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Latest Batch of Declassified 215 Orders from the FISC

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Wednesday, February 12, 2014 at 7:55 PM

Have at it: a trio of freshly declassified documents from the Foreign Intelligence Surveillance Court (“FISC”). The three concern telecommunications companies’ production of telephony metadata to the NSA, in bulk, pursuant to orders issued by the FISC under Section 215 of the Patriot Act.

We learned last week that the court—and to my eye quite unsurprisingly—had granted the Department of Justice’s request to tweak minimization procedures applicable to the 215 program, among other things by having the FISC pre-approve the NSA’s determinations of “reasonable and articulable suspicion” (“RAS”).  That’s the standard required, in order for the NSA to query the trove of metadata it has received from various companies subject to 215 orders.  And the decision to seek advance FISC sign-off before querying was, of course, one of several policy shifts announced in the President’s speech last month on intelligence matters.

And now we have the materials underlying that procedural adjustment: a primary order authorizing continued collection, dated the first week of January; the government’s motion to bolster its minimization procedures, consistent with the President’s directive; and an order, dated last week and signed by Judge Reggie Walton, which formally blessed the government’s proposed changes (RAS pre-approval, and also a “two hop” limit for metadata queries).

Regarding pre-approval, the FISC acknowledged the apparent enlargement of its oversight function. Still, it reasoned that Section 215 did not expressly prohibit a pre-approval regime, on the hand; and that, on the other, the court had “previously approved query requests,” though only as a sanction for the NSA’s non-compliance with minimization rules.  Importantly, the court also seemed to condition its acceptance of the pre-approval mechanism on the FISC’s workload not surging too much as a consequence:

Provided that the number selectors used to query the metadata remains relatively close to the present level, the Court is satisfied that it will be able to underatke the additional work that will be required, at least until the expiration of the January 3 Primary Order.

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