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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 November 20, 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 FISC Court Rule 62 grants the FISC discretion to publish its own orders, opinions, and decisions.

Release of the redacted BR 13-109 opinion interpreting Section 215 of FISA occurred four days after a motion by the American Civil Liberties Union (ACLU) requesting that the Court release FISC opinions interpreting Section 215. (See Misc. 13-02, NS-DC-0020 in this Clearinghouse.)

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.

As of May 2014, there has been no other activity in this matter that has been publicly disclosed.

Elizabeth Homan - 05/23/2014


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