University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [redacted] NS-DC-0101
Docket / Court BR 15-99 ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Telephony Metadata
Foreign Intelligence Surveillance Court
Case Summary
Following the September 11, 2001 terrorist attacks, the National Security Agency (NSA) began 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 ... read more >
Following the September 11, 2001 terrorist attacks, the National Security Agency (NSA) began 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 reauthorized 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, however, 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 that "shall take effect . . . 180 days after the enactment" of the USA FREEDOM Act. On June 29, 2015, in FISC Docket No. BR 15-75, FISC Judge Michael W. Mosman held that the USA FREEDOM Act allowed the government to continue collecting telephony metadata during this interim 180-day period. See
Judge Mosman went on to conclude that the minimization procedures limited the use of the metadata to "verifying the completeness and accuracy of call detail records" under the new metadata production mechanism provided for under the USA FREEDOM Act. Judge Mosman noted that the minimization procedures provided that the NSA would stop this limited usage on February 29, 2016.

Judge Mosman also authorized, however, the retention of the metadata as potential evidence in civil litigation, as required by orders issued by a federal district court in the Northern District of California. Judge Mosman held that the government was permitted to retain the metadata as evidence as long as needed, but he noted that the government was “under a continuing obligation to notify [the FISC] of any additional material developments in the district court litigation.” Finally, Judge Mosman concluded that once the government was no longer required to preserve this metadata as evidence, it should be promptly destroyed.

John He - 06/04/2017


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Issues and Causes of Action
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Issues
Content of Injunction
Recordkeeping
Warrant/order for search or seizure
General
Confidentiality
Record-keeping
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Special Case Type
Warrant or subpoena application
Causes of Action FISA Title V order (PATRIOT Act § 215, business records or other tangible things), 50 U.S.C. §§ 1861-1862
Defendant(s) United States
Plaintiff Description The Federal Bureau of Investigation and the National Security Agency.
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Litigation
Case Ongoing No
Docket(s)
15-99 (FISC)
NS-DC-0101-9000.pdf | Detail
Date: 08/28/2015
Source: Foreign Intelligence Surveillance Court
General Documents
Primary Order (FISC)
NS-DC-0101-0001.pdf | External Link | Detail
Date: 08/27/2015
Source: Foreign Intelligence Surveillance Court
Order Appointing an Amicus Curiae (FISC)
NS-DC-0101-0008.pdf | External Link | Detail
Date: 09/17/2015
Source: Foreign Intelligence Surveillance Court
Briefing Order (FISC)
NS-DC-0101-0007.pdf | External Link | Detail
Date: 10/07/2015
Source: Foreign Intelligence Surveillance Court
Memorandum of Law by Amicus Curiae Regarding Government's August 27, 2015, Application to Retain and Use Certain Telephony Metadata After November 28, 2015
NS-DC-0101-0005.pdf | External Link | Detail
Date: 10/29/2015
Source: Foreign Intelligence Surveillance Court
Response of the United States to the Memorandum of Law by Amicus Curiae
NS-DC-0101-0006.pdf | External Link | Detail
Date: 11/06/2015
Source: Foreign Intelligence Surveillance Court
Reply Memorandum of Amicus Curiae to the United States Response to October 29, 2015 Memorandum of Law
NS-DC-0101-0004.pdf | External Link | Detail
Date: 11/09/2015
Source: Foreign Intelligence Surveillance Court
Opinion and Order (2015 WL 12696366) (FISC)
NS-DC-0101-0002.pdf | WESTLAW | External Link | Detail
Date: 11/24/2015
Source: Foreign Intelligence Surveillance Court
Report Describing the Government's Assessment Whether the End of Bulk Collection has Mooted Claims of Certain Plaintiffs
NS-DC-0101-0003.pdf | External Link | Detail
Date: 01/08/2016
Source: Foreign Intelligence Surveillance Court
Judges Mosman, Michael W. (FISC, D. Or.)
NS-DC-0101-0001 | NS-DC-0101-0002 | NS-DC-0101-0007 | NS-DC-0101-0008
Plaintiff's Lawyers Burton, Preston (District of Columbia)
NS-DC-0101-0004 | NS-DC-0101-0005
Defendant's Lawyers Anzaldi, Matthew A. (District of Columbia)
NS-DC-0101-0003 | NS-DC-0101-0006
Carlin, John P. (District of Columbia)
NS-DC-0101-0006
Evans, Stuart J. (District of Columbia)
NS-DC-0101-0003 | NS-DC-0101-0006
Gilligan, James J (District of Columbia)
NS-DC-0101-0003

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