISCR. Judge Hogan reasoned that appointing an amicus was not appropriate because of the urgent nature of the PR/TT application. But he concluded that, given the disagreement between the FISC and other courts, certification of the question to the FISCR was warranted.

On April 14, 2016, the FISCR, in a per curiam opinion from FISCR Judges William C. Bryson, Jose A. Cabranes, and Richard C. Tallman, concluded that courts could issue a PR/TT order authorizing the collection of post-cut-through digits. The court also held that collection of such digits did not violate the Fourth Amendment, even if the government incidentally collected digits that made up a call's content. In re Certified Question of Law, 858 F.3d 591 (FISA Ct. Rev. 2016).

In The New York Times Co. and Charlie Savage v. National Security Agency, 15 Civ. 2383 (KBF), the New York Times submitted a FOIA request for, among other things, copies of and declassification review of the NSA Inspector General Report on the FISA PR/TT program. On November 10, 2015, the NSA Inspector General Report on the audit of the NSA’s compliance with the FISC order authorizing the NSA to collect information using PR/TT (PR/TT program) was released in connection with the case. Parts of that report are still redacted, but what was released is summarized in relevant part below.  

The purpose of the audit was to test whether controls to ensure that the NSA complied with the key terms of the PR/TT order, which was issued on July 14, 2004, were operating effectively. The order authorized the NSA to collect and retain electronic communications metadata using PR/TT to protect against international terrorism. Since the first order was issued in 2004, the NSA issued subsequent orders every ninety days, but the PR/TT program expired on December 9, 2011. The New York Times Co. and Charlie Savage v. National Security Agency, 15 Civ. 2383 (KBF) at 3. The specifics of each order sometimes changed, but the core authority– to collect and retain electronic metadata via PR/TT– remained. To protect U.S. privacy rights, the order specified terms and restrictions regarding the collection and retention of information obtained under the order. [The report does not detail those terms and restrictions]. 

The report concluded that the NSA’s controls were adequate to provide reasonable assurance of compliance with the PR/TT program. It further provided that NSA management must ensure that the controls continue to be effective.