Case: In re Application of the Federal Bureau of Investigation for Orders Requiring the Production of Call Detail Records

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On November 30, 2015, the Foreign Intelligence Surveillance Court (FISC) issued a primary order granting the government's Verified Application for Orders Requiring the Production of Call Detail Records. Though that order was not publicly released, Judge Thomas F. Hogan released a memorandum opinion on December 31, 2015 analyzing the application in accordance with Sections 101 and 103 of the USA FREEDOM Act, which went into effect on November 29, 2015 in an effort to prevent bulk telephony metadata collection. This was the first opportunity for the FISC to grapple with these issues. Section 103 "requires that a specific selection term . . . be used as the basis for the production of tangible things sought" and Section 101 sets distinct requirements for call detail records provided on an ongoing basis.

Judge Hogan found that the application met Section 103's requirement for a specific selection term. While the portion of the opinion discussing the term chosen for this investigation was redacted, Judge Hogan wrote that the term chosen "specifically identifie[d] an individual, account, or personal device," requirements from Section 103.

Continuing his Section 103 analysis, he added that the application for call detail records also contained a required "statement of facts showing that . . . there are reasonable grounds to believe that the call detail records sought to be produced based on the specific selection term required under [Section 103] are relevant to such a investigation." Judge Hogan discussed that the facts provided showed that the classified terrorist group involved in this investigation was using domestic phone calls in its work, and that the application established probable cause that the specific terms used would identify individuals that would assist in the investigation. He described this search for individuals using the search terms as the "first hop." He noted that further information found after investigation into individuals identified from the first hop, which he called the "second hop," did not require additional specified selection terms, because Section 103 only requires that this search be based on "session-identifying information" from the first hop, not a "specific term" like the statute requires for the first hop.

Closing his Section 103 analysis, Judge Hogan found that the application contained a statement of facts showing "that there is reasonable, articulable suspicion that the specific selection term is associated with a foreign power engaged in international terrorism activities." He noted that this showing was less demanding than a showing of probable cause, and that the government had met that burden. He defined international terrorism based on Section 103's definition of the term, which was activities that:

(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or any State, or that would be a violation of the criminal laws of the United States or any State;

(2) Appear to be intended (A) to intimidate or coerce a civilian population; (B) to influence the policy of a government by intimidation or coercion; or (C) to affect the conduct of a government by assassination or kidnapping; and

(3) occur totally outside the United States or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum

Turning to the Section 101 analysis, Judge Hogan confirmed that the minimization procedures in the application met that Section's requirements. He noted that the application mirrored the NSA's minimization procedures. He highlighted the NSA's policy of making sure that a dissemination based on call detail records will focus on foreign activity and not activities of a U.S. person unless that person consented, the information is publicly available, their identity is necessary to understand the foreign intelligence activity, or the dissemination is for law enforcement purposes. He also said that the NSA's policy of destroying call detail information within five years of collection is enough to comply with FISA.

However, in conducting this analysis, Judge Hogan flagged a potential conflict in statutory language in FISA related to minimization procedures. He noted that Section 101 in the USA FREEDOM Act required the government to promptly destroy information deemed to not be foreign intelligence information, but the USA FREEDOM Act did not amend Section 501(g)(2)(C) of FISA that requires the government to retain information that a crime is being committed or is about to be committed. Judge Hogan reconciled these sections by noting that "prompt," defined by the Merriam-Webster Dictionary as "being ready and quick to act as occasion demands," allowed the government to retain evidence of a crime as FISA requires. If the information is not evidence of a crime and not foreign intelligence information, then, Judge Hogan said, it must be quickly destroyed. That didn't impact the outcome of the application in this case, but Judge Hogan appeared to use this definition as dicta to influence the analysis of future FISA applications.

The rest of this docket appears to be redacted. The case is presumed to be closed.