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 production of tangible things [redacted information] FISA Docket BR 09-15 NS-DC-0016
Docket / Court BR 09-15 ( 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.)

In 2009, FISC Judge Reggie B. Walton presided over the applications for the orders continuing the Section 215 program. Because of incidents where the NSA had failed to comply with the FISC's minimization procedures for disseminating metadata (described in BR 09-09, NS-DC-0014 and BR 09-13, NS-DC-0015 in this Clearinghouse), Judge Walton was concerned about NSA compliance. As a result, on September 25, 2009, Judge Walton ordered representatives of the NSA and the National Security Division of the Department of Justice to appear for a hearing, held September 28, 2009, in order to inform the FISC more fully of the scope and circumstances of the incidents, and to allow the FISC to assess whether the FISC's order should be modified or rescinded and whether other remedial steps should be imposed.

In light of the hearing, on October 30, 2009, Judge Walton issued this matter's primary order, continuing the Section 215 program until late December 15, 2009. Judge Walton permitted NSA analysts who were authorized to query the metadata to share the results among themselves and other NSA personnel who had received appropriate training and access permissions. Judge Walton also permitted the government to query the metadata for historical purposes, using a telephone identifier that is not currently associated with one of the targeted foreign powers, but that was for a period of time in the past. Because those queries do not satisfy the "reasonable articulable suspicion" standard, Judge Walton was concerned about the likelihood that the queries could reveal communications of United States persons who were not subjects of investigation. Therefore, Judge Walton reiterated the limits on the dissemination of that metadata and the reporting requirement. The reports had to describe how the NSA conducted the queries and minimized any information obtained therefrom.

One additional document has been declassified, an order and opinion from November 5, 2009, by Judge Walton. In this supplemental order and opinion, Judge Walton found that the NSA reports to the FISC, as required by the October 30 primary order, were not sufficiently detailed to allay the Court's concern about the likelihood that the NSA queries could reveal communications of United States persons who were not subjects of investigation. Therefore, the Court ordered more rigorous reporting about how the NSA conducted queries of the metadata.

The November 5 order referenced several incidents where the NSA failed to comply with the minimization procedures and the reporting requirement related to FISA applications BR 08-13, BR 09-01, BR 09-06, BR 09-09, and BR 09-13. (See BR 09-13, NS-DC-0015 in this Clearinghouse.)

For the next application, BR 09-19, see NS-DC-0053. However, the primary order for BR 09-19 remains classified, so the next available primary order for comparison purposes is BR 10-10, NS-DC-0041 in this Clearinghouse.

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


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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 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 Plaintiff is the Federal Bureau of Investigation, acting on behalf of 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 2009 - 2009
Case Closing Year n/a
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
Supplemental Opinion and Order 11/05/2009 (2009 WL 9150915) (FISC)
NS-DC-0016-0001.pdf | WESTLAW | Detail
Document Source: Office of the Director of National Intelligence
Primary Order 11/30/2009 (FISC)
NS-DC-0016-0002.pdf | Detail
Document Source: Office of the Director of National Intelligence
Judges Walton, Reggie B. (D.D.C., FISC)
NS-DC-0016-0001 | NS-DC-0016-0002
Monitors/Masters None on record
Plaintiff's Lawyers None on record
Defendant's Lawyers None on record
Other Lawyers None on record

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