The U.S. Foreign Intelligence Surveillance Court (“FISA Court”) unsealed an order on April 19, 2016, in which it allowed the National Security Agency (“NSA”) to compel specific telephone records related to an ongoing terrorism investigation from telecommunications providers.  The order, originally issued by the FISA Court on December 31, 2015, is the first of its kind since the November passage of the USA Freedom Act, which substantially curtailed the government’s ability to collect domestic telephone metadata.  The FISA Court, however, redacted much of the court order, including the names of the private telecom companies affected by the ruling.

Formed in the 1970s, the FISA Court reviews requests from the government for surveillance warrants related to national security issues.  The previous surveillance law permitted the NSA to collect bulk telephone metadata (as opposed to call content), including records of the duration, origin, and destination of calls made and received by American citizens and residents.  Under the new law, the USA Freedom Act, the government can no longer indiscriminately collect domestic bulk metadata; rather, it must request specific, targeted information from telecom companies after obtaining authorization from the FISA Court. 

According to the December 31 order, posted on a website operated by the Office of the Director of National Intelligence, the proposed NSA surveillance program met USA Freedom Act requirements.  Described only as “the ongoing daily production of detailed call records relating to an authorized international terrorism investigation,” the FISA Court opinion provided little information about the nature of the NSA’s program.  The FISA Court, however, concluded that the government’s application detailed “specific selection terms” that “specifically identifie[d] an individual, account or personal device” as required by the statute.  The FISA Court also deemed sufficient the government’s statement of facts, which the court determined effectively demonstrated the relevancy of initially targeted telephone numbers in relation to an authorized international terrorism investigation.  Notably, the court determined that, under a plain reading of the statute, the relevancy showing was not required for the government to examine numbers called from the initially targeted phone, thus permitting the government to collect and review additional records.  Finally, the FISA Court approved the government’s proposed “minimization procedures” to govern the retention and dissemination of collected call records.

Despite its substantial redactions, the order granting the NSA permission to collect targeted telephone records provides insight into the implementation of the new USA Freedom Act.      

Reporter, Bailey J. Langner, San Francisco, +1 415 318 1214, blangner@kslaw.com.