FISA

The Latest 215 Collection Renewal

By Benjamin Wittes
Monday, March 2, 2015, 6:43 AM

It happened Friday. Here's the White House Statement:

In January 2014, President Obama directed an end to the Section 215 bulk telephony metadata program as it then existed, and called for the establishment of a mechanism that would preserve the program’s essential capabilities without the government holding the bulk data. In March 2014, based on a recommendation from the Director of National Intelligence and the Attorney General, the President proposed that the data should remain at the telephone companies rather than with the government, with a new legal mechanism that would allow the government to obtain data from these companies pursuant to individual court orders. This proposal, which would require new legislation, would preserve the essential features of the bulk telephony metadata program, while addressing legitimate concerns about the potential for abuse of this information.

To date, the Congress has failed to pass legislation to implement these important reforms. The USA FREEDOM Act, which was supported by the Administration and a broad coalition of industry and privacy and civil liberties advocates, would have implemented the President’s reform proposal. A version of the bill introduced by Representative Sensenbrenner passed the House of Representatives with broad bipartisan support, and a subsequent version of the bill negotiated by Senator Patrick Leahy fell two votes shy of advancing in the Senate.

Although the Congress has not yet taken action to implement the President’s proposal, the Administration has worked with the Foreign Intelligence Surveillance Court (FISC) to implement key reforms to the bulk telephony metadata program.  Now, absent an emergency, the metadata can only be queried after a judicial finding that there is a reasonable, articulable suspicion that the requested selection term is associated with an international terrorist organization approved by the Court. In addition, query results must be limited to metadata within two “hops” of the selection term instead of three. While the Administration waits for the Congress to act, it has continued to operate the program with these important modifications in place.

Section 215 and two other important Foreign Intelligence Surveillance Act authorities will expire on June 1, 2015. Yesterday, the FISC approved an extension of the modified telephony metadata program. Congress has a limited window before the June 1 sunset to enact legislation that would implement the President’s proposed path forward for the telephony metadata program, while preserving key intelligence authorities. The Administration continues to stand ready to work with the Congress on such legislation and would welcome the opportunity to do so.

Here's the joint Justice Department and DNI statement:

Early last year in a speech at the Department of Justice, President Obama announced a transition that would end the Section 215 bulk telephony metadata program as it previously existed, and that the government would establish a mechanism that preserves the capabilities we need without the government holding this bulk data.

As a first step in that transition, the President directed the Attorney General to work with the Foreign Intelligence Surveillance Court to ensure that, absent a true emergency, telephony metadata can only be queried after a judicial finding that there is a reasonable, articulable suspicion that the selection term is associated with an approved international terrorist organization. The President also directed that the query results must be limited to metadata within two hops of the selection term instead of three.

These two changes have been in effect since February 2014.

In addition, the President also directed the Intelligence Community and the Attorney General to develop options for a new approach to match the capabilities and fill gaps that the Section 215 program was designed to address without the government holding this metadata. After carefully considering the available options, the President announced in March that the best path forward is that the government should not hold this data in bulk, and that the data should remain at the telephone companies with a legal mechanism in place that would allow the government to obtain data pursuant to individual orders from the FISC approving the use of specific numbers for such queries.

The President also noted that legislation would be required to implement this option, and he has called on Congress to enact this important change.

As the White House said, the Administration welcomes the opportunity to work with the new Congress to implement the changes the President has called for.  Given that legislation has not yet been enacted, and given the importance of maintaining the capabilities of the telephony metadata program, the government has sought a reauthorization of the existing program, as modified by the changes the President directed in January.

Consistent with prior declassification decisions and in light of the significant and continuing public interest in the telephony metadata collection program, DNI James R. Clapper declassified the fact that the government filed an application with the FISC to reauthorize the existing program until June 1, 2015, and that the FISC issued an order approving the government’s application.   The Government sought renewal of this authority to and including June 1, 2015 in order to align the expiration date of the requested order for this program with the June 1, 2015 sunset of Section 215 of the PATRIOT Act.

The Administration is undertaking a declassification review of this most recent court order, and when complete, the ODNI will post the document to its website and icontherecord.tumblr.com.