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.)
This particular Section 215 order was granted by FISC Judge Claire V. Eagan on July 18, 2013, authorizing the Section 215 program until October 11, 2013. The previous order was BR 13-80, NS-DC-0056
in this Clearinghouse. 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 the same as the previous order with one exception. The new requirements no longer required review by the Court, the NSA's Office of General Counsel, and the Department of Justice of all proposed automated query processes. Instead, the new requirements only require review of new or modified automated query processes.
On August 29, 2013, Judge Eagan released a memorandum opinion considering whether the Fourth Amendment to the U.S. Constitution imposed any impediment to the government's collection. The FISC found that U.S. Supreme court precedent under Smith v. Maryland, 442 US. 735 (1979) compelled the conclusion that there is no Fourth Amendment prohibition on the collection. Furthermore, the Court considered the terms and legislative history of Section 215 to determine that the proposed collection was lawful and that the FISC should issue orders authorizing collection.
The order in this matter was succeeded by BR 13-158, NS-DC-0018
in this Clearinghouse.Elizabeth Homan - 04/14/2014
Jessica Kincaid - 08/04/2014