Following the September 11, 2001 terrorist attacks, the National Security Agency (NSA) began the the bulk collection of "telephony metadata" from all available domestic phone calls. This metadata did not include the call's content or party names, but did include phone numbers placed and received; the date, time and duration of calls; some location identifiers; and calling card numbers. In 2006, the government sought and received approval of the program from the U.S. Foreign Intelligence Surveillance Court (FISC) under Section 501 of the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended by Section 215 of the USA PATRIOT Act. Since 2006, the telephony metadata collection program has been re-authorized many times, most recently by FISC Judge James E. Boasberg in In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [redacted]
, FISA Docket BR 15-24 (NS-DC-0070
in this Clearinghouse).
On June 2, 2015, Congress passed the USA FREEDOM Act of 2015, which prohibited the bulk collection of telephony metadata under Section 215, and instead established a new mechanism for targeted production of call detail records which "shall take effect . . . 180 days after the enactment" of the USA FREEDOM Act. On June 8, 2015, the government filed this application in the FISC to obtain continued authorization for collection of telephony metadata for this 180-day transition period between the expiration of authorization under FISA Docket BR 15-24 and the new procedures authorized by the USA FREEDOM Act. Prior to the government's application, FreedomWorks Foundation, a non-profit political advocacy group, filed a motion opposing the re-authorization of the program. See FISA Docket Misc. 15-01 (NS-DC-0085
in this Clearinghouse).
On June 29, 2015, FISC Judge Michael W. Mosman approved the government's application in FISA Docket BR 15-75 for continuation of authority to collect telephony metadata during the 180-day transition period. Judge Mosman first noted that he was appointing FreedomWorks Foundation as amicus curiae
as authorized under Section 102(i)(2)(A) of the USA FREEDOM Act, and would utilize their brief as an amicus brief under this application.
However, Judge Mosman determined that FreedomWorks Foundation's arguments lacked merit. Judge Mosman relied heavily on Judge Saylor's reasoning in FISA Docket BR 15-77 and 15-78 (NS-DC-0087
in this Clearinghouse), holding that the effect of the USA FREEDOM Act was to continue Section 501 as amended by Section 215 of the PATRIOT Act. Judge Mosman also determined it was Congress' intent to re-authorize the bulk collection of telephony metadata under Section 501 during this period.
On November 27, 2015, the Office of the Director of National Intelligence (ODNI) issued a statement
confirming that the 180-day transition period would cease on November 29. However, ODNI also confirmed that the government had requested "limited access to historical Section 215 metadata until February 29, 2016, limited to technical personnel and solely for the purpose of verifying that the new targeted production mechanism authorized by the USA FREEDOM Act is working as intended." This request was approved by the FISC in FISA Docket BR 15-99 (NS-DC-0101
in this Clearinghouse).John He - 04/03/2016