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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, NS-DC-0009
in this Clearinghouse.)
This matter is a continuation of the Section 215 program from December 16, 2009 to until February 26, 2010. As usual, this order includes "minimization" procedures that impose a variety of limits on the NSA's use of the telephony metadata. The minimization procedures enumerated in this order are the same as the previous order. On December 30, 2009, Judge Walton issued a "secondary order" directing production by a telecom provider, succeeding similar production orders from 2009 signed by the Court.
On January 7, 2010, the federal government moved to unseal the following documents for the limited purpose of discussions with the unnamed telecommunications provider: (1) Opinion and Order, docket no. PR/TT 04-88 (entered July 14, 2004); (2) Response to Orders for Additional Briefing (docket numbers redacted); (3) Opinion (docket no. redacted); (4) Application, including all exhibits (filed May 23, 2006), and Orders (entered May 24, 2006), docket no. BR 06-05; and (5) Application, including all exhibits (filed December 11, 2008), Orders (entered December 12, 2008), and Supplemental Opinion (entered December 12, 2008), docket no. BR 08-13. On January 8, 2010, Judge Bates granted the motion to unseal for the purposes of the discussions between the parties.
On January 8, 2010, the parties filed a joint motion to enlarge the time period to file a petition challenging the production order. According to this motion, on or about July 9, 2009, the unnamed telecommunications provider had raised certain legal issues regarding the production orders. The parties had been engaged in ongoing discussion about those legal issues and expected those discussion to conclude on or before February 1, 2010. As a result, the parties moved to enlarge the time period to file from January 19, 2010, to February 1, 2010. On January 8, 2010, FISC Judge John D. Bates granted the parties' joint motion, enlarging the time period to February 1, 2010.
On January 11, 2010, the government moved for an amended secondary order. The government asked the Court to add the following findings to the December 16, 2009, order: (1) that there are reasonable grounds to believe that the tangible things sought are relevant to authorized investigations being conducted by the FBI; (2) the tangible things sought could be obtained with a subpoena duces tecum by a U.S. court; and (3) the application includes an enumeration of the minimization procedures the government proposes to follow with regard to the tangible things sought.
No other documents have been declassified, so no other information is available. The Clearinghouse coverage continues for matter BR 10-10, NS-DC-0041
.Jessica Kincaid - 07/21/2014