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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. (See BR 06-05, NS-DC-0009
in this Clearinghouse.)
On November 7, 2013, the American Civil Liberties Union (ACLU) and the Media Freedom and Information Access Clinic (MFIAC) filed a motion in the FISC for release of court records, including opinions that address the legal basis for the bulk collection of data under FISA. The plaintiffs argued that the First Amendment compels release of the judicial decisions and FISC Court Rule 62 grants the FISC discretion to publish its own orders, opinions, and decisions. The ACLU had previously moved for the FISC to release opinions that interpreted Section 215 of FISA, under docket Misc. 13-02. (See Misc. 13-02, Misc. 13-02, NS-DC-0020
in this Clearinghouse.) The litigation under Misc. 13-02 was still on-going at the time the ACLU filed this case, but Misc. 13-02 was limited to the disclosure of Opinions that addressed only Section 215 of FISA, not all bulk collection programs.
In December 2013, FISC Judge Reggie Walton permitted the motion of the Reporters Committee for Freedom of the Press and a group of 25 media organizations to file a brief as amici curiae.
As of June 2014, there has been no other activity on this docket that has been publicly disclosed. However, the ACLU is pursuing FOIA litigation for release of several FISC opinions interpreting Section 215 in the United States District Court for the Southern District of New York in the case of ACLU v. FBI
, NS-NY-0008. The ACLU has also challenged the constitutionality of the government's mass call-tracking program in ACLU v. Clapper
, NS-NY-0003.Elizabeth Homan - 05/23/2014
Jessica Kincaid - 06/09/2014