University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name In Re Application of the Federal Bureau of Investigation for an order requiring the production of tangible things from [redacted information] FISA Docket BR 06-05 NS-DC-0009
Docket / Court BR 06-05 ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Telephony Metadata
Foreign Intelligence Surveillance Court
Case Summary
For the complete Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.

On January 17, 2014, the Director of National Intelligence authorized the declassification and ... read more >
For the complete Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.

On January 17, 2014, the Director of National Intelligence authorized the declassification and public release of numerous orders approving the National Security Agency's ("NSA") so-called "Bulk Telephony Metadata Program" under Section 501 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), commonly referred to as Section 215 of the USA PATRIOT Act. Press release available here.

Under the program, the NSA has collected records from large telecommunication companies about, apparently, virtually all domestic telephone calls. These records, termed "telephony metadata," include the phone numbers placed and received; the date, time and duration of calls; some location identifiers; and calling card numbers. The records, however, allegedly do not include the parties' names, addresses, or financial information or the call's content.

The program began under executive authority alone following the September 11, 2001 terrorist attacks. Subsequently, in 2006, the federal government first sought approval of the program from the Foreign Intelligence Surveillance Court ("FISC") under Section 215 of the USA PATRIOT Act. This Section 215 order must be reviewed and reapproved by the FISC essentially every 90 days. It has been approved dozens of times by many different federal judges, on the FISC, since its initial approval on May 24, 2006 by the FISC.

This Clearinghouse case record is for the first application and granting of the order. On May 24, 2006, the Director of the Federal Bureau of Investigations first applied to the Foreign Intelligence Surveillance Court (FISC) for an order under Section 501(c)(1) of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1861, requesting production of bulk telephony metadata from telephone service providers for ninety days to the National Security Agency (NSA). The identity of the subject of the investigation was redacted from court documents, as well as the identity of the service providers.

The government's May 23, 2006 memo of law supporting the application requested bulk collection of telephony metadata because of the potential intelligence derived from metadata analysis. Bulk collection is necessary, the government argued, because "analysis is possible [] only if the Government has collected and archived a broad set of metadata that contains within it the subset of communications that can later be identified as terrorist-related." Archiving the metadata would allow analysts to use the data "in a targeted way to find the terrorists tomorrow." Moreover, the government claimed that even if the metadata from non-terrorist communications produced nothing relevant, title V of FISA did not demand that production collect only information strictly relevant to the investigation at hand.

The court order signed by Judge Malcolm J. Howard authorized acquisition of the metadata, but required minimization procedures, including limitation to phone numbers for which there is a reasonable, articulable suspicion that the number is associated with the subject; access limited to authorized NSA analysts; and routine monitoring by the NSA Office of the General Counsel. The order stated that it would expire on August 18, 2006. The court issued an Amended Order on August 8, 2006, which the government has not released to the public.

In August 2006, the NSA provided a report to the FISC detailing compliance with the minimization procedures required under the May 24, 2006 order. The NSA reported several instances of inadvertent collection of substantive content of communications, including credit card numbers and names used to place collect calls.

On July 20, 2009, the Department of Justice moved to unseal the May 24, 2006 motion and court order in order to submit it to various intelligence committees in the United States Senate and House of Representatives. Judge Roger Vinson entered the order on July 22, 2009.

The order in this matter was succeeded by BR 06-08, NS-DC-0031 in this Clearinghouse.

Elizabeth Homan - 04/06/2014


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Monitoring
Recordkeeping
Reporting
Warrant/order for search or seizure
General
Confidentiality
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Causes of Action FISA Title V order (PATRIOT Act § 215, business records or other tangible things), 50 U.S.C. §§ 1861-1862
Defendant(s) None on record
Plaintiff Description Plaintiff is the National Security Agency.
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement

Source of Relief Litigation
Form of Settlement None on record
Order Duration 2006 - 2006
Case Closing Year 2006
Case Ongoing No
Additional Resources
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Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

Docket(s)
No docket sheet currently in the collection
General Documents
Memorandum of Law in Support of Application for Certain Tangible Things for Investigations to Protect Against International Terrorism 05/23/2006
NS-DC-0009-0004.pdf | Detail
NSA Report to the Foreign Intelligence Surveillance Court 08/17/2006
NS-DC-0009-0001.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order 08/18/2006 (2006 WL 7137486) (FISC)
NS-DC-0009-0028.pdf | WESTLAW | Detail
Document Source: Westlaw
Order [Granting Motion to Unseal with Accompanying Motion] 07/22/2009 (FISC)
NS-DC-0009-0003.pdf | Detail
Document Source: Office of the Director of National Intelligence
Judges Howard, Malcolm Jones (FISC, E.D.N.C.)
NS-DC-0009-0028
Vinson, Clyde Roger (N.D. Fla.)
NS-DC-0009-0003
Monitors/Masters None on record
Plaintiff's Lawyers Barker, James A (District of Columbia)
NS-DC-0009-0004
Bradbury, Stephen A (District of Columbia)
NS-DC-0009-0004
Defendant's Lawyers None on record
Other Lawyers None on record

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