Case: In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], FISA Docket BR 13-158

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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.

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 Mary A. McLaughlin on October 11, 2013, authorizing the Section 215 program until January 3, 2014. The terms of the primary order are identical to those set out previously by Judge Eagan in docket BR 13-109.

Judge McLaughlin wrote a supplementary memorandum describing her independent review of the issues, including the inapplicability of the Fourth Amendment to the production and the statutory interpretation of Section 215. Judge McLaughlin agreed with and adopted Judge Eagan's analysis in her August 29 opinion. (See BR 13-109.) Judge McLaughlin found that U.S. Supreme Court precedent under United States v. Jones, 132 S. Ct. 945 (2012) did not point to a different result under the Fourth Amendment. Furthermore, Judge Eagan's statutory analysis of Section 215 was reinforced by Congress's re-enactment of the statute in 2011 after receiving information about the government's and the FISC's interpretation.

After Judge McLaughlin issued the October 11 order, the Center for National Security Studies filed a motion to establish a public briefing schedule, to submit an amicus curiae brief, and to suggest a hearing before the full FISC. On December 18, 2013, Judge McLaughlin granted the Center's motion to file an amicus brief on why FISA Section 501 did not authorize the bulk collection of telephony metadata records, but she denied all other requests. 2013 WL 12335411. The Center's amicus brief, along with the FISC's order accepting the filing, can be found in Misc. 14-01.

The reauthorization order in this matter was succeeded by BR 14-01.