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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. The Director's press release is available here.

Under the program, the NSA had collected records from large telecommunication companies about, allegedly, virtually all domestic telephone calls. These records, termed "telephony metadata," included the phone numbers placed and received; the date, time and duration of calls; some location identifiers; and calling card numbers. The records, however, did 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, and the court approved it on May 24, 2006. Section 215 orders must be reviewed and reapproved by the FISC every 90 days; the order approving the program was reapproved dozens of times by the FISC. For more information on the program, 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. (That case involved an order reauthorizing the collection of telephone metadata. See BR 13-109, NS-DC-0017 in this Clearinghouse, for more information.) 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." ProPublica's motion also rooted its argument in the First Amendment, saying that a "brisk evolution" in FISC caselaw toward disclosure of opinions was moving it more in line with traditional Article III courts, which allow disclosure in most instances. As a result, the caselaw ProPublica was seeking should be disclosed, per this argument. In addition, ProPublica mentioned a procedural fairness argument under the First Amendment, saying that public disclosure would make future FISA opinions more fair as readers of publicized opinions would know how to argue before the court.

The government argued that the redacted opinions referenced in the August 29, 2013 opinion should not be disclosed because they 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 granted 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. They noted that the news media plays an important role in preventing government misconduct through open access to court records under the First Amendment, and that if these documents were still sealed, the news media would have issues accessing them and, potentially, holding government accountable for excessive surveillance. The amici added that disclosure would improve faith in government and that decisions on surveillance were fairly made, too.

Between December 2013 and September 2020, no new documents have been added to this docket. It appears that the matter was continued in dockets Misc. 13-02 NS-DC-0020 in this Clearinghouse and Misc. 13-08 NS-DC-0026 in this Clearinghouse. However, Judge Boasberg released an order on September 15, 2020 dismissing Misc. 13-08 and several cases raising similar issues for want of jurisdiction. For more information about that decision, see here.

ProPublica may still appeal the decision to the Foreign Intelligence Surveillance Court of Review, but as of September 24, 2020, it has not done so.

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


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
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) United States
Plaintiff Description Plaintiff is ProPublica, Inc., which describes itself as an independent, non-profit newsroom that produces investigative journalism in the public interest.
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filed 11/12/2013
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, FISCR docket 20-1] (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)
Court Docket(s)
No docket sheet currently in the collection
General Documents
FISC
11/12/2013
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
Source: Office of the Director of National Intelligence
FISC
11/13/2013
Briefing Order
NS-DC-0027-0002.pdf | Detail
Source: Office of the Director of National Intelligence
FISC
11/26/2013
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
Source: Office of the Director of National Intelligence
FISC
11/26/2013
Brief of Amici Curiae
NS-DC-0027-0004.pdf | Detail
Source: Office of the Director of National Intelligence
FISC
12/11/2013
U.S. Opposition to Propublica Motion
NS-DC-0027-0006.pdf | Detail
Source: Office of the Director of National Intelligence
FISC
12/23/2013
Propublica Reply Brief to U.S. Opposition
NS-DC-0027-0007.pdf | Detail
Source: Office of the Director of National Intelligence
FISC
09/15/2020
Opinion and Order (2020 WL 5637412)
NS-DC-0027-0008.pdf | WESTLAW | External Link | Detail
Source: Foreign Intelligence Surveillance Court
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Judges Boasberg, James Emanuel (FISC, D.D.C.) show/hide docs
NS-DC-0027-0008
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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