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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