Case: In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], BR 10-10

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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, apparently do not include the parties' names, addresses or financial information or the call's content. Once collected, the records are stored for several years and may be queried, used, and disseminated only in accordance with "minimization rules" proposed by the government and approved by the Foreign Intelligence Surveillance Court ("FISC"). The most basic aspect of the minimization rules has been that the metadata records can be queried when there is a reasonable suspicion, based on specific and articulated facts, that the identifier that will be used as the basis for the query is associated with specified foreign terrorist organizations.

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 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.)

This particular Section 215 order was granted by FISC Judge Reggie B. Walton on February 26, 2010. This docket comes after a year of intense scrutiny into the NSA's compliance with court-ordered minimization procedures. See BR 09-15.

It is currently not possible to compare the minimization procedures in this order to those in the previous order under docket BR 09-19 because docket BR 09-19 remains classified. (Many of the primary orders issued in 2009 remain classified.)

The primary order issued on September 3, 2009 is the last available order to use for a comparison. See BR 09-13. The February 26, 2010 primary order, in this matter, differs from the September 3, 2009 order in two ways:

First, this order newly permitted the NSA to share information derived from the metadata program to legislative branch personnel in order to enable them to fulfill their oversight functions.

In addition, like the September 3 and October 30 primary orders, this February 26 primary order mandated that any application to renew the Section 215 program authorization must include a report describing how the NSA has conducted the queries and minimized any information obtained therefrom. The February 26 order differed from the previous order because it also required the NSA to file a report within forty-five days describing the queries made since the end of the reporting period of the last report filed pursuant to docket BR 09-19.

The authorization expired on May 21, 2010, at 5:00 p.m.

The order in this matter was succeeded by BR 10-17.