University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name In re Motion of ProPublica, Inc. for the Release of Court Records [FISC Docket Misc. 13-09] NS-DC-0027
Docket / Court Misc. 13-09 ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Telephony Metadata
Foreign Intelligence Surveillance Court
Case Summary
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 ... read more >
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, 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 November 12, 2013, ProPublica, represented by the Electronic Frontier Foundation, filed a motion in the FISC for release of court records, including opinions that were referenced in, but redacted from, an August 29, 2013 opinion in FISA docket BR 13-109. (See BR 13-109, NS-DC-0017 in this Clearinghouse.) ProPublica argued that the First Amendment compelled release of the judicial decisions and that FISC Court Rule 62 granted the FISC discretion to publish its own orders, opinions, and decisions. ProPublica sought this information to ascertain "FISC's ultimate authority for the bulk collection of records."

The government argued that the redacted opinions referenced in the August 29, 2013 opinion should be dismissed because it had already been subjected to a classification review and thus there was no basis for FISC to order a new classification review.

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.

Since December 2013, no new documents have been added to this docket. It appears the matter was continued in dockets Misc. 13-02 NS-DC-0020 and Misc. 13-08 NS-DC-0026.

Elizabeth Homan - 05/23/2014
Edward Cullen - 11/09/2018
Cedar Hobbs - 03/24/2020


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Issues and Causes of Action
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Issues
General
Confidentiality
Courts
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Causes of Action 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 Plaintiff is ProPublica, Inc., which describes itself as an independent, non-profit newsroom that produces investigative journalism in the public interest. Plaintiff is represented by the Electronic Frontier Foundation.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 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-DC-0026 : In re Opinions & Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act [FISA Docket Misc. 13-08] (FISC)
NS-DC-0017 : In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], FISA Docket BR 13-109 (FISC)
Docket(s)
No docket sheet currently in the collection
General Documents
Motion for the Release of Court Records, Declaration of Richard Tofel, Certification of Bar Membership and Security Clearance Status
NS-DC-0027-0001.pdf | Detail
Date: 11/12/2013
Source: Office of the Director of National Intelligence
Briefing Order (FISC)
NS-DC-0027-0002.pdf | Detail
Date: 11/13/2013
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-0027-0003.pdf | Detail
Date: 11/26/2013
Source: Office of the Director of National Intelligence
Brief of Amici Curiae
NS-DC-0027-0004.pdf | Detail
Date: 11/26/2013
Source: Office of the Director of National Intelligence
U.S. Opposition to Propublica Motion
NS-DC-0027-0006.pdf | Detail
Date: 12/11/2013
Source: Office of the Director of National Intelligence
Propublica Reply Brief to U.S. Opposition
NS-DC-0027-0007.pdf | Detail
Date: 12/23/2013
Source: Office of the Director of National Intelligence
show all people docs
Judges Walton, Reggie B. (FISC, D.D.C.) show/hide docs
NS-DC-0027-0002
Plaintiff's Lawyers Crocker, Andrew (California) show/hide docs
NS-DC-0027-0007
Greene, David Allen (California) show/hide docs
NS-DC-0027-0001 | NS-DC-0027-0007
Defendant's Lawyers Carlin, John P. (District of Columbia) show/hide docs
NS-DC-0027-0006
Guahar, Tashina (District of Columbia) show/hide docs
NS-DC-0027-0006
Patterson, Nicholas J. (District of Columbia) show/hide docs
NS-DC-0027-0006
Wiegmann, J. Bradford (District of Columbia) show/hide docs
NS-DC-0027-0006
Other Lawyers Brown, Bruce D. (Virginia) show/hide docs
NS-DC-0027-0003 | NS-DC-0027-0004
Osterreicher, Mickey H. (New York) show/hide docs
NS-DC-0027-0004

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