Case: In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 10-70

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. 

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.)

This particular Section 215 order was granted by FISC Judge Reggie B. Walton on October 29, 2010. 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 substantially similar to those in the previous order (BR 10-49), but there are numerous small changes, including:

• This order noted that the NSA will maintain telephony metadata in recovery back-up systems while the previous order did not mention this.

• This order required that telephony metadata carry unique markings such that software and other controls can restrict access to it while the previous order did not require this.

• This is the first primary order to contain the term "seed" - i.e., an identifier used to query telephony metadata.

• This order required that the NSA access telephony metadata for purposes of obtaining foreign intelligence information only through contact chaining queries of the telephony metadata using "seeds."

• This order required the NSA to file with the FISC, approximately every 30 days, a report of the queries made since the last report, while the previous order only required such a report within 45 days of the issuance of the order.

• This order required that the NSA conduct only one spot check during the authorization period to ensure that NSA is receiving only data as authorized by the Court while the previous order required two spot checks during the authorization period.

Some of the changes between the orders appear to be stylistic; others appear to be driven by compliance issues in that NSA analysts were querying domestic phone data without knowing that they were doing so. The authorization expired on January 21, 2011, at 5:00 p.m.

The order in this matter was succeeded by BR 10-82.