University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name In re Opinions & Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act [FISA Docket Misc. 13-08, FISCR docket 20-1] NS-DC-0026
Docket / Court Misc. 13-08 ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Internet Metadata
Foreign Intelligence Surveillance Act -- Telephony Metadata
Foreign Intelligence Surveillance Court
Attorney Organization ACLU Chapters (any)
ACLU National (all projects)
Case Summary
For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

On January 17, 2014, following the disclosure of various dragnet National Security Agency (NSA) ... read more >
For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

On January 17, 2014, following the disclosure of various dragnet National Security Agency (NSA) surveillance programs by Edward Snowden, the Director of National Intelligence authorized the declassification and public release of numerous orders approving the NSA's 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. A press release is available here.

Under the program, the NSA collected records from large telecommunication companies; virtually all domestic telephone calls. These records, termed "telephone metadata," include the phone numbers placed and received; the date, time and duration of calls; some location identifiers; and calling card numbers. The records did not, however, 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 was reviewed and reapproved by the FISC essentially every 90 days. It was approved dozens of times by many different federal judges, on the FISC, following its initial approval on May 24, 2006 by the FISC. (See BR 06-05, NS-DC-0009 in this Clearinghouse.)

(The government encountered substantial backlash as a result of the disclosure of the Bulk Telephony Metadata Program. While this case was ongoing, on May 27, 2015, a federal circuit court in ACLU v. Clapper (NS-NY-0003 in this Clearinghouse) held that Section 215 did not authorize this program. Then, on June 2, 2015, Congress passed the USA FREEDOM Act of 2015, which prohibited the bulk collection of telephony metadata under Section 215. Instead, the telephone companies now retain this telephony metadata, and to obtain any such metadata the government is required to submit applications for a specific target based on a "specific selection term." This application must be approved by the FISC.)

On November 7, 2013, the American Civil Liberties Union (ACLU) and the Media Freedom and Information Access of Yale Law School (collectively, “movants”) filed a motion in the FISC for release of court records, including opinions that addressed the legal basis for the bulk collection of data under FISA. The movants argued that the First Amendment compelled release of these judicial decisions and that FISC Rule 62 gave the FISC discretion to publish its own orders, opinions, and decisions. The ACLU had previously moved for the FISC to release opinions that interpreted Section 215 of FISA, under docket Misc. 13-02. (See Misc. 13-02, NS-DC-0020 in this Clearinghouse.) The litigation under Misc. 13-02 was still ongoing at the time the ACLU filed this case, but Misc. 13-02 was limited to the disclosure of opinions that addressed only Section 215 of FISA, not all bulk collection programs.

The government opposed the motion, arguing that all the relevant opinions had already been released and that the FISC should not order the government to conduct a separate classification. The government also argued that the movants lacked standing and that the FISC did not typically involve itself in the declassification process. On December 5, 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 in support of the movants.

The case remained pending until 2017. Before then, the movants filed several notices of supplemental authority, informing the FISC regarding relevant new court decisions and statutes. Specifically, on October 30, 2014, the movants filed a notice based on Dhiab v. Obama (NS-DC-0020 in this Clearinghouse.)

On February 21, 2017, the movants filed a new motion to alter or amend the court's January 25, 2017 opinion. The movants claimed that the court's opinion contradicted previous FISC rulings and that the grounds for the court's decision was not briefed by any party. On March 22, 2017, pursuant to FISC Rule 49, the court issued an order for en banc—that is, with all the judges of the FISC—reconsideration of whether the movants had standing.

Because Judge Collyer's analysis of the standing issue conflicted with the analysis of another FISC judge in a similar case, see In re Orders of This Court Interpreting Section 215 of the Patriot Act, No. Misc. 13–02, 2013 WL 5460064 (FISC Sept. 13, 2013) (Saylor, J.), NS-DC-0020, the FISC judges without a motion decided to granted en banc reconsideration of Judge Collyer's order “on the ground that it is necessary to secure or maintain uniformity of the court's decisions.” In re Bulk Collection, 2017 WL 1500037, at *1 (FISC Mar. 22, 2017) (citing FISC Rule of Procedure 49). Subsequently, in an opinion issued on November 9, 2017, the en banc court held, by a six-to-five vote, that the movants had established the requisite injury in fact to raise their First Amendment claim. In re Bulk Collection, 2017 WL 5983865 (FISC Nov. 9, 2017) (en banc).

Judge Boasberg, writing for the majority, reasoned that Judge Collyer's initial opinion required too specific of a showing to establish standing. All that was required to show standing was a colorable claim that such a right might exist, even if the claim ultimately failed on the merits. There was no reasonable basis, Judge Boasberg explained, for holding otherwise in the FISA context.

On January 5, 2018, the FISC judges certified the following question for review: “Whether Movants have adequately established Article III standing to assert their claim of a qualified First Amendment right of public access to FISC judicial opinions.” In re Bulk Collection, 2018 WL 396244, at *2 (FISC Jan. 5, 2018). On January 9, 2018, the FISCR accepted the certification. It appointed an amicus curiae, Prof. Laura Donohue.

On March 16, 2018, the FISC affirmed, agreeing with the majority of the FISC judges that the movants had standing to seek disclosure of the classified portions of the opinions at issue. As the FISC en banc majority explained, standing is a prerequisite to a party's filing suit. It entails a threshold inquiry, one that is separate from the merits of the underlying claim—and one that requires far less substantiation. Movants need not show that they are ultimately entitled to access the materials in question. Instead, they need only show that their claim is not immaterial nor wholly insubstantial and frivolous. Regardless of whether the movants are entitled to relief on their claim, they have standing to present that question to the court. In re Certification of Questions of Law to Foreign Intelligence Surveillance Court of Review, No. FISCR 18-01, 2018 WL 2709456, at *1 (Foreign Intel. Surv. Ct. Mar. 16, 2018)

On May 1, 2018, Judge Collyer ordered that parties file briefs setting forth the basis for the assertion of FISC subject matter jurisdiction over their claim. Briefs were exchanged on August 1, 2018.

On February 11, 2020, the FISC released their opinion. The court clarified that the movants were seeking redacted, nonpublic material in the opinions released addressing the bulk collection of data. The court found that it had subject matter jurisdiction over the Motion for the Release of Court Records but the First Amendment did not confer a qualified right of public access to the material sought nor was there any reason for the court to exercise any discretion it might have had in granting the relief requested. Thus, the Motion for the Release of Court Records was denied and the motion dismissed. 2020 WL 897659.

The movants filed a petition for review or in the alternative a writ of mandamus, functionally an appeal, for the February 11 decision on March 11, 2020. Appellate review of FISC decisions is done by the Foreign Intelligence Surveillance Court of Review (FISCR), and it functions like an appellate court, with a panel of judges reviewing the FISC's decisions. Once the case moved to the FISCR, the case received a new docket number, 20-01.

Shortly after the petition for review was filed, the FISCR entered a show cause order on March 13 asking the movants to discuss if the FISCR had jurisdiction to rule on this petition. The movants were given a deadline of March 26 to file a brief and the government was given a deadline of April 6 if it wanted to respond to the brief. Due to the COVID-19 pandemic, the movants filed an unopposed motion on March 16 to extend the deadlines to file their initial brief to April 27. The FICSR granted this motion in part, setting the new deadline for the movant's show cause brief to April 9 in a March 17 order, but moved the deadline back to April 17 in an April 10 order.

In keeping with the revised schedule, the movants submitted their show cause order on April 17. They urged the FISCR to take the case, highlighting that the FISCR has "jurisdiction to review the denial of any application made under this chapter." They argued that the access petition initially filed was an "application" to the FISC because it sought relief from the FISC using 50 U.S.C. § 1803(b) of the FISA statute. The movants added that the FISCR has ancillary jurisdiction over the matter because as an Article III court, it can rule on motions to access its own records, which should include petitions for records access that arrive from the FISC on appellate review. Finally, the movants argued that they had jurisdiction for a writ of mandamus under the All Writs Act, since the FISA statute does not preclude mandamus review and invites the FISCR to "take such actions . . . as are reasonably necessary to administer [its] responsibilities under the charter."

The government filed its response brief arguing against granting jurisdiction on schedule on April 22. It argued that the initial petition was not an "application" under FISA because the claim is based in the First Amendment, not the FISA statute itself. It added that, because the court lacked jurisdiction from the FISA statute, it was unable to exercise ancillary or All Writs jurisdiction, because these arguments all depend on the court having jurisdiction from another source.

The FISCR issued an opinion on April 24, 2020, denying jurisdiction to the petition. The panel, composed of Jose Cabranes, Richard C. Tallman, and David B. Sentelle, focused on the definition of "application" in other parts of the FISA statute, which include FISA production or nondisclosure orders, directives to an electronic communications provider, and orders approving targeting. Since the petition didn't fall in any of these categories, they held it was not an application for the purposes of the statute. They added that the movants were not the target of a FISA order, so they lacked standing to pursue the claim. They declined to exercise ancillary jurisdiction, noting that the Supreme Court warned that such jurisdiction should be cautiously invoked, and highlighting that the lack of an explicit grant of jurisdiction in this area gave them pause. Finally, they agreed with the government's interpretation of the All Writs Act, stating that it needed a grant of jurisdiction elsewhere in the FISA statute to be exercised. 957 F.3d 1344.

This decision dismissed the petition for review or writ of mandamus, and effectively terminated the case in the FISC and FISCR. The movants could appeal the decision to the Supreme Court, but as of June 25, 2020, they have not yet done so.

Elizabeth Homan - 05/23/2014
Ian Williams - 12/01/2016
John He - 01/07/2018
Edward Cullen - 02/14/2019
Cedar Hobbs - 02/16/2020
Ellen Aldin - 06/30/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
Defendant-type
Jurisdiction-wide
General
Confidentiality
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
Non-profit NON-religious organization
Causes of Action FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812
FISA Title III Warrant (Physical Search), 50 U.S.C. §§ 1821-1829
FISA Title IV order (pen register/trap-and-trace), 50 U.S.C. §§ 1841-1846
FISA Title V order (PATRIOT Act § 215, business records or other tangible things), 50 U.S.C. §§ 1861-1862
Defendant(s) Department of Justice
Plaintiff Description Plaintiffs are the American Civil Liberties Union and the Media Freedom and Information Access Clinic at Yale Law School.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National (all projects)
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filed 11/07/2013
Case Ongoing Yes
Case Listing NS-DC-0020 : In re Orders Issued by This Court Interpreting Section 215 of the PATRIOT Act [FISA Docket Misc. 13-02] (FISC)
NS-NY-0008 : ACLU v. FBI (S.D.N.Y.)
NS-DC-0027 : In re Motion of ProPublica, Inc. for the Release of Court Records [FISC Docket Misc. 13-09] (FISC)
NS-DC-0117 : In re Opinions and Orders of this Court Containing Novel or Significant Interpretations of Law (FISC)
NS-DC-0126 : FISA Court Matters relating to disclosure of Carter Page surveillance records: Four FISC cases [FISC Misc. 18-01, Misc. 18-02, Misc. 18-03, and Misc. 19-01] (FISC)
Docket(s)
Misc. 13-08 (FISC)
NS-DC-0026-9000.pdf | Detail
Date: 05/01/2017
Source: Foreign Intelligence Surveillance Court
General Documents
Motion for the Release of Court Records
NS-DC-0026-0001.pdf | Detail
Date: 11/07/2013
Source: Office of the Director of National Intelligence
Briefing Order (FISC)
NS-DC-0026-0002.pdf | Detail
Date: 11/08/2013
Source: Office of the Director of National Intelligence
Motion of the Reporters Committee for Freedom of the Press and 25 Media Organizations for Leave to File Brief as Amici Curiae
NS-DC-0026-0003.pdf | Detail
Date: 11/26/2013
Source: Office of the Director of National Intelligence
Brief of Amici Curiae
NS-DC-0026-0004.pdf | Detail
Date: 11/26/2013
Source: Office of the Director of National Intelligence
The United States' Opposition to the Motion for The Release of Court Records
NS-DC-0026-0006.pdf | Detail
Date: 12/06/2013
Source: Office of the Director of National Intelligence
Movants' Reply In Support of Their Motion
NS-DC-0026-0007.pdf | Detail
Date: 12/20/2013
Source: Office of the Director of National Intelligence
Notice of Supplemental Authority
NS-DC-0026-0008.pdf | External Link | Detail
Date: 10/30/2014
Source: Foreign Intelligence Surveillance Court
Notice of Supplemental Authority
NS-DC-0026-0009.pdf | External Link | Detail
Date: 12/04/2015
Source: Foreign Intelligence Surveillance Court
Opinion (2017 WL 427591) (FISC)
NS-DC-0026-0017.pdf | WESTLAW | External Link | Detail
Date: 01/25/2017
Source: Foreign Intelligence Surveillance Court
Movants' Motion to Alter or Amend the Judgment & For Joint Briefing With Case No. Misc. 16-01
NS-DC-0026-0016.pdf | External Link | Detail
Date: 02/21/2017
Source: Foreign Intelligence Surveillance Court
Order (2017 WL 1500037) (FISC)
NS-DC-0026-0015.pdf | WESTLAW | External Link | Detail
Date: 03/22/2017
Source: Foreign Intelligence Surveillance Court
Movants' En Banc Opening Brief in Support of Their Motion for the Release of Court Records
NS-DC-0026-0012.pdf | External Link | Detail
Date: 04/17/2017
Source: Foreign Intelligence Surveillance Court
Supplemental Certification of Bar Membership and Security Clearance Status
NS-DC-0026-0013.pdf | External Link | Detail
Date: 04/17/2017
Source: Foreign Intelligence Surveillance Court
The United States' Legal Brief to the En Banc Court in Response to the Court's Order of March 22, 2017
NS-DC-0026-0014.pdf | External Link | Detail
Date: 04/17/2017
Source: Foreign Intelligence Surveillance Court
The United States' Response to Movant's En Banc Opening Brief
NS-DC-0026-0010.pdf | Detail
Date: 05/01/2017
Source: Foreign Intelligence Surveillance Court
Movants' En Banc Reply Brief in Support of Their Motion for the Release of Court Records
NS-DC-0026-0011.pdf | External Link | Detail
Date: 05/01/2017
Source: Foreign Intelligence Surveillance Court
Opinion (2017 WL 5983865) (FISC)
NS-DC-0026-0018.pdf | WESTLAW | External Link | Detail
Date: 11/09/2017
Source: Foreign Intelligence Surveillance Court
Certification of Questions of Law to the Foreign Intelligence Surveillance Court of Review (2018 WL 396244) (FISC)
NS-DC-0026-0029.pdf | WESTLAW | Detail
Date: 01/05/2018
Source: Foreign Intelligence Surveillance Court
In Re: Certification of Questions of Law to the Foreign Intelligence Surveillance court of Review (Opinion) (2018 WL 2709456) (FISC)
NS-DC-0026-0030.pdf | WESTLAW | Detail
Date: 03/16/2018
Source: Foreign Intelligence Surveillance Court
Appointment of Amicus Curiae and Briefing Order (D.D.C.)
NS-DC-0026-0021.pdf | Detail
Date: 05/01/2018
Source: Foreign Intelligence Surveillance Court
Brief of Amicus Curiae
NS-DC-0026-0022.pdf | Detail
Date: 06/13/2018
Source: Foreign Intelligence Surveillance Court
Movants' Reply Brief In Response to the Court's Order of May 1, 2018
NS-DC-0026-0019.pdf | Detail
Date: 08/02/2018
Source: Foreign Intelligence Surveillance Court
Reply Brief of Amicus Curiae
NS-DC-0026-0020.pdf | Detail
Date: 08/02/2018
Source: Foreign Intelligence Surveillance Court
Opinion (2018 WL 396244) (FISC)
NS-DC-0026-0024.pdf | WESTLAW | Detail
Date: 02/11/2020
Source: Foreign Intelligence Surveillance Court
Order (2020 WL 897659) (FISC)
NS-DC-0026-0025.pdf | WESTLAW | Detail
Date: 02/11/2020
Source: Foreign Intelligence Surveillance Court
Order (FISC)
NS-DC-0026-0026.pdf | Detail
Date: 02/11/2020
Source: Foreign Intelligence Surveillance Court
show all people docs
Judges Collyer, Rosemary M. (FISC, D.D.C.) show/hide docs
NS-DC-0026-0015 | NS-DC-0026-0017 | NS-DC-0026-0021 | NS-DC-0026-0024 | NS-DC-0026-0025 | NS-DC-0026-0026 | NS-DC-0026-0029
Walton, Reggie B. (FISC, D.D.C.) show/hide docs
NS-DC-0026-0002
Plaintiff's Lawyers Abdo, Alex (New York) show/hide docs
NS-DC-0026-0001 | NS-DC-0026-0007 | NS-DC-0026-0008 | NS-DC-0026-0009 | NS-DC-0026-0011 | NS-DC-0026-0012
Bloch-Wehba, Hannah (Connecticut) show/hide docs
NS-DC-0026-0011 | NS-DC-0026-0012 | NS-DC-0026-0013 | NS-DC-0026-0016
Jaffer, Jameel (New York) show/hide docs
NS-DC-0026-0001 | NS-DC-0026-0007 | NS-DC-0026-0011 | NS-DC-0026-0012
Kaufman, Brett Max (New York) show/hide docs
NS-DC-0026-0001 | NS-DC-0026-0007 | NS-DC-0026-0011 | NS-DC-0026-0012 | NS-DC-0026-0013 | NS-DC-0026-0016
Langford, John (Connecticut) show/hide docs
NS-DC-0026-0011 | NS-DC-0026-0012 | NS-DC-0026-0013 | NS-DC-0026-0016
Manes, Jonathan (New York) show/hide docs
NS-DC-0026-0007 | NS-DC-0026-0008 | NS-DC-0026-0009
Michelman, Scott (District of Columbia) show/hide docs
NS-DC-0026-0011 | NS-DC-0026-0012 | NS-DC-0026-0013 | NS-DC-0026-0016
Schulz, David A (New York) show/hide docs
NS-DC-0026-0001 | NS-DC-0026-0007 | NS-DC-0026-0011 | NS-DC-0026-0012 | NS-DC-0026-0013 | NS-DC-0026-0016
Spitzer, Arthur (District of Columbia) show/hide docs
NS-DC-0026-0001 | NS-DC-0026-0007 | NS-DC-0026-0008 | NS-DC-0026-0009 | NS-DC-0026-0011 | NS-DC-0026-0012 | NS-DC-0026-0013 | NS-DC-0026-0016
Toomey, Patrick Christopher (New York) show/hide docs
NS-DC-0026-0001 | NS-DC-0026-0007 | NS-DC-0026-0011 | NS-DC-0026-0012 | NS-DC-0026-0013 | NS-DC-0026-0016 | NS-DC-0026-0019
Defendant's Lawyers Boente, Dana J. (District of Columbia) show/hide docs
NS-DC-0026-0010
Carlin, John P. (District of Columbia) show/hide docs
NS-DC-0026-0006
Evans, Stuart J. (District of Columbia) show/hide docs
NS-DC-0026-0010 | NS-DC-0026-0014
Guahar, Tashina (District of Columbia) show/hide docs
NS-DC-0026-0006
McCord, Mary B. (District of Columbia) show/hide docs
NS-DC-0026-0014
Patterson, Nicholas J. (District of Columbia) show/hide docs
NS-DC-0026-0006
Smith, Jeffrey Michael (District of Columbia) show/hide docs
NS-DC-0026-0010 | NS-DC-0026-0014
Wiegmann, J. Bradford (District of Columbia) show/hide docs
NS-DC-0026-0006
Other Lawyers Brown, Bruce D. (Virginia) show/hide docs
NS-DC-0026-0003 | NS-DC-0026-0004
Donohue, Laura (District of Columbia) show/hide docs
NS-DC-0026-0020 | NS-DC-0026-0022

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