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.)

On March 5, 2009, the Director of the FBI applied to the FISC for a Section 215 order, set to expire on May 29, 2009. The Clearinghouse does not have a copy of the primary order because it has not been disclosed. This order came on the heels of an order under FISA Docket 08-13, NS-DC-0011, in which FISC Judge Reggie Walton ruled that the NSA had not effectively complied with the court-ordered minimization procedures.

On April 30, 2009, the NSA notified the Department of Justice that the NSA had discovered that analysts were querying and storing the metadata in continued contravention of the FISC-ordered minimization procedures designed to safeguard the data. Furthermore, some NSA analysts had accessed the data without authorization.

On May 8, 2009, the Department of Justice notified Judge Walton of the compliance incident via letter to the court. The DOJ described remedial steps, including steps to prevent access to the metadata and incorrect storage in repositories.

The May 2009 letter to Judge Walton is the only publicly disclosed document on this docket as of February 2014. The issue of noncompliance with minimization procedures also affected the following case, BR 09-06 NS-DC-0013.

The order in this matter was succeeded by BR 09-06, NS-DC-0013 in this Clearinghouse.

Elizabeth Homan - 02/21/2014


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