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 09-09 NS-DC-0014
Docket / Court BR 09-09 ( 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 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 ... read more >
For the 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, apparently do not include the parties' names, addresses or financial information or the call's content. Once collected, the records are stored for several years and may be queried, used, and disseminated only in accordance with "minimization rules" proposed by the government and approved by the Foreign Intelligence Surveillance Court ("FISC"). The most basic aspect of the minimization rules has been that the metadata records can be queried when there is a reasonable suspicion, based on specific and articulated facts, that the identifier that will be used as the basis for the query is associated with specified foreign terrorist organizations.

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 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. (See BR 06-05, NS-DC-0009 in this Clearinghouse.)

This matter is a continuation of the Section 215 program from July 2009 to September 2009. In this matter, the FISC continued to address significant, systemic issues of the NSA's noncompliance with the minimization procedures.

Under the previous docket number, BR 09-06 NS-DC-0013, the FISC had issued an order requiring the NSA to submit a declaration providing a complete description of the NSA's failure to comply with the court-ordered minimization procedures. On June 28, 2009, the United States submitted its response. The government informed the court that the results of some metadata queries had been uploaded by the NSA into a database to which other intelligence agencies had access. Providing such access may have resulted in unlawful dissemination of information about U.S. persons.

Under this matter, on July 9, 2009, the FISC ordered NSA to perform an end-to-end review of its handling of telephony metadata. The court ordered weekly reporting from the NSA listing information obtained or derived from the metadata collection that the NSA had shared with anyone outside the NSA. In each instance in which U.S. person information was shared, the Chief of Information Sharing at NSA must personally certify the necessity of sharing it.

The 110-page review, dated August 19, 2009, provided justification for the telephony metadata program but identified several serious instances of noncompliance with the minimization procedures. The review revealed the NSA was collecting a significant number of identifiers of persons located within the domestic United States without appropriate approval from the NSA Office of the General Counsel. The NSA also discovered that some data was available to the CIA, FBI, and National Counterterrorism Center, in contravention of the minimization procedures. The report summarized steps taken to remedy the instances of non-compliance. Soon after the completion of the review, the NSA conducted a "briefing" for the FISC: briefing materials later released by the Director of National Intelligence (but apparently not filed with the Court) are included in this case record.

The end-to-end review did not mark an end to the compliance incidents, however. In the subsequent case, BR 09-13, NS-DC-0015 in this Clearinghouse, the NSA orally informed the FISC of several more instances of mishandling data in September 2009, in contravention of the minimization procedures.

Elizabeth Homan - 04/14/2014
Jessica Kincaid - 07/21/2014


compress summary

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Issues and Causes of Action
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Issues
Constitutional Clause
Unreasonable search and seizure
Content of Injunction
Auditing
Monitoring
Recordkeeping
Reporting
Warrant/order for search or seizure
General
Confidentiality
Failure to supervise
Failure to train
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 U.S. Government, proceeding by an application by the FBI, on behalf of the NSA.
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 2009 - 2009
Case Closing Year 2009
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
Implementation of the Foreign Intelligence Surveillance Court Authorized Business Records FISA - NSA Review 06/25/2009
NS-DC-0014-0001.pdf | Detail
Document Source: Office of the Director of National Intelligence
Primary Order 07/07/2009 (FISC)
NS-DC-0014-0003.pdf | Detail
Document Source: Office of the Director of National Intelligence
Report of the United States 08/19/2009
NS-DC-0014-0002.pdf | Detail
Document Source: Office of the Director of National Intelligence
Business Records FISA: Presentation for the FISC 09/01/2009
NS-DC-0014-0004.pdf | Detail
Document Source: Office of the Director of National Intelligence
Judges Walton, Reggie B. (FISC, D.D.C.)
NS-DC-0014-0003
Monitors/Masters Mueller, Robert S. III (California)
NS-DC-0014-0002
Plaintiff's Lawyers None on record
Defendant's Lawyers None on record
Other Lawyers None on record

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