Case: In re application of the Federal Bureau of Investigation for an order requiring production of tangible things [redacted information] FISA Docket BR 09-15

09-00015 | Foreign Intelligence Surveillance Court

Filed Date: 2009

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Case Summary

CHECK WESTLAW FOR ORDER 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 rele…

CHECK WESTLAW FOR ORDER

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.)

In 2009, FISC Judge Reggie B. Walton presided over the applications for the orders continuing the Section 215 program. Because of incidents where the NSA had failed to comply with the FISC's minimization procedures for disseminating metadata (described in BR 09-09 and BR 09-13, Judge Walton was concerned about NSA compliance. As a result, on September 25, 2009, Judge Walton ordered representatives of the NSA and the National Security Division of the Department of Justice to appear for a hearing, held September 28, 2009, in order to inform the FISC more fully of the scope and circumstances of the incidents, and to allow the FISC to assess whether the FISC's order should be modified or rescinded and whether other remedial steps should be imposed.

In light of the hearing, on October 30, 2009, Judge Walton issued this matter's primary order, continuing the Section 215 program until late December 15, 2009. Judge Walton permitted NSA analysts who were authorized to query the metadata to share the results among themselves and other NSA personnel who had received appropriate training and access permissions. Judge Walton also permitted the government to query the metadata for historical purposes by using a telephone identifier that was not currently associated with one of the targeted foreign powers, but that was for a period of time in the past. Because those queries did not satisfy the "reasonable articulable suspicion" standard, Judge Walton was concerned about the likelihood that the queries could reveal communications of United States persons who were not subjects of investigation. Therefore, Judge Walton reiterated the limits on the dissemination of that metadata and the reporting requirement. The reports had to describe how the NSA conducted the queries and minimized any information obtained therefrom.

One additional document has been declassified, an order and opinion from November 5, 2009, by Judge Walton. In this supplemental order and opinion, Judge Walton found that the NSA reports to the FISC, as required by the October 30 primary order, were not sufficiently detailed to allay the Court's concern about the likelihood that the NSA queries could reveal communications of United States persons who were not subjects of investigation. Therefore, the Court ordered more rigorous reporting about how the NSA conducted queries of the metadata. 2009 WL 9150915.

The November 5 order referenced several incidents where the NSA failed to comply with the minimization procedures and the reporting requirement related to FISA applications BR 08-13, BR 09-01, BR 09-06, BR 09-09, and BR 09-13. (See BR 09-13.)

For the next application, see BR 09-19. However, the primary order for BR 09-19 remains classified, so the next available primary order for comparison purposes is BR 10-10.

Summary Authors

Elizabeth Homan (4/14/2014)

Jessica Kincaid (7/21/2014)

People


Judge(s)

Walton, Reggie B. (District of Columbia)

Judge(s)

Walton, Reggie B. (District of Columbia)

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Documents in the Clearinghouse

Document

09-00015

Supplemental Opinion and Order

Nov. 5, 2009

Nov. 5, 2009

Order/Opinion

2009 WL 2009

09-00015

Primary Order

Nov. 30, 2009

Nov. 30, 2009

Order/Opinion

2009 WL 2009

Docket

Last updated March 13, 2024, 3:05 a.m.

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Act -- Telephony Metadata

Foreign Intelligence Surveillance Court

Key Dates

Filing Date: 2009

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiff is the Federal Bureau of Investigation, acting on behalf of the National Security Agency.

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Case Details

Causes of Action:

FISA Title V order (PATRIOT Act § 215, business records or other tangible things), 50 U.S.C. §§ 1861-1862

Constitutional Clause(s):

Unreasonable search and seizure

Available Documents:

None of the above

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Order Duration: 2009 - 2009

Content of Injunction:

Reporting

Recordkeeping

Auditing

Monitoring

Warrant/order for search or seizure

Issues

General:

Confidentiality

Failure to train

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues