On May 14, 2014, the Office of the Director of National Intelligence and the Department of Justice released redacted FISC documents showing that on or about July 2009, a telecommunications provider had raised questions with the government about the legality of the Section 215 order to produce bulk telephony metadata with which it was complying. On January 8, 2010, the government and the provider, whose name was redacted from the released documents but revealed by The Washington Post to be Sprint, filed a joint motion for an extension of time for Sprint to file an petition, under 50 U.S.C. Sec. 1861(f)(2)(A)(i), challenging the Section 215 Order of December 16, 2009 with which it was currently complying. The parties sought the extension of time in the hope of resolving their discussions of the legal issues without litigation.
On January 8, 2010, the government also filed a motion asking the FISC to unseal and allow documents to be disclosed to Sprint for the purpose of discussing the Section 215 issue. The documents the government listed in the motion were: (1) the Opinion and Order entered on July 14, 2004, in docket number PR/IT 04-88; (2) the Response to an Order for Additional Briefing in a case whose docket number and date are redacted; (3) an Opinion in a case whose docket number(s) and date are also redacted; (4) the Application, including all Exhibits, and the Orders filed in docket number BR 06-05 on May 24, 2006; (5) the Application, including all Exhibits, filed on December 11, 2008, and the Orders and Supplemental Opinion entered on December 12, 2008 in docket number 08-13.
After the FISC granted the government’s motion to unseal and disclose and the joint motion for an extension of time, the government successfully moved, on January 11, 2010, for an Amended Secondary Order requiring Sprint to produce bulk telephony metadata under Section 215, but incorporating legal findings on three specific issues.
To understand the interchange between Sprint and the government, it is crucial to learn what information was disclosed to Sprint as a result of the government’s motion to unseal and disclose. The redactions in the version of the motion released on May 14, 2014 make it impossible to discern what documents were disclosed under Items 2 and 3. In the aftermath of the Snowden revelations, however, some of the documents disclosed to Sprint under Items 1, 4 and 5 were disclosed to the public by the DNI.
Specifically, The Washington Post identified Item 1, the Opinion and Order issued in docket number PR/IT 04-88 in 2004, as the Opinion and Order by Judge Colleen Kollar-Kotelly that approved the initiation of the bulk electronic communications metadata program. This was released to the public by the DNI on November 18, 2013.
On September 13, 2013, the DNI released the FISC’s Order of May 24, 2006 in BR 06-05 authorizing the government’s collection of bulk telephony metadata and the Supplemental Opinion of December 12, 2008 in BR 08-13. These documents, as well as connected Applications, Exhibits and Orders were disclosed to Sprint under Items 4 and 5 of the government’s motion. Importantly, the Supplemental Opinion of 2008 held that Section 215 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. This may have contributed to Sprint’s decision not to formally challenge the telephony metadata program before the FISC.