Case: FISA Docket PR-TT ---- (Judge Unknown) (September 2006)

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On November 18, 2013, the Director of National Intelligence authorized the declassification and public release of numerous orders approving the National Security Agency's ("NSA") so-called "Bulk Internet Metadata Program" under Section 402 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), commonly referred to as the Pen Register and Trap and Trace (PR/TT) provision, or Section 214 of the USA PATRIOT Act. On August 11, 2014, the Director of National Intelligence authorized another declassification and public release of additional documents regarding the now-discontinued NSA Bulk Electronic Communications Metadata Program pursuant to Section 402 of FISA.

Under the program, the NSA collected records from large telecommunication companies about electronic communications metadata. These records included the "to," "from," "cc," and "bcc" lines of an email and the email's time and date. The program did not authorize the collection of content of any electronic communications. Once collected, the records were stored for several years and were authorized to 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 was that the metadata records were to be queried only when there was a reasonable suspicion, based on specific and articulated facts, that the identifier used as the basis for the query was associated with specified foreign terrorist organizations.

NSA collection of email metadata began in 2001, as part of the "President's Surveillance Program." Apparently the government took the position that internet metadata could be collected lawfully without court order because the NSA did not actually "acquire" communications until particular items were selected for review, after they showed up via query. But after Department of Justice lawyers raised objections to this theory, and accordingly to the program's legality, the Attorney General sought judicial ratification of the internet metadata program under the FISA pen/trap provisions, and the FISA Court blessed it in an order dated July 14, 2004. Except for a brief period in 2009, the FISC reauthorized the program approximately every 90 days until the Obama administration discontinued it in 2011. As of April 2014, only three FISC opinions and four FISC orders related to the internet metadata collections program have been released. All the opinions and orders have been significantly redacted. They nonetheless explain a good deal about how the program worked.

The volume of material collected was "enormous" from its beginning, as the first of these opinions explains. At the start, the government aimed "to build a meta data archive that will be, in relative terms, richly populated with [redacted] related communications." As the Court reported the government's initial intentions, "[s]ome proportion of these communications-less than half, but still a huge number in absolute terms-can be expected to be communications [redacted] who bear no relation to [redacted]." In 2009 or 2010, however, the government "in comparison with prior dockets, [sought] authority to acquire a much larger volume of metadata at a greatly expanded range of facilities." The growth in volume and scope included extending collection beyond the "streams of data with a relatively high concentration of Foreign Power communications" that had previously been the focus. Until the program ended, in 2011, the pen/trap bulk collection began to reach "electronic communications, the vast majority of which, viewed individually, are not relevant to the counterterrorism purpose of the collection, and many of which involve United States persons."

The FISC initially approved the internet metadata program in 2004 in an opinion by Judge Colleen Kollar-Kotelly under docket PR-TT [redacted].

In 2006, the government applied to the Southern District of Texas for a court order authorizing installation and use of a pen register and trap/trace device, access to customer records, and cell phone tracking. The court initially granted an order in part but denied access to dialed digits as well as the limited cell site authority. The government appealed this decision, but on July 19, 2006, Magistrate Judge Stephen Smith of the Southern District of Texas affirmed the decision to deny the government authority to collect post-cut-through dialed digits (any numbers dialed from a telephone after the call is initially setup or "cut-through") and limited cell site information (specifically, location of the antenna tower and sector to which the cell phone sends its signal) in In re the Application of United States, 441 F. Supp. 2d 816 (S.D. Tex. 2006), USA v. Pen Register.

Subsequently, the FISA Court therefore ordered the government to address the ongoing validity of the internet metadata program, in light of the Texas district court's ruling. The more specific subject of the order has been redacted. Although there have been multiple rulings by the Southern District of Texas on cell site information (USA v. Pen Register and In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority), we know the FISA Court is referencing the opinion in USA v. Pen Register because the government's subsequent responsive brief quotes the opinion in USA v. Pen Register (specifically, the phrase "fundamental premise).

On September 25, 2006, the government submitted its responsive memorandum of law entitled "Memorandum of Law in Response to the Court's [redacted] Order Regarding [redacted] under the Foreign Intelligence Surveillance Act." Although the text of the government's brief is heavily redacted, the government argued that the FISC should decline to follow the district court's ruling. The government cited the USA PATRIOT and Improvement Reauthorization Act of 2005, which was passed in March 2006. The amendment enhanced the government's ability to obtain certain routing and transmission information pursuant to pen register surveillance under FISA. In addition, the government argued that collection of Internet metadata continued to be allowed under the FISA amendments because the "pen register" definition is not limited to telephone communication, but to all manner of modern electronic communication--the "technology reasonably available to it" as described by FISA.

On November 1, 2006, the government submitted a "Report Regarding the Maintenance and Use [redacted] in FBI Databases." This document is also heavily redacted. The report includes descriptions of minimization procedures used to prevent "affirmative use" of pen register information and the processes for transferring pen register information into FBI databases. The report also proposes additional minimization procedures and procedures for notifying the Court.

These are the only two documents that have been publicly released for this matter. There is no information regarding the primary order authorized by the FISC.

There were evidently many renewals of the PR/TT internet metadata order, but the next matter with documents that have been publicly released is from February 2009, FISA Docket PR-TT ---- (Walton, J.) (February 2009). This matter includes a FISC primary order issued by Judge Reggie Walton.