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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, allegedly do not include the parties' names, addresses or financial information or the call's content.
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 Foreign Intelligence Surveillance Court ("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 June 12, 2013, the American Civil Liberties Union (ACLU) and the Media Freedom and Information Access Clinic (MFIAC) filed a motion in the FISC for release of court records including opinions that interpret Section 215. The plaintiffs argued that the First Amendment compels release of the judicial decisions and FISC Court Rule 62 grants the FISC discretion to publish its own orders, opinions, and decisions.
Judge Dennis Saylor IV ruled on September 13, 2013 that the ACLU had standing to bring the case, but he dismissed the claim of MFIAC for lack of standing. The ACLU had moved for release of several opinions interpreting Section 215 that were already the subject of FOIA litigation in the United States District Court for the Southern District of New York. Judge Saylor ordered the government to report which Section 215 Opinions were not subject to the FOIA litigation and to complete a declassification review for each opinion. After the review, the author of each opinion may decide whether to propose publication under Rule 62.
(Proceedings were briefly stayed in October 2013 due to a lack of Congressional budget appropriations for the U.S. government.)
The government identified one opinion of the Court, issued on February 19, 2013 in docket BR 13-25, that interpreted Section 215 and was not already the subject of FOIA litigation or previous public release. On November 18, 2013, the government filed its two-page declassification review that requested the opinion be withheld in full and a public version could not be provided. On November 20, Judge Saylor ordered the government to submit a detailed explanation of its conclusion that the Opinion is classified in full.
In December 2013, FISC Judge Reggie Walton permitted the motion of the Reporters Committee for Freedom of the Press and a group of 25 media organizations to file a brief as amici curiae.
On December 20, 2013, the government filed a submission to the Court stating that the February 19 opinion pertained to an ongoing law enforcement investigation, but it did not object if the Court determined to publish non-classified portions of the opinion. The ACLU filed its response to the government's submission on February 19, 2014.
The Court published the February 19 opinion on August 27, 2014. (See BR 13-25, NS-DC-0060
in this Clearinghouse.) Elizabeth Homan - 05/23/2014
Jessica Kincaid - 06/09/2014
Brian Tengel - 02/15/2015