Case: In re production of tangible things from [redacted information] FISA Docket BR 08-13

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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, 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 matter started when the Director of the FBI applied on December 12, 2008 to the FISC for a Section 215 order, to run until March 6, 2009. The resulting order, signed that day by Judge Reggie Walton, was substantially similar to the previous order under FISA docket BR 08-08. One difference from the previous order is the updated minimization procedures in light of the 2008 revision of the Attorney General's Guidelines for Domestic FBI Operations. A second difference pertains to internal management of the NSA program. Previously, the Department of Justice was required to review a sample of NSA's justifications for querying the data at least twice every sixty days. This order changed the time requirement to twice every ninety days. Furthermore, NSA's Office of General Counsel had been required to conduct random spot checks at least twice every sixty days. This order changed the time requirement to twice every ninety days. The final difference is that the NSA was required to file a report with the Court describing its activities within forty-five days, instead of the prior sixty-day deadline.

In a supplemental opinion, Judge Walton noted that this application was the first in which the government identified the provisions of the Stored Communications Act, 18 U.S.C. §§ 2702-2703, relevant to orders issued under 50 U.S.C. § 1861. Reviewing the legislative history of the USA PATRIOT Act and the amendments to the Stored Communications Act at 18 U.S.C. § 2709, the FISC found implicit permission for the production of records pursuant to a FISC order under Section 1861. 2008 WL 9475145.

During the middle of the period covered by the order, on January 15, 2009, the Department of Justice filed a notice with the Court that it had recently been discovered that the government had been querying the collected records in direct contravention of the court order and contrary to the sworn attestations of several Executive Branch Officials. On January 28, 2009, the FISC ordered further briefing on the compliance incident from executives such as the Director of the FBI, the Deputy Attorney General of the United States, and the NSA Inspector General. 2009 WL 9157881.

In an order dated March 2, 2009, Judge Walton found that the NSA had, on a daily basis, accessed the telephony records for the purpose of comparing it with thousands of phone numbers that had not met the reasonable articulable suspicion standard required for such comparisons under the applicable minimization rules. The vast majority of individual identifiers that the NSA used for queries, it turns out, did not pertain to an authorized investigation under 50 U.S.C. § 1861. The court said the government's proffered reason for misunderstanding the original court order "strain[ed] credulity." Besides finding violations of court orders in previous FISA dockets from BR 06-05 to BR 08-08, the court also found systemic noncompliance issues at the NSA such that the court-ordered minimization procedures had never functioned effectively. 2009 WL 9150913.

Ultimately, the court ruled that it would not be prudent to cease acquisition of the data. However, the court did not permit the government to access the data until it was sufficiently assured that government developed the personnel and technological competency to access the data using minimization procedures. 2009 WL 9150913.

There are no other documents available in this case. However, the issue of noncompliance with minimization procedures continued to arise in subsequent court orders throughout 2009, including in the following docket, BR 09-01.