FISC authorizations of the NSA telephony metadata program before the Snowden revelations

The initial authorization in 2006

On September 10, 2013, the Director of National Intelligence (“DNI”) released the FISC’s Order authorizing the telephony metadata program, in which the government was authorized to collect “all call-detail records or ‘telephony metadata’” from a [redacted] carrier. Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], Docket Number: BR 06-05 (FISC May 24, 2006). Without providing any explanation, the Order found that as required under Section 215 of the Patriot Act, 50 U.S.C. Section 1861, “[t]here are reasonable grounds to believe that the tangible things sought are relevant to authorized investigations … being conducted by the FBI … to protect against international terrorism.” The Order did, however, impose restrictions on access to and use of the records, including that “access to the archived data shall occur only when NSA has identified a known telephone number for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable, articulable suspicion that the telephone number is associated with [redacted].” Acknowledging that “the data collected under this Order will necessarily be broad,” the FISC required that “the use of that information … be strictly tailored to identifying terrorist communications and shall occur solely according to the … minimization procedures designed to protect U.S. person information.”

The Order further specified that the metadata could be kept online for up to five years, but restricted access to the archived data to “authorized analysts,” whom the NSA’s Office of General Counsel (OGC) was to brief on the procedures for searches, including the circumstances under which queries of the database were permitted. The NSA was further required to construct a software interface with automatic logging capability, which the OGC was to monitor to ensure that only authorized analysts had access to the data.

The Opinion holding that the Stored Communications Act does not apply

Also released by the DNI on September 10, 2013 was an Opinion from December 12, 2008 in which the FISC responded to “the first application in which the government has identified the provisions of 18 U.S.C. Sections 2702 and 2703 as potentially relevant to whether such orders [for the production of bulk telephony metadata] could properly be issued under 50 U.S.C. Section 1861.Supplemental Opinion (BR 08-13 Dec. 12, 2008) at 1. FISC Judge Reggie B. Walton held that Section 215 of the Patriot Act, 50 U.S.C. Section 1861 was properly interpreted to allow the FISC to authorize the government to compel telecommunications providers to provide telephony metadata even though, if read literally, 18 U.S.C. Sections 2702 and 2703 of the Stored Communications Act set forth the exclusive means for the government to obtain non-content information about subscribers from telecommunications providers.

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