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 13-158 NS-DC-0018
Docket / Court BR 13-158 ( 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 Mary A. McLaughlin on October 11, 2013, authorizing the Section 215 program until January 3, 2014. The terms of the primary order are identical to those set out previously by Judge Eagan in docket BR 13-109.

Judge McLaughlin wrote a supplementary memorandum describing her independent review of the issues, including the inapplicability of the Fourth Amendment to the production and the statutory interpretation of Section 215. Judge McLaughlin agreed with and adopted Judge Eagan's analysis in her August 29 opinion. (See BR 13-109, NS-DC-0017.) Judge McLaughlin found that U.S. Supreme Court precedent under United States v. Jones, 132 S. Ct. 945 (2012) did not point to a different result under the Fourth Amendment. Furthermore, Judge Eagan's statutory analysis of Section 215 was reinforced by Congress's re-enactment of the statute in 2011 after receiving information about the government's and the FISC's interpretation.

After Judge McLaughlin issued the October 11 order, the Center for National Security Studies filed a motion to establish a public briefing schedule, to submit an amicus curiae brief, and to suggest a hearing before the full FISC. On December 18, 2013, Judge McLaughlin granted the Center's motion to file an amicus brief on why FISA Section 501 does not authorize the bulk collection of telephony metadata records, but she denied all other requests. The Center's amicus brief, along with the FISC's order accepting the filing, can be found in Misc. 14-01, NS-DC-0071 in this Clearinghouse.

The reauthorization order in this matter was succeeded by BR 14-01, NS-DC-0051 in this Clearinghouse.

Elizabeth Homan - 04/14/2014
Brian Tengel - 03/04/2015


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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 - 2014
Case Closing Year 2014
Case Ongoing No
Case Listing NS-DC-0071 : In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things [FISA Docket Misc. 14-01] (FISC)
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
Memo and Order 10.11.13 10/11/2013 (FISC)
NS-DC-0018-0001.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order 10/15/2013 (FISC)
NS-DC-0018-0002.pdf | Detail
Document Source: Office of the Director of National Intelligence
Order 10.18.13 10/18/2013 (FISC)
NS-DC-0018-0003.pdf | Detail
Document Source: Office of the Director of National Intelligence
U.S. Response 11/08/2013
NS-DC-0018-0004.pdf | Detail
Document Source: Office of the Director of National Intelligence
Memo and Order 12.18.13 12/18/2013 (FISC)
NS-DC-0018-0005.pdf | Detail
Document Source: Office of the Director of National Intelligence
Judges McLaughlin, Mary A. (FISC, E.D. Pa.)
NS-DC-0018-0001 | NS-DC-0018-0005
Walton, Reggie B. (FISC, D.D.C.)
NS-DC-0018-0002 | NS-DC-0018-0003
Monitors/Masters None on record
Plaintiff's Lawyers Carlin, John P. (District of Columbia)
NS-DC-0018-0004
Gauhar, Tashina (District of Columbia)
NS-DC-0018-0004
Smith, Jeffrey Michael (District of Columbia)
NS-DC-0018-0004
Wiegmann, J. Bradford (District of Columbia)
NS-DC-0018-0004
Defendant's Lawyers None on record
Other Lawyers None on record

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