FISA: 215 Collection

ODNI and DOJ Release Last Section 215 Collection Order

By Cody M. Poplin
Monday, August 31, 2015, 12:59 PM

On Friday, the Foreign Intelligence Surveillance Court authorized the extension of the NSA's collection of bulk telephony metadata under Section 215 of the USA Patriot Act until November 29th, 2015—the latter date marking the end of a transition to new, narrower surveillance rules imposed by the USA Freedom Act.

The primary order requires the government to notify the Court of "any material developments in civil litigation" pertaining to the metadata program and notes that it will consider at a later date the NSA's request to access telephony metadata after November 29, in order to "verify the completeness and accuracy" of data produced under the new collection mechanism in the USA Freedom Act. The order came only hours after the D.C. Circuit vacated and remanded the district court's order in the Klayman metadata suit, ruling that the plantiffs had failed to satisify preliminary injunction standards.  

The Office of the Director of National Intelligence and the Department of Justice released a statement noting the renewal of telephony metadata collection authorities under Section 215 and reaffirming that "analytic access to the historical metadata collected under Section 215 (any data collected before November 29, 2015) will also cease on November 29, 2015." The NSA says it intends to continue to use the data for an additional three months in order to "verify the records produced under the new targeted production mechanism," but will preserve the data until pending civil litigation is resolved. According to the ODNI and DOJ, the telephony metadata will "not be used or accessed for any other purpose" and "as soon as possible," the NSA will destroy the data. 

You can read the full statement below: 

On August 27, 2015, the Foreign Intelligence Surveillance Court issued a Primary Order approving the government’s application to renew the Section 215 bulk telephony program. The USA FREEDOM Act of 2015 banned bulk collection under Section 215 of the USA PATRIOT Act, but provided a new mechanism to allow the government to obtain data held by the providers. To ensure an orderly transition to this new mechanism, the USA FREEDOM Act provided for a 180-day transition period during which the existing NSA bulk telephony metadata program may continue.  

After considering an application filed shortly after the passage of the USA FREEDOM Act, on June 29, 2015, the Court held that the continuation of the NSA’s bulk telephony metadata program during the transition period remains consistent with both the statute and the Fourth Amendment. The authority under the Court’s June 29 order was set to expire today, August 28, 2015.  

The Government recently filed an application to renew the authority to collect bulk telephony metadata. On August 27, 2015, the Court authorized the continued collection of telephony metadata through November 28, 2015, the end of the 180-day transition period contemplated by the USA FREEDOM Act. As of November 29, 2015, both the 180-day transition period and the Court’s authorization will have expired and the bulk collection of telephony metadata pursuant to Section 215 will cease.  

As previously stated in a July 27, 2015 Joint Statement, NSA has determined that analytic access to the historical metadata collected under Section 215 (any data collected before November 29, 2015) will also cease on November 29, 2015. However, solely for data integrity purposes to verify the records produced under the new targeted production mechanism authorized by the USA FREEDOM Act, NSA, subject to court approval, plans to allow technical personnel to continue to have access to the historical metadata for an additional three months.  

Separately, NSA remains under a continuing legal obligation to preserve its bulk 215 telephony metadata collection until civil litigation regarding the program is resolved, or the relevant courts relieve NSA of such obligations. The telephony metadata preserved solely because of preservation obligations in pending civil litigation will not be used or accessed for any other purpose, and, as soon as possible, NSA will destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations.

As background, early last year in a speech at the Department of Justice, President Obama announced that the Intelligence Community would end the Section 215 bulk telephony metadata program as it previously existed. The President 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 2014 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, however, that legislation would be required to implement this new approach and the administration worked closely with Congress to enact the President’s proposal. On June 2, 2015, Congress passed and the President signed the USA FREEDOM Act of 2015, which reauthorized several important national security authorities; banned bulk collection under Section 215 of the USA PATRIOT Act, under the pen register and trap and trace provisions found in Title IV of FISA, and pursuant to National Security Letters; and adopted the new legal mechanism proposed by the President.  

As in past primary orders in effect since February 2014, and consistent with the President’s direction, the Court’s new Primary Order requires that during the transition period, 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. In addition, the query results must be limited to metadata within two hops of the selection term instead of three.

You can read the FISC order here or below: