University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], FISA Docket BR 13-109 NS-DC-0017
Docket / Court BR 13-109 ( 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 particular Section 215 order was granted by FISC Judge Claire V. Eagan on July 18, 2013, authorizing the Section 215 program until October 11, 2013. The previous order was BR 13-80, NS-DC-0056 in this Clearinghouse. As usual, this order includes "minimization" procedures that impose a variety of limits on the NSA's use of the telephony metadata. The minimization procedures enumerated in this order are the same as the previous order with one exception. The new requirements no longer required review by the Court, the NSA's Office of General Counsel, and the Department of Justice of all proposed automated query processes. Instead, the new requirements only require review of new or modified automated query processes.

On August 29, 2013, Judge Eagan released a memorandum opinion considering whether the Fourth Amendment to the U.S. Constitution imposed any impediment to the government's collection. The FISC found that U.S. Supreme court precedent under Smith v. Maryland, 442 US. 735 (1979) compelled the conclusion that there is no Fourth Amendment prohibition on the collection. Furthermore, the Court considered the terms and legislative history of Section 215 to determine that the proposed collection was lawful and that the FISC should issue orders authorizing collection.

The order in this matter was succeeded by BR 13-158, NS-DC-0018 in this Clearinghouse.

Elizabeth Homan - 04/14/2014
Jessica Kincaid - 08/04/2014


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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
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 2013 - 2013
Case Closing Year 2013
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
Order [re classification review] 08/23/2013 (FISC)
NS-DC-0017-0002.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order [re renumbering footnotes] 08/29/2013 (2013 WL 5741573) (FISC)
NS-DC-0017-0003.pdf | WESTLAW | Detail
Document Source: Office of the Director of National Intelligence
Order [re declassification] 09/17/2013 (FISC)
NS-DC-0017-0004.pdf | Detail
Document Source: Office of the Director of National Intelligence
Center for National Security Studies Letter 09.26.13 09/26/2013
NS-DC-0017-0005.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order [re requests of non-party] 10/09/2013 (FISC)
NS-DC-0017-0006.pdf | Detail
Document Source: Office of the Director of National Intelligence
Amended Memorandum Opinion and Primary Order 10/11/2013 (FISC)
NS-DC-0017-0001.pdf | Detail
Document Source: Office of the Director of National Intelligence
Judges Eagan, Claire (N.D. Okla., FISC) [Magistrate]
NS-DC-0017-0001 | NS-DC-0017-0003
McLaughlin, Mary A. (E.D. Pa., FISC)
NS-DC-0017-0006
Walton, Reggie B. (D.D.C., FISC)
NS-DC-0017-0002 | NS-DC-0017-0004
Monitors/Masters None on record
Plaintiff's Lawyers None on record
Defendant's Lawyers None on record
Other Lawyers Martin, Kate (California)
NS-DC-0017-0005

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