PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

Report on the Telephone Records Program

Conducted under Section 215

of the USA PATRIOT Act and on the 

Operations of the Foreign Intelligence Surveillance Court

JANUARY 23, 2014
i

Privacy and Civil Liberties Oversight Board

David Medine, Chairman

Rachel Brand

Elisebeth Collins Cook

James Dempsey

Patricia Wald
ii

PRI V ACY & CI VIL LI BE RTIES OVE RSIG H T BO ARD

Report on the Telephone Records Program Conducted under Section 215 of the USA 

PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court

Part 1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Part 2 EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Part 3 DESCRIPTION OF THE NSA SECTION 215 PROGRAM . . . . . . . . . . . . . . . . . . . . . . . . . 21

Part 4 HISTORY OF THE NSA SECTION 215 PROGRAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Part 5 STATUTORY ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Part 6 CONSTITUTIONAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

Part 7 POLICY ANALYSIS AND RECOMMENDATIONS REGARDING THE NSA

SECTION 215 PROGRAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

Part 8 DISCUSSION AND RECOMMENDATIONS REGARDING THE FOREIGN 

INTELLIGENCE SURVEILLANCE COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

Part 9 DISCUSSION AND RECOMMENDATIONS REGARDING TRANSPARENCY . . . . . . 190

Part 10 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

ANNEXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

A. Separate Statement by Board Member Rachel Brand . . . . . . . . . . . . . . . . . . . . . 208

B. Separate Statement by Board Member Elisebeth Collins Cook . . . . . . . . . . . . 214

C. July 9, 2013 Workshop Agenda and Link to Workshop Transcript . . . . . . . . 219
iii

D. November 4, 2013 Hearing Agenda and Link to Hearing Transcript . . . . . . . 222

E. Request for Public Comments on Board Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

F. Index to Public Comments on www.regulations.gov . . . . . . . . . . . . . . . . . . . . . . 227
1

Part 1:

INTRODUCTION

On June 5, 2013, the British newspaper The Guardian published the first of a series 

of articles based on unauthorized disclosures of classified documents by Edward Snowden, 

a contractor for the National Security Agency (“NSA”).1 The article described an NSA 

program to collect millions of telephone records, including records about purely domestic 

calls. Over the course of the next several days, there were additional articles regarding this 

program as well as another NSA program referred to in leaked documents as “PRISM.” 

These disclosures caused a great deal of concern both over the extent to which they 

damaged national security and over the nature and scope of the surveillance programs they 

purported to reveal. Subsequently, authorized disclosures from the government confirmed 

both programs. Under one, the NSA collects telephone call records or metadata — but not 

the content of phone conversations — covering the calls of most Americans on an ongoing 

basis, subject to renewed approvals by the Foreign Intelligence Surveillance Court (“FISC”

or “FISA court”). This program was approved by the FISC pursuant to Section 215 of the 

USA PATRIOT Act (“Patriot Act”). Under the second program, the government collects the 

content of electronic communications, including phone calls and emails, where the targets 

are reasonably believed to be non-U.S. persons located outside the United States.2 Section 

702 of the FISA Amendments Act is the basis for this program.3 

Immediately following the press revelations, the public and many policymakers 

began asking questions about the scope and nature of these NSA programs. Central among 

the issues raised was the degree to which the programs included appropriate safeguards 

for privacy and civil liberties. One week after the first news article appeared, a bipartisan 

group of thirteen U.S. Senators asked the recently reconstituted Privacy and Civil Liberties 

Oversight Board (“PCLOB”) to investigate the two NSA programs and to provide an 

unclassified report “so that the public and the Congress can have a long overdue debate” 

about the privacy issues raised.4 A July 11, 2013, letter from House Minority Leader Nancy 

Pelosi requested that the Board also consider the operations of the FISC, which approved 

 

1 See Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily, THE 

GUARDIAN (June 5, 2013).

2 Even when the target is a non-U.S. person, collections of communications involving U.S. persons may 

still occur, either where those individuals are in communication with non-U.S. persons or where they are 

mistakenly believed to be non-U.S. persons.

3 This is the program inaccurately referred to in early reports as the PRISM program. PRISM is 

actually the database in which such communications are compiled.

4 Letter from Senator Tom Udall et al. to the Privacy and Civil Liberties Oversight Board (June 12, 

2013), available at http://www.pclob.gov/.
2

the two programs. On June 21, 2013, the Board met with President Obama and his senior 

staff at the White House, and the President asked the Board to review “where our 

counterterrorism efforts and our values come into tension.”5

In response to the congressional and presidential requests, the Board immediately 

initiated a study of the 215 and 702 programs and the operation of the FISA court. This 

Report contains the results of the Board’s 215 program study as well as our analysis and 

recommendations regarding the FISC’s operation. 

I. Background

The PCLOB is an independent bipartisan agency within the executive branch 

established by the Implementing Recommendations of the 9/11 Commission Act of 2007.6 

The Board is comprised of four part-time members and a full-time chairman, all appointed 

by the President and confirmed by the Senate. The Board’s authorizing statute gives it two 

primary responsibilities: 

1) To analyze and review actions the executive branch takes to protect the Nation

from terrorism, ensuring that the need for such actions is balanced with the need 

to protect privacy and civil liberties; and 

2) To ensure that liberty concerns are appropriately considered in the 

development and implementation of laws, regulations, and policies related to 

efforts to protect the Nation against terrorism.7

This Report arises out of the Board’s responsibility to provide oversight by 

analyzing and reviewing executive branch actions, in this case the operation of the Section 

215 telephone records program.

The Board today is in its third iteration. In July 2004, the National Commission on 

Terrorist Attacks on the United States (known as the 9/11 Commission) recommended that 

“there should be a board within the executive branch to oversee adherence to the 

guidelines we recommend and the commitment the government makes to defend our civil 

 

5 See Letter from Democratic Leader Nancy Pelosi to Chairman David Medine (July 11, 2013), available 

at http://www.pclob.gov/; Remarks by the President in a Press Conference at the White House (Aug. 9, 

2013), available at http://www.whitehouse.gov/the-press-office/2013/08/09/remarks-president-pressconference.

6 Pub. L. No. 110-53, § 801(a), 121 Stat. 266, 352-58 (2007).

7 See Pub. L. No. 110-53, § 801(a) (codified at 42 U.S.C. § 2000ee).
3

liberties.”8 In August 2004, President George W. Bush created the President’s Board on 

Safeguarding Americans’ Civil Liberties by executive order.9 The President’s Board ceased 

to meet upon the enactment of the Intelligence Reform and Terrorism Prevention Act of 

2004, which created a Privacy and Civil Liberties Oversight Board within the Executive 

Office of the President.10

In 2007, the Implementing Recommendations of the 9/11 Commission Act 

reconstituted the Board in its current form as an independent agency within the executive 

branch.11 The Act requires that all five Board members be appointed by the President, by 

and with the advice and consent of the Senate, for staggered six-year terms. The Act further 

requires that the Board be bipartisan in composition. No more than three of the five 

members may be from the same political party, and before appointing members who are 

not from the President’s political party, the President must consult with the leadership of 

the opposing party. 

With the reconstitution of the Board, the 9/11 Commission Act terminated, effective 

January 30, 2008, the terms of the individuals then serving as Board members within the 

Executive Office of the President. From that time until August 2012, the Board did not 

function, as none of the positions on the Board were filled. Then, in August 2012, the 

Board’s current four part-time members were confirmed by the Senate, providing the 

reconstituted Board with its first confirmed members and a quorum to begin operations.12

 

8 THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE 

UNITED STATES, at 395 (2004). The 9/11 Commission was a bipartisan panel established to “make a full and 

complete accounting of the circumstances surrounding” the September 11, 2001, terrorist attacks, and to 

provide “recommendations for corrective measures that can be taken to prevent acts of terrorism.” 

Intelligence Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306, § 602(4), (5), 116 Stat. 2383, 2408 

(2002).

9 See Exec. Order No. 13353, 69 Fed. Reg. 53,585 (Aug. 27, 2004). The President’s Board was chaired 

by the Deputy Attorney General and consisted of twenty-two representatives from the Departments of State, 

Defense, Justice, Treasury, Health and Human Services, and Homeland Security; the Office of Management and 

Budget; and the Intelligence Community. During its tenure, the President’s Board met six times.

10 See Pub. L. No. 108-458, § 1061(b), 118 Stat. 3638, 3684 (2004). As chartered under IRTPA, the 

Board was comprised of two Board members appointed by the President, by and with the advice and consent 

of the Senate, and three additional Board members appointed by the President. Id. § 1061(e)(1).

11 See Pub. L. No. 110-53, § 801(a), 121 Stat. 266, 352-58 (2007).

12 The Board’s four part-time members were confirmed by the Senate on August 2, 2012, and were 

appointed by the President and sworn into office later that month for the following terms: 

 Rachel L. Brand, for a term ending January 29, 2017; 

 Elisebeth Collins Cook, for a term ending January 29, 2014. On January 6, 2014, Ms. Cook was 

nominated for a second term ending January 29, 2020. Under the Board’s authorizing statute, as a 

result of this nomination, Ms. Cook can continue to serve through the end of the Senate’s current 

session and, if confirmed before then, through January 29, 2020.

 James X. Dempsey, for a term ending January 29, 2016; and 
4

The Board’s chairman, its only full-time member, was confirmed on May 7, 2013, and 

sworn in on May 29, five days before news stories based upon the NSA leaks began to 

appear.

Since the PCLOB began operations as an independent agency in August 2012, it has 

released two semi-annual reports to Congress and the President summarizing the agency’s 

start up activities.13 This Report represents the Board’s first comprehensive study of a 

government program.

II. Study Methodology

In response to the congressional and presidential requests, the PCLOB undertook an 

in-depth study of the Section 215 and 702 programs as well as the operations of the FISA 

court.

14 This study included classified briefings with officials from the Office of the 

Director for National Intelligence (“ODNI”), NSA, Department of Justice, Federal Bureau of 

Investigation (“FBI”), and Central Intelligence Agency (“CIA”). Board members also met 

with White House staff, a former presiding judge of the FISA court, academics, privacy and 

civil liberties advocates, technology and communications companies, and trade 

associations. The Board also received a demonstration of the Section 215 program’s

operation and capabilities at the NSA. The Board has been provided access to classified 

opinions by the FISC, various inspector general reports, and additional classified 

documents relating to the operation and effectiveness of the programs. At every step of the 

way, the Board has received the full cooperation of the intelligence agencies. Board staff 

have conducted a detailed analysis of applicable statutory authorities, the First and Fourth 

Amendments to the Constitution, and privacy and civil liberties policy issues.

As part of its study, and consistent with our statutory mandate to operate publicly 

where possible, the Board held two public forums. The first was a day-long public 

workshop held in Washington, D.C., on July 9, 2013, comprised of three panels addressing 

 

 Patricia M. Wald, for a term ending January 29, 2013. On December 12, 2013, the Senate 

confirmed Ms. Wald for a second term ending January 29, 2019. 

The Board’s chairman and only full-time member, David Medine, was originally nominated by the President 

on December 15, 2011, and was re-nominated on January 22, 2013. The Senate confirmed Mr. Medine on 

May 7, 2013, and he was sworn in on May 29, 2013, for a term ending January 29, 2018.

13 See Privacy and Civil Liberties Oversight Board, Semi-Annual Report, September 2012 to March 2013 

(June 27, 2013); Privacy and Civil Liberties Oversight Board, Semi-Annual Report, March 2013 to September 

2013 (Nov. 3, 2013), available at http://www.pclob.gov/.

14 Prior to the confirmation of the chairman, the four part-time members had identified implementation 

of the FISA Amendments Act as a priority for oversight; in other words, the Section 702 Program already was 

familiar to the majority of the Board in June 2013.
5

different aspects of the Section 215 and 702 programs.15 The panelists provided input on 

the legal, constitutional, technology, and policy issues implicated by the two programs. The 

first panel addressed the legality of the programs, and included comments from a former 

FISC judge regarding the operation of that court. Because technological issues are central to 

the operations of both programs, the second panel was comprised of technology experts. 

The third panel included academics and members of the advocacy community; panelists 

were invited to provide views on the policy implications of the NSA programs and what 

changes, if any, would be appropriate. 

As the Board’s study of the NSA surveillance programs moved forward, the Board 

began to consider possible recommendations for program changes. At the same time, the 

Board wanted to try to identify any unanticipated consequences of reforms it was 

considering. Accordingly, on November 4, 2013, the Board held a public hearing in 

Washington, D.C.

16 The hearing began with a panel of current government officials who 

addressed the value of the programs and the potential impact of proposed changes. The 

second panel, designed to explore the operation of the FISA court, consisted of another 

former FISC judge, along with a former government official and a private attorney who 

both had appeared before the FISC. Finally, the Board heard from a diverse panel of experts 

on potential Section 215 and 702 reforms.

The Board provided its draft description of the operations of the FISA court (but not 

our recommendations) to court’s staff to ensure that this description accurately portrayed 

the court’s operations. The Board also provided draft portions of its analysis regarding the 

effectiveness of the Section 215 program (but not our conclusions and recommendations) 

to the U.S. Intelligence Community to ensure that our factual statements were correct and 

complete. While the Board’s Report was subject to classification review, none of the 

changes resulting from that process affected our analysis or recommendations. There was 

no outside review of the substance of the Board’s analysis and recommendations.

During the time the PCLOB has been conducting this study, members of Congress 

have introduced a variety of legislative proposals to address the Section 215 and 702 

programs, the government has engaged in several internal reviews of the programs, and 

several lawsuits have been filed challenging the programs’ legitimacy. To ensure that the 

PCLOB’s recommendations may be considered as part of this ongoing debate, the Board 

divided this study into two parts. The first part, this Report, covers the PCLOB’s analysis 

and recommendations regarding operation of the 215 program and the FISA court. The 

second part will be a subsequent unclassified report containing PCLOB’s analysis and 

recommendations concerning the 702 program.

 

15 See Annex C.

16 See Annex D.
6

In addition, proposals for modifications to the Section 215 program and the 

operation of the FISC were under active consideration by the White House while we were 

conducting our study. Pursuant to the Board’s statutory duty to advise the President and 

elements of the executive branch to ensure that privacy and civil liberties are appropriately 

considered in the development and implementation of legislation and policies and to 

provide advice on proposals to retain or enhance a particular power, the PCLOB briefed 

senior White House staff on the Board’s tentative conclusions on December 5, 2013. The 

PCLOB provided a near final draft of the Board’s conclusions and recommendations on 

Section 215 and the operations of the FISA court (Parts 5, 7 and 8 of this Report) to the 

White House on January 3, the transparency section (Part 9) on January 8, 2014, and 

additional statutory analysis on January 14, 2014 (Part 5). On January 8, the full Board met 

with the President, the Vice President and senior officials to present the Board’s 

conclusions and the views of individual Board members.

III. Report Organization

The body of this Report consists of seven sections, five of which address the Section 

215 telephone records program. After this introduction and the executive summary, Part 3 

describes in detail how the telephone records program works. To put the present-day 

operation of the program in context, Part 4 reviews its history, including its evolution from 

predecessor intelligence activities. An analysis of whether the telephone records program 

meets applicable statutory requirements follows in Part 5. Part 6 addresses the 

constitutional issues raised by the telephone records program under both the First and 

Fourth Amendments. The final section discussing the Section 215 program, Part 7,

examines the potential benefits of the program, its efficacy in achieving its purposes, the 

impact of the program on privacy and civil liberties, and the Board’s conclusions that 

reforms are needed.

After considering the 215 program, the Report addresses the operations of the 

Foreign Intelligence Surveillance Court. That section, Part 8, concludes by proposing an 

approach that, in appropriate cases, would allow the FISC judges to hear from a Special 

Advocate. Part 9, the final section of the Report, addresses the issue of transparency, which 

has been a priority of this Board since it began operations.17

 

17 See Privacy and Civil Liberties Oversight Board, Minutes of Open Meeting of March 5, 2013, at 6-7, 

available at http://www.pclob.gov/.
7

IV. What’s Next?

While this Report includes a number of detailed conclusions and recommendations, 

it does not purport to answer all questions. The Board welcomes the opportunity for 

further dialogue within the executive branch and with Congress about the issues raised in 

this Report and how best to implement the Board’s recommendations.

The Board’s next report will consider the Section 702 program, addressing whether, 

in the Board’s view, the program is consistent with statutory authority, complies with the 

Constitution, and strikes the appropriate balance between national security and privacy 

and civil liberties. That report will also be made available to the public.
8

Part 2:

EXECUTIVE SUMMARY

The statute creating the Privacy and Civil Liberties Oversight Board (“PCLOB” or 

“Board”) directs the Board to analyze and review actions taken by the executive branch to 

protect the nation from terrorism, “ensuring that the need for such actions is balanced with 

the need to protect privacy and civil liberties.”18 In pursuit of this mission, the PCLOB has 

conducted an in-depth analysis of the bulk telephone records program operated by the 

National Security Agency (“NSA”) under Section 215 of the USA PATRIOT Act (“Patriot 

Act”). The Board’s examination has also included a review of the operation of the Foreign 

Intelligence Surveillance Court (“FISC” or “FISA court”). This Executive Summary outlines 

the Board’s conclusions and recommendations. 

I. Overview of the Report

A. Background: Description and History of the Section 215 Program

The NSA’s telephone records program is operated under an order issued by the FISA 

court pursuant to Section 215 of the Patriot Act, an order that is renewed approximately 

every ninety days. The program is intended to enable the government to identify 

communications among known and unknown terrorism suspects, particularly those 

located inside the United States. When the NSA identifies communications that may be 

associated with terrorism, it issues intelligence reports to other federal agencies, such as 

the FBI, that work to prevent terrorist attacks. The FISC order authorizes the NSA to collect 

nearly all call detail records generated by certain telephone companies in the United States, 

and specifies detailed rules for the use and retention of these records. Call detail records 

typically include much of the information that appears on a customer’s telephone bill: the 

date and time of a call, its duration, and the participating telephone numbers. Such 

information is commonly referred to as a type of “metadata.” The records collected by the 

NSA under this program do not, however, include the content of any telephone 

conversation. 

After collecting these telephone records, the NSA stores them in a centralized 

database. Initially, NSA analysts are permitted to access the Section 215 calling records 

only through “queries” of the database. A query is a search for a specific number or other 

selection term within the database. Before any specific number is used as the search target 

or “seed” for a query, one of twenty-two designated NSA officials must first determine that 

 

18 42 U.S.C. § 2000ee(c)(1).
9

there is a reasonable, articulable suspicion (“RAS”) that the number is associated with 

terrorism. Once the seed has been RAS-approved, NSA analysts may run queries that will 

return the calling records for that seed, and permit “contact chaining” to develop a fuller 

picture of the seed’s contacts. Contact chaining enables analysts to retrieve not only the 

numbers directly in contact with the seed number (the “first hop”), but also numbers in 

contact with all first hop numbers (the “second hop”), as well as all numbers in contact with

all second hop numbers (the “third hop”).

The Section 215 telephone records program has its roots in counterterrorism efforts 

that originated in the immediate aftermath of the September 11 attacks. The NSA began 

collecting telephone metadata in bulk as one part of what became known as the President’s 

Surveillance Program. From late 2001 through early 2006, the NSA collected bulk 

telephony metadata based upon presidential authorizations issued every thirty to forty-five 

days. In May 2006, the FISC first granted an application by the government to conduct the 

telephone records program under Section 215.19 The government’s application relied 

heavily on the reasoning of a 2004 FISA court opinion and order approving the bulk 

collection of Internet metadata under a different provision of FISA.20 

On June 5, 2013, the British newspaper The Guardian published an article based on 

unauthorized disclosures of classified documents by Edward Snowden, a contractor for the 

NSA, which revealed the telephone records program to the public. On August 29, 2013, FISC 

Judge Claire Eagan issued an opinion explaining the court’s rationale for approving the 

Section 215 telephone records program.21 Although prior authorizations of the program 

had been accompanied by detailed orders outlining applicable rules and minimization 

procedures, this was the first judicial opinion explaining the FISA court’s legal reasoning in 

authorizing the bulk records collection. The Section 215 program was reauthorized most 

recently by the FISC on January 3, 2014.

Over the years, a series of compliance issues were brought to the attention of the 

FISA court by the government. However, none of these compliance issues involved 

significant intentional misuse of the system. Nor has the Board seen any evidence of bad 

faith or misconduct on the part of any government officials or agents involved with the 

program.22 Rather, the compliance issues were recognized by the FISC — and are 

 

19 See Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things, No. BR 06-05 (FISA Ct. May 24, 2006).

20 See Opinion and Order, No. PR/TT [redacted] (FISA Ct.).

21 See Amended Memorandum Opinion, In re Application of the Federal Bureau of Investigation for an 

Order Requiring the Production of Tangible Things, No. BR 13-109 (FISA Ct. Aug. 29, 2013).

22 Neither has the Board seen any evidence that would suggest any telephone providers did not rely in 

good faith on orders of the FISC when producing metadata to the government.
10

recognized by the Board — as a product of the program’s technological complexity and vast 

scope, illustrating the risks inherent in such a program.

B. Legal Analysis: Statutory and Constitutional Issues

Section 215 is designed to enable the FBI to acquire records that a business has in 

its possession, as part of an FBI investigation, when those records are relevant to the 

investigation. Yet the operation of the NSA’s bulk telephone records program bears almost 

no resemblance to that description. While the Board believes that this program has been 

conducted in good faith to vigorously pursue the government’s counterterrorism mission 

and appreciates the government’s efforts to bring the program under the oversight of the 

FISA court, the Board concludes that Section 215 does not provide an adequate legal basis 

to support the program. 

There are four grounds upon which we find that the telephone records program 

fails to comply with Section 215. First, the telephone records acquired under the program 

have no connection to any specific FBI investigation at the time of their collection. Second, 

because the records are collected in bulk — potentially encompassing all telephone calling 

records across the nation — they cannot be regarded as “relevant” to any FBI investigation 

as required by the statute without redefining the word relevant in a manner that is circular, 

unlimited in scope, and out of step with the case law from analogous legal contexts 

involving the production of records. Third, the program operates by putting telephone 

companies under an obligation to furnish new calling records on a daily basis as they are 

generated (instead of turning over records already in their possession) — an approach 

lacking foundation in the statute and one that is inconsistent with FISA as a whole. Fourth, 

the statute permits only the FBI to obtain items for use in its investigations; it does not 

authorize the NSA to collect anything. 

In addition, we conclude that the program violates the Electronic Communications 

Privacy Act. That statute prohibits telephone companies from sharing customer records 

with the government except in response to specific enumerated circumstances, which do 

not include Section 215 orders. 

Finally, we do not agree that the program can be considered statutorily authorized 

because Congress twice delayed the expiration of Section 215 during the operation of the 

program without amending the statute. The “reenactment doctrine,” under which Congress 

is presumed to have adopted settled administrative or judicial interpretations of a statute, 

does not trump the plain meaning of a law, and cannot save an administrative or judicial 

interpretation that contradicts the statute itself. Moreover, the circumstances presented 

here differ in pivotal ways from any in which the reenactment doctrine has ever been 

applied, and applying the doctrine would undermine the public’s ability to know what the 

law is and hold their elected representatives accountable for their legislative choices.
11

The NSA’s telephone records program also raises concerns under both the First and 

Fourth Amendments to the United States Constitution. We explore these concerns and 

explain that while government officials are entitled to rely on existing Supreme Court 

doctrine in formulating policy, the existing doctrine does not fully answer whether the 

Section 215 telephone records program is constitutionally sound. In particular, the scope 

and duration of the program are beyond anything ever before confronted by the courts, 

and as a result of technological developments, the government possesses capabilities to 

collect, store, and analyze data not available when existing Supreme Court doctrine was 

developed. Without seeking to predict the direction of changes in Supreme Court doctrine, 

the Board urges as a policy matter that the government consider how to preserve 

underlying constitutional guarantees in the face of modern communications technology 

and surveillance capabilities.

C. Policy Implications of the Section 215 Program

The threat of terrorism faced today by the United States is real. The Section 215 

telephone records program was intended as one tool to combat this threat — a tool that 

would help investigators piece together the networks of terrorist groups and the patterns 

of their communications with a speed and comprehensiveness not otherwise available. 

However, we conclude that the Section 215 program has shown minimal value in 

safeguarding the nation from terrorism. Based on the information provided to the Board, 

including classified briefings and documentation, we have not identified a single instance 

involving a threat to the United States in which the program made a concrete difference in 

the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in 

which the program directly contributed to the discovery of a previously unknown terrorist 

plot or the disruption of a terrorist attack. And we believe that in only one instance over the 

past seven years has the program arguably contributed to the identification of an unknown 

terrorism suspect. Even in that case, the suspect was not involved in planning a terrorist 

attack and there is reason to believe that the FBI may have discovered him without the 

contribution of the NSA’s program.

The Board’s review suggests that where the telephone records collected by the NSA 

under its Section 215 program have provided value, they have done so primarily in two 

ways: by offering additional leads regarding the contacts of terrorism suspects already 

known to investigators, and by demonstrating that foreign terrorist plots do not have a U.S. 

nexus. The former can help investigators confirm suspicions about the target of an inquiry 

or about persons in contact with that target. The latter can help the intelligence community 

focus its limited investigatory resources by avoiding false leads and channeling efforts 

where they are needed most. But with respect to the former, our review suggests that the 

Section 215 program offers little unique value but largely duplicates the FBI’s own 

information gathering efforts. And with respect to the latter, while the value of proper 
12

resource allocation in time-sensitive situations is not to be discounted, we question 

whether the American public should accept the government’s routine collection of all of its 

telephone records because it helps in cases where there is no threat to the United States.

The Board also has analyzed the Section 215 program’s implications for privacy and 

civil liberties and has concluded that they are serious. Because telephone calling records 

can reveal intimate details about a person’s life, particularly when aggregated with other 

information and subjected to sophisticated computer analysis, the government’s collection 

of a person’s entire telephone calling history has a significant and detrimental effect on 

individual privacy. The circumstances of a particular call can be highly suggestive of its 

content, such that the mere record of a call potentially offers a window into the caller’s 

private affairs. Moreover, when the government collects all of a person’s telephone records, 

storing them for five years in a government database that is subject to high-speed digital 

searching and analysis, the privacy implications go far beyond what can be revealed by the 

metadata of a single telephone call.

Beyond such individual privacy intrusions, permitting the government to routinely 

collect the calling records of the entire nation fundamentally shifts the balance of power 

between the state and its citizens. With its powers of compulsion and criminal prosecution, 

the government poses unique threats to privacy when it collects data on its own citizens. 

Government collection of personal information on such a massive scale also courts the 

ever-present danger of “mission creep.” An even more compelling danger is that personal 

information collected by the government will be misused to harass, blackmail, or 

intimidate, or to single out for scrutiny particular individuals or groups. To be clear, the 

Board has seen no evidence suggesting that anything of the sort is occurring at the NSA and 

the agency’s incidents of non-compliance with the rules approved by the FISC have 

generally involved unintentional misuse. Yet, while the danger of abuse may seem remote, 

given historical abuse of personal information by the government during the twentieth 

century, the risk is more than merely theoretical.

Moreover, the bulk collection of telephone records can be expected to have a chilling 

effect on the free exercise of speech and association, because individuals and groups 

engaged in sensitive or controversial work have less reason to trust in the confidentiality of 

their relationships as revealed by their calling patterns. Inability to expect privacy vis-à-vis 

the government in one’s telephone communications means that people engaged in wholly 

lawful activities — but who for various reasons justifiably do not wish the government to 

know about their communications — must either forgo such activities, reduce their 

frequency, or take costly measures to hide them from government surveillance. The 

telephone records program thus hinders the ability of advocacy organizations to 

communicate confidentially with members, donors, legislators, whistleblowers, members 

of the public, and others. For similar reasons, awareness that a record of all telephone calls 
13

is stored in a government database may have debilitating consequences for communication 

between journalists and sources. 

To be sure, detailed rules currently in place limit the NSA’s use of the telephone 

records it collects. These rules offer many valuable safeguards designed to curb the 

intrusiveness of the program. But in our view, they cannot fully ameliorate the implications 

for privacy, speech, and association that follow from the government’s ongoing collection of 

virtually all telephone records of every American. Any governmental program that entails 

such costs requires a strong showing of efficacy. We do not believe the NSA’s telephone 

records program conducted under Section 215 meets that standard.

D. Operation of the Foreign Intelligence Surveillance Court

Congress created the FISA court in 1978 in response to concerns about the abuse of 

electronic surveillance. This represented a major restructuring of the domestic conduct of 

foreign intelligence surveillance, with constitutional implications. Prior to then, successive 

Presidents had authorized national security wiretaps and other searches solely on the basis 

of their executive powers under Article II of the Constitution. The Foreign Intelligence 

Surveillance Act (“FISA”) of 1978 provided a procedure under which the Attorney General 

could obtain a judicial warrant authorizing the use of electronic surveillance in the United 

States for foreign intelligence purposes.

Over time, the scope of FISA and the jurisdiction of the FISA court have evolved. 

Initially, the FISC’s sole role was to approve individualized FISA warrants for electronic 

surveillance relating to a specific person, a specific place, or a specific communications 

account or device. Beginning in 2004, the role of the FISC changed when the government 

approached the court with its first request to approve a program involving what is now 

referred to as “bulk collection.” In conducting this study, the Board was told by former 

FISA court judges that they were quite comfortable hearing only from government 

attorneys when evaluating individual surveillance requests but that the judges’ decision 

making would be greatly enhanced if they could hear opposing views when ruling on 

requests to establish new surveillance programs.

Upon the FISC’s receipt of a proposed application, a member of the court’s legal staff 

will review the application and evaluate whether it meets the legal requirements under 

FISA. The FISC’s legal staff are career employees who have developed substantial expertise 

in FISA, but they serve as staff to the judges rather than as advocates. While their role 

includes identifying any flaws in the government’s statutory or constitutional analysis, it 

does not reach to contesting the government’s arguments in the manner of an opposing 

party. The FISA court process for considering applications may include a hearing, and FISC 

judges have the authority to take testimony from government employees familiar with the 

technical details of an application. FISA does not provide a mechanism for the court to 
14

invite non-governmental parties to provide views on pending government applications or 

otherwise participate in FISC proceedings prior to approval of an application. 

FISA also established a Foreign Intelligence Court of Review (“FISCR”), comprised of 

three judges drawn from U.S. district courts or courts of appeals. Appeals to the FISCR have 

been rare: thus far there have been only two decisions issued by the court. Electronic 

communications service providers have some limited ability to appeal FISC orders, but 

FISA does not provide a way for the FISCR to receive the views of other non-governmental 

parties on appeals pending before it.23 

The FISC’s ex parte, classified proceedings have raised concerns that the court does 

not take adequate account of positions other than those of the government. It is critical to 

the integrity of the process that the public has confidence in its impartiality and rigor. 

Therefore, the Board believes that some reforms are appropriate and would help bolster 

public confidence in the operation of the court. The most important reforms proposed by 

the Board are: (1) creation of a panel of private attorneys, Special Advocates, who can be 

brought into cases involving novel and significant issues by FISA court judges; (2) 

development of a process facilitating appellate review of such decisions; and (3) providing 

increased opportunity for the FISC to receive technical assistance and legal input from 

outside parties.

E. Transparency Issues

In a representative democracy, the tension between openness and secrecy is 

inevitable and complex. The challenges are especially acute in the area of intelligence 

collection, where the powers exercised by the government implicate fundamental rights 

and our enemies are constantly trying to understand our capabilities in order to avoid 

detection. In this context, both openness and secrecy are vital to our survival, and we must 

strive to develop and implement intelligence programs in ways that serve both values.

Transparency is one of the foundations of democratic governance. Our 

constitutional system of government relies upon the participation of an informed 

electorate. This in turn requires public access to information about the activities of the 

government. Transparency supports accountability. It is especially important with regard 

to activities of the government that affect the rights of individuals, where it is closely 

interlinked with redress for violations of rights. In the intelligence context, although a 

certain amount of secrecy is necessary, transparency regarding collection authorities and 

 

23 However, the court has in one instance accepted amicus, or “friend of the court,” briefs on a 

significant legal question pending before it.
15

their exercise can increase public confidence in the intelligence process and in the 

monumental decisions that our leaders make based on intelligence products. 

In the aftermath of the Snowden disclosures, the government has released a 

substantial amount of information on the leaked government surveillance programs. 

Although there remains a deep well of distrust, these official disclosures have helped foster 

greater public understanding of government surveillance programs. However, to date the 

official disclosures relate almost exclusively to specific programs that had already been the 

subject of leaks, and we must be careful in citing these disclosures as object lessons for 

what additional transparency might be appropriate in the future. 

The Board believes that the government must take the initiative and formulate longterm solutions that promote greater transparency for government surveillance policies 

more generally, in order to inform public debate on technology, national security, and civil 

liberties going beyond the current controversy. In this effort, all three branches have a role. 

For the executive branch, disclosures about key national security programs that involve the 

collection, storage and dissemination of personal information — such as the operation of 

the National Counterterrorism Center — show that it is possible to describe practices and 

policies publicly, even those that have not been otherwise leaked, without damage to 

national security or operational effectiveness. 

With regard to the legislative process, even where classified intelligence operations 

are involved, the purposes and framework of a program for domestic intelligence collection 

should be debated in public. During the process of developing legislation, some hearings 

and briefings may need to be conducted in secret to ensure that policymakers fully 

understand the intended use of a particular authority. But the government should not base 

an ongoing program affecting the rights of Americans on an interpretation of a statute that 

is not apparent from a natural reading of the text. In the case of Section 215, the 

government should have made it publicly clear in the reauthorization process that it 

intended for Section 215 to serve as legal authority to collect data in bulk on an ongoing 

basis. 

There is also a need for greater transparency regarding operation of the FISA court. 

Prospectively, we encourage the FISC judges to continue the recent practice of writing 

opinions with an eye to declassification, separating specific sensitive facts peculiar to the 

case at hand from broader legal analyses. We also believe that there is significant value in 

producing declassified versions of earlier opinions, and recommend that the government 

undertake a classification review of all significant FISC opinions and orders involving novel 

interpretations of law. We realize that the process of redacting opinions not drafted for 

public disclosure will be more difficult and will burden individuals with other pressing 

duties, but we believe that it is appropriate to make the effort where those opinions and 

orders complete the historical picture of the development of legal doctrine regarding 
16

matters within the jurisdiction of the FISA court. In addition, should the government adopt 

our recommendation for a Special Advocate in the FISC, the nature and extent of that 

advocate’s role must be transparent to be effective.

It is also important to promote transparency through increased reporting to the 

public on the scope of surveillance programs. We urge the government to work with 

Internet service providers and other companies to reach agreement on standards allowing 

reasonable disclosures of aggregate statistics that would be meaningful without revealing 

sensitive government capabilities or tactics. We recommend that the government should 

also increase the level of detail in its unclassified reporting to Congress and the public 

regarding surveillance programs.

II. Overview of the PCLOB’s Recommendations 

A. Section 215 Program

Recommendation 1: The government should end its Section 215 bulk telephone 

records program. 

The Section 215 bulk telephone records program lacks a viable legal foundation 

under Section 215, implicates constitutional concerns under the First and Fourth 

Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has 

shown only limited value. As a result, the Board recommends that the government end the 

program. 

Without the current Section 215 program, the government would still be able to 

seek telephone calling records directly from communications providers through other 

existing legal authorities. The Board does not recommend that the government impose data 

retention requirements on providers in order to facilitate any system of seeking records 

directly from private databases.

Once the Section 215 bulk collection program has ended, the government should 

purge the database of telephone records that have been collected and stored during the 

program’s operation, subject to limits on purging data that may arise under federal law or 

as a result of any pending litigation.

The Board also recommends against the enactment of legislation that would merely 

codify the existing program or any other program that collects bulk data on such a massive 

scale regarding individuals with no suspected ties to terrorism or criminal activity. 

Moreover, the Board’s constitutional analysis should provide a message of caution, and as a 

policy matter, given the significant privacy and civil liberties interests at stake, if Congress 
17

seeks to provide legal authority for any new program, it should seek the least intrusive 

alternative and should not legislate to the outer bounds of its authority.

The Board recognizes that the government may need a short period of time to 

explore and institutionalize alternative approaches, and believes it would be appropriate 

for the government to wind down the 215 program over a brief interim period. If the 

government does find the need for a short wind-down period, the Board urges that it 

should follow the procedures under Recommendation 2 below.

Recommendation 2: The government should immediately implement 

additional privacy safeguards in operating the Section 215 bulk collection 

program.

The Board recommends that the government immediately implement several 

additional privacy safeguards to mitigate the privacy impact of the present Section 215 

program. The recommended changes can be implemented without any need for 

congressional or FISC authorization. Specifically, the government should: 

(a) reduce the retention period for the bulk telephone records program from five 

years to three years; 

(b) reduce the number of “hops” used in contact chaining from three to two; 

(c) submit the NSA’s “reasonable articulable suspicion” determinations to the FISC 

for review after they have been approved by NSA and used to query the database; 

and

(d) require a “reasonable articulable suspicion” determination before analysts may 

submit queries to, or otherwise analyze, the “corporate store,” which contains the 

results of contact chaining queries to the full “collection store.”

B. FISA Court Operations

Recommendation 3: Congress should enact legislation enabling the FISC to 

hear independent views, in addition to the government’s views, on novel and 

significant applications and in other matters in which a FISC judge determines 

that consideration of the issues would merit such additional views.

Congress should authorize the establishment of a panel of outside lawyers to serve 

as Special Advocates before the FISC in appropriate cases. The Presiding Judge of the FISC 

should select attorneys drawn from the private sector to serve on the panel. The attorneys 
18

should be capable of obtaining appropriate security clearances and would then be available 

to be called upon to participate in certain FISC proceedings. 

The decision as to whether the Special Advocate would participate in any particular 

matter should be left to the discretion of the FISC. The Board expects that the court would 

invite the Special Advocate to participate in matters involving interpretation of the scope of 

surveillance authorities, other matters presenting novel legal or technical questions, or 

matters involving broad programs of collection. The role of the Special Advocate, when 

invited by the court to participate, would be to make legal arguments addressing privacy, 

civil rights, and civil liberties interests. The Special Advocate would review the 

government’s application and exercise his or her judgment about whether the proposed 

surveillance or collection is consistent with law or unduly affects privacy and civil liberties 

interests. 

Recommendation 4: Congress should enact legislation to expand the 

opportunities for appellate review of FISC decisions by the FISCR and for review 

of FISCR decisions by the Supreme Court of the United States.

Providing for greater appellate review of FISC and FISCR rulings will strengthen the 

integrity of judicial review under FISA. Providing a role for the Special Advocate in seeking 

that appellate review will further increase public confidence in the integrity of the process.

Recommendation 5: The FISC should take full advantage of existing authorities 

to obtain technical assistance and expand opportunities for legal input from 

outside parties.

FISC judges should take advantage of their ability to appoint Special Masters or 

other technical experts to assist them in reviewing voluminous or technical materials, 

either in connection with initial applications or in compliance reviews. In addition, the FISC 

and the FISCR should develop procedures to facilitate amicus participation by third parties 

in cases involving questions that are of broad public interest, where it is feasible to do so 

consistent with national security. 

C. Promoting Transparency

Recommendation 6: To the maximum extent consistent with national security, 

the government should create and release with minimal redactions declassified 

versions of new decisions, orders and opinions by the FISC and FISCR in cases 

involving novel interpretations of FISA or other significant questions of law, 

technology or compliance.
19

FISC judges should continue their recent practice of drafting opinions in cases 

involving novel issues and other significant decisions in the expectation that declassified 

versions will be released to the public. The government should promptly create and release 

declassified versions of these FISC opinions.

Recommendation 7: Regarding previously written opinions, the government 

should perform a declassification review of decisions, orders and opinions by 

the FISC and FISCR that have not yet been released to the public and that involve 

novel interpretations of FISA or other significant questions of law, technology or 

compliance. 

Although it may be more difficult to declassify older FISC opinions drafted without 

expectation of public release, the release of such older opinions is still important to 

facilitate public understanding of the development of the law under FISA. The government 

should create and release declassified versions of older opinions in novel or significant 

cases to the greatest extent possible consistent with protection of national security. This 

should cover programs that have been discontinued, where the legal interpretations 

justifying such programs have ongoing relevance. 

Recommendation 8: The Attorney General should regularly and publicly report 

information regarding the operation of the Special Advocate program 

recommended by the Board. This should include statistics on the frequency and 

nature of Special Advocate participation in FISC and FISCR proceedings.

These reports should include statistics showing the number of cases in which a 

Special Advocate participated, as well as the number of cases identified by the government 

as raising a novel or significant issue, but in which the judge declined to invite Special 

Advocate participation. The reports should also indicate the extent to which FISC decisions 

have been subject to review in the FISCR and the frequency with which Special Advocate 

requests for FISCR review have been granted. 

Recommendation 9: The government should work with Internet service 

providers and other companies that regularly receive FISA production orders to 

develop rules permitting the companies to voluntarily disclose certain 

statistical information. In addition, the government should publicly disclose 

more detailed statistics to provide a more complete picture of government 

surveillance operations.

The Board urges the government to pursue discussions with communications 

service providers to determine the maximum amount of information that companies could 

voluntarily publish to show the extent of government surveillance requests they receive 

per year in a way that is consistent with protection of national security. In addition, the 
20

government should itself release annual reports showing in more detail the nature and 

scope of FISA surveillance for each year.

Recommendation 10: The Attorney General should fully inform the PCLOB of 

the government’s activities under FISA and provide the PCLOB with copies of the 

detailed reports submitted under FISA to the specified committees of Congress. 

This should include providing the PCLOB with copies of the FISC decisions 

required to be produced under Section 601(a)(5).24

Recommendation 11: The Board urges the government to begin developing 

principles and criteria for transparency.

The Board urges the Administration to commence the process of articulating 

principles and criteria for deciding what must be kept secret and what can be released as to 

existing and future programs that affect the American public.

Recommendation 12: The scope of surveillance authorities affecting Americans 

should be public.

In particular, the Administration should develop principles and criteria for the 

public articulation of the legal authorities under which it conducts surveillance affecting 

Americans. If the text of the statute itself is not sufficient to inform the public of the scope 

of asserted government authority, then the key elements of the legal opinion or other 

documents describing the government’s legal analysis should be made public so there can 

be a free and open debate regarding the law’s scope. This includes both original enactments 

such as 215’s revisions and subsequent reauthorizations. While sensitive operational 

details regarding the conduct of government surveillance programs should remain 

classified, and while legal interpretations of the application of a statute in a particular case 

may also be secret so long as the use of that technique in a particular case is secret, the 

government’s interpretations of statutes that provide the basis for ongoing surveillance 

programs affecting Americans can and should be made public.

 

24 Section 601(a)(5), which is codified at 50 U.S.C. § 1871(a)(5), requires the congressional intelligence 

and judiciary committees to be provided with decisions, orders, and opinions from the FISC, and from its 

companion appellate court, that include significant construction or interpretation of FISA provisions.
21

Part 3:

DESCRIPTION OF THE NSA SECTION 215 PROGRAM

I. Telephone Calling Records

When a person completes a telephone call, telephone company equipment generates 

a record of certain details about that call. These “call detail records” typically include much 

of the information that appears on a customer’s telephone bill: the date and time of a call, 

its duration, and the participating telephone numbers. Such records also can include a 

range of technical information about how the call was routed from one participant to the 

other through the infrastructure of the telephone companies’ networks. Telephone 

companies create these records in order to bill customers for their calls, detect fraud, and 

for other business purposes.

While calling records provide information about particular telephone calls, they do 

not include the contents of any telephone conversations. Because these records provide 

information about a communication but not the communication itself, they often are 

referred to as a form of “metadata,” a word sometimes defined as “data about data.” Call 

detail records often are called “telephony metadata.”

After generating calling records in the normal course of business, telephone 

companies keep them on file for varying periods of time. Federal regulations presently 

require the companies to retain toll billing records for a minimum of eighteen months.25

II. What the NSA Collects under Section 215 of the Patriot Act

The Foreign Intelligence Surveillance Act (“FISA”) includes a “business records” 

provision that allows the FBI to obtain books, records, papers, documents, and other items 

that may be relevant to a counterterrorism investigation. To obtain such records under this 

provision, the FBI must file an application with the Foreign Intelligence Surveillance Court 

(“FISC” or “FISA court”) requesting that the court issue an order directing a person or 

entity to turn over the items sought.26 The business records provision of FISA was 

significantly expanded by Section 215 of the Patriot Act in 2001, and as a result it 

frequently is referred to as Section 215.27 Under a program authorized by the FISA court 

pursuant to Section 215, the NSA is permitted to obtain all call detail records generated by 

 

25 See 47 C.F.R. § 42.6.

26 See 50 U.S.C. § 1861(a)(1), (b)(2)(A). See also pages 40 to 42 of this Report for a more detailed 

discussion of FISA’s business records provision.

27 See Pub. L. No. 107-56, § 215, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. § 1861).
22

certain telephone companies in the United States. The FISA court has determined that 

Section 215 provides a legal basis to order the telephone companies to facilitate this 

program by supplying the NSA with their calling records.28

Under the FISA court’s orders, certain telephone companies must provide the NSA 

with “all call detail records” generated by those companies.29 Because the companies are 

directed to supply virtually all of their calling records to the NSA, the FISA court’s orders 

result in the production of call detail records for a large volume of telephone 

communications; the NSA has described its program as enabling “comprehensive” analysis 

of telephone communications “that cross different providers and telecommunications 

networks.”30 The vast majority of the records obtained are for purely domestic calls, 

meaning those calls in which both participants are located within the United States, 

including local calls.

The calling records provided to the NSA do not identify which individual is 

associated with any particular telephone number: they do not include the name, address, or 

financial information of any telephone subscriber or customer. (Such information can be 

obtained by the government through other means, however, including reverse telephone 

directories and subpoenas issued to the telephone companies.) Nor do the records, as 

noted, include the spoken contents of any telephone conversation.31 In other words, the 

NSA is not able to listen to any telephone calls under the authority provided by these 

orders.

In addition, the calling records that the NSA collects under its Section 215 program 

do not currently include “cell site location information.” That information, unique to mobile 

phones, is a component of a call detail record that shows which cell phone tower a mobile 

phone is connecting with. Thus it can be used to track the geographic location of a mobile 

phone user at that time the user places or receives a call. At the NSA’s request, telephone 

companies remove that information from their calling records before transmitting the 

 

28 See Amended Memorandum Opinion, In re Application of the Federal Bureau of Investigation for an 

Order Requiring the Production of Tangible Things, No. BR 13-109 (FISA Ct. Aug. 29, 2013); Memorandum, In 

re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, 

No. BR 13-158 (FISA Ct. Oct. 11, 2013). See pages 40 to 46 of this Report for a description of the FISA court’s 

initial approval of the NSA’s telephone records program under Section 215.

29 Primary Order at 3, In re Application of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things, No. BR 13-158 (FISA Ct. Oct. 11, 2013) (“Primary Order”). At least one 

telephone company presently is ordered to provide less than all of its call detail records. See id. at 3-4.

30 See Declaration of Teresa H. Shea, Signals Intelligence Director, National Security Agency, ¶¶ 59-60, 

ACLU v. Clapper, No. 13-3994 (S.D.N.Y. Oct. 1, 2013) (“Shea Decl.”).

31 See Primary Order at 3 n.1 (noting that “[t]elephony metadata does not include the substantive 

content of any communication, as defined by 18 U.S.C. § 2510(8)”). Section 2510(8) defines “content” as “any 

information concerning the substance, purport, or meaning of that communication.” 18 U.S.C. § 2510(8).
23

records to the NSA.32 In the past, the NSA has collected a limited amount of cell site location 

information to test the feasibility of incorporating such information into its Section 215 

program, but that information has not been used for intelligence analysis, and the 

government has stated that the agency does not now collect it under this program.

Some information obtained by the NSA under Section 215 could nevertheless 

provide a general indication of a caller’s geographic location. For instance, the area code 

and prefix of a landline telephone number can indicate the general area from which a call is 

sent. The same may be true of the “trunk identifier” associated with a telephone call, which 

pinpoints a segment of the communication line that connects two telephones during a 

conversation.33

III. Delivery of Calling Records from Telephone Companies to the NSA

Approximately every ninety days, the government files an application with the FISA 

court requesting that the telephone companies be ordered to continue providing their 

calling records to the NSA for another ninety days. These applications are signed by 

officials from the FBI, as required by Section 215, but they typically note that the FBI is 

seeking the production of telephone records to the NSA. Accordingly, the FISA court’s 

orders direct the telephone companies to “produce to NSA” their calling records.34

When the FISA court approves the government’s applications to renew the program, 

the court issues a “primary order” outlining the scope of what each telephone company 

must furnish to the NSA and the conditions under which the government can use, retain, 

and disseminate the data. At the same time, the court issues individual “secondary orders” 

separately addressed to each telephone company, directing it to comply with those terms 

and produce its records to the NSA.35 After receiving a secondary order, a telephone 

company must continue the production of its records “on an ongoing daily basis” for the 

 

32 Amended Memorandum Opinion, In re Application of the Federal Bureau of Investigation for an Order 

Requiring the Production of Tangible Things, at 4 n.5, No. BR 13-109 (FISA Ct. Aug. 29, 2013); see also

Declaration of Acting Assistant Director Robert J. Holley, Federal Bureau of Investigation, ¶ 5, ACLU v. Clapper, 

No. 13-3994 (S.D.N.Y. Oct. 1, 2013) (“Holley Decl.”) (stating that metadata obtained under the orders does not 

include cell site location information). Agency personnel check this portion of incoming records to ensure 

that cell site location information has been removed. 

33 See Primary Order at 3 n.1 (noting that for purposes of the order, “telephony metadata” includes the 

“trunk identifier” for a call).

34 Primary Order at 3.

35 See, e.g., Secondary Order, In re Application of the Federal Bureau of Investigation for an Order 

Requiring the Production of Tangible Things, No. BR 13-80 (FISA Ct. Apr. 25, 2013) (“Secondary Order”). 
24

ninety-day duration of the order.36 The company may not disclose to anyone that it has 

received such an order.37

Each telephone company must furnish the NSA with “an electronic copy” of its 

calling records.38 Companies transmit those records to the NSA, which stores them “in 

repositories within secure networks.”39

Telephone companies must provide their calling records to the NSA on a daily basis

until the expiration date of each FISA court order. In other words, when the companies are 

served with an order from the FISC, they do not hand over to the NSA the calling records 

they have in their possession at that time. Instead, over the next ninety days, they must 

provide the NSA with the new calling records that they generate each day.

IV. How the NSA Stores and Handles the Telephone Records

When the records of particular telephone calls reach the NSA, the agency stores and 

processes those records in repositories within secure networks under its control.40 Upon 

the arrival of new records at the NSA, agency technical personnel perform a number of 

steps to ensure that the records, which come from different telephone companies, are in a 

standard format compatible with the NSA’s databases. The agency is permitted to duplicate 

the data it receives for storage in recovery back-up systems.41

 

36 Primary Order at 3-4; id. at 17 (indicating duration of the order). 

37 Every “secondary order” delivered to the telephone companies directing them to provide calling 

records to the NSA prohibits the companies from publicly disclosing the existence of the order and tightly 

limits the persons with whom that information may be shared. Specifically, the secondary orders direct that, 

with three exceptions, “no person shall disclose to any other person that the FBI or NSA has sought or 

obtained tangible things under this Order.” Secondary Order at 2. The personnel who receive a secondary 

order on behalf of the telephone companies are permitted to disclose its existence only to (1) “those persons 

to whom disclosure is necessary to comply with such Order,” (2) “an attorney to obtain legal advice or 

assistance with respect to the production of things in response to the Order,” and (3) “other persons as 

permitted by the Director of the FBI or the Director’s designee.” Id. Any person to whom disclosure is made 

under one of these exceptions must be informed of the limitations set forth above. Id. at 3. Furthermore, any 

person who makes or intends to make a disclosure under the first or third exception above (i.e., a disclosure 

to anyone except to an attorney for legal assistance) must, at the request of the FBI director or his designee, 

“identify to the Director or such designee the person to whom such disclosure will be made or to whom such 

disclosure was made prior to the request.” Id. at 3.

38 Primary Order at 3-4. 

39 Primary Order at 4.

40 Primary Order at 4.

41 See Primary Order at 4-5 n.2. Should it ever be necessary to recover data that is stored in these backup systems, “in the event of any natural disaster, man-made emergency, attack, or other unforeseen event,” 

the FISA court’s orders appear to require that any access or use of the back-up data be conducted in 

compliance with the same rules that ordinarily govern utilization of the records. Id.
25

Once the calling records are properly formatted, NSA houses them within its data 

repositories. At this point, technical personnel may take additional measures to make the 

calling records usable for intelligence analysis, including removing “high volume” 

telephone identifiers and other unwanted data.42

The NSA is required to limit who has access to the calling records it obtains. The 

agency must restrict access to authorized personnel who have received training on the use 

of those records. 43 Such personnel can include both NSA employees and other individuals 

who are working under the NSA Director’s control on Signals Intelligence.44 The calling 

records are routed to dedicated portions of NSA’s systems and are required to carry unique 

data markings enabling software and other controls to restrict access to the authorized 

personnel who have received the proper training and guidance.45 Training is required both 

for intelligence analysts and for the technical personnel who access the data to make it 

usable for analysis.46

Calling records must be deleted from the NSA’s repositories no later than five years 

after the agency receives them.47 If a calling record shows up in a “query” performed by an 

analyst, however — a process described below — the information about that call need not 

be destroyed after five years.

V. How the NSA Analyzes the Telephone Records

The NSA uses the calling records it obtains under Section 215 to attempt to identify 

communications among known and unknown terrorism suspects, particularly those 

located inside the United States.48 When the NSA identifies communications or telephone 

numbers of interest, it issues intelligence reports to other federal agencies, such as the FBI, 

 

42 Primary Order at 6.

43 Primary Order at 5.

44 See Primary Order at 6 n.5 (requiring that all personnel engaged in signals intelligence operations be 

“under the direction, authority, or control” of the director of the NSA). 

45 Primary Order at 4-5.

46 Primary Order at 5. The training requirements do not, however, extend to all technical personnel 

who might have access to the records, including those responsible for “NSA’s underlying corporate 

infrastructure and the transmission of the BR metadata from the specified persons to NSA.” Id. at 5 n.3.

47 Primary Order at 14.

48 See Shea Decl. ¶ 8 (stating that “by analyzing telephony metadata based on telephone numbers 

associated with terrorist activities, trained expert intelligence analysts can work to determine whether 

known or suspected terrorists have been in contact with individuals in the U.S.”). The records of domestic and 

international calls — where one or both participants are inside the United States — are viewed as the most 

“analytically significant” by the agency, which sees them as “particularly likely” to identify suspects in the 

United States who are planning domestic attacks. Shea Decl. ¶ 9.
26

that work to prevent terrorist attacks. In carrying out this endeavor, the NSA is required by 

the FISA court to adhere to certain “minimization” requirements, described below, that 

govern the manner in which the calling records may be used within the agency and 

disseminated outside of it.49

The NSA is prohibited from using the calling records it obtains under the FISA 

court’s orders except as specified in those orders.50 The vast majority of the records the 

NSA collects are never seen by any person.51

The rules governing the NSA’s access to the calling records under the FISA court’s 

orders are set forth below.

A. Contact Chaining and the Query Process

Analysis of calling records under this program begins with telephone numbers that 

already are suspected of being associated with terrorism. The NSA then searches for other 

telephone numbers that have been in contact with a suspected number, or in contact with 

those who have been in contact with a suspected number.52

Initially, NSA analysts are permitted to access the Section 215 calling records only 

through “queries” of the database. A query is a software-enabled search for a specific 

number or other selection term within the database.53 When an analyst performs a query of 

a telephone number, for instance, the software interfaces with the database and provides 

results to the analyst that include a record of calls in which that number participated.

Analysts perform these queries to facilitate what is called “contact chaining” — the 

process of identifying the connections among individuals through their calls with each 

other.54 The goals of contact chaining are to identify unknown terrorist operatives through 

 

49 See Primary Order at 4.

50 See Primary Order at 4.

51 Shea Decl. ¶ 23.

52 Calling records may be searched or identified using numbers other than a “telephone number” as 

that term is normally used — i.e., a number associated with a specific telephone that another caller can dial in 

order to reach that phone. The records may also include other unique numbers that are associated with a 

particular telephone user or a particular communications device. Among these are a telephone calling card 

number, which is used to pay for individual telephone calls, and an International Mobile station Equipment 

Identity (“IMEI”) number, which is uniquely associated with a particular mobile telephone. See Primary Order

at 3 n.1 (explaining that telephony metadata includes IMEI numbers, IMSI numbers, and calling card 

numbers).

53 Analysts can search the database using numbers, words, or symbols that uniquely identify a 

particular caller or device, like a telephone number or a calling card number. These types of selection terms 

are referred to as “identifiers.” But analysts also can search for selection terms that are not uniquely 

associated with any particular caller or device.

54 Primary Order at 6. 
27

their contacts with known suspects, discover links between known suspects, and monitor 

the pattern of communications among suspects.55 Presently, the only purpose for which 

NSA analysts are permitted to search the Section 215 calling records housed in the agency’s 

database is to conduct queries as described above, which are designed to build contact 

chains leading outward from a target to other telephone numbers.56 The NSA has stated 

that it does not conduct pattern-based searches. Instead, every search begins with a 

specific telephone number or other specific selection term.57

B. Standards for Approving Queries

A telephone number (or other selection term) used to search the calling records is 

referred to as a “seed.”58 Before analysts can search the records with that seed, one of 

twenty-two designated NSA officials must give approval.59 Such approval can be granted 

only if the official determines that there is reasonable, articulable suspicion that the 

selection term is associated with terrorism: in the words of the FISA court orders, a term 

can be approved for use as a seed only after the designated official has determined that, 

“based on the factual and practical considerations of everyday life on which reasonable and 

prudent persons act, there are facts giving rise to a reasonable, articulable suspicion” that 

the number “is associated with” a terrorist organization identified in the FISA court’s 

orders.60

The requirement that analysts have “reasonable articulable suspicion” before 

searching the database with a particular number is often referred to as the “RAS” standard. 

It is designed in part “to prevent any general browsing of data.”61 Government lawyers 

have characterized this standard as “the cornerstone minimization procedure” that 

“ensures the overall reasonableness” of the program.62

 

55 See Shea Decl. ¶ 8.

56 Primary Order at 6.

57 As described below, however, different standards govern how NSA analysts may access and analyze 

the results of these searches.

58 Primary Order at 6.

59 Primary Order at 7.

60 Primary Order at 7. NSA analysts may also perform queries of the calling records using numbers that 

are, at the time, the subject of electronic surveillance authorized by the FISA court, based on the court’s 

finding of probable cause to believe that the number is used by an agent of a specified terrorist organization. 

Primary Order at 9. Analysts may query only those numbers that have received an individual probable cause 

determination by the FISA court, not numbers that are being monitored with FISA court approval pursuant 

the broader authorities conferred by Sections 702, 703, or 704 of the FISA Amendments Act. Id. at 9-10.

61 Shea Decl. ¶ 20.

62 Report of the United States at 23, In re Application of the Federal Bureau of Investigation for an Order 

Requiring the Production of Tangible Things, No. BR 09-09 (FISA Ct. Aug. 17, 2009). 
28

The FISA court orders approving the Section 215 program do not explain what it 

means for a selection term, like a telephone number, to be “associated with” a designated 

terrorist organization. The NSA has developed internal criteria to implement this standard, 

however. To take a simple example illustrating one of these criteria, intelligence reports 

might indicate that a particular person has communicated by email with a known terrorism 

suspect in furtherance of terrorist activity. Other intelligence reports might provide a 

telephone number believed to be used by that person. Together, these pieces of 

information would provide reasonable articulable suspicion that the telephone number is 

associated with terrorism. 

If a telephone number or other selection term is “reasonably believed” to be used by 

a U.S. person, the FISA court’s orders specify that it may not be regarded as associated with 

a terrorist organization solely “on the basis of activities that are protected by the First 

Amendment to the Constitution.”63 In implementing this requirement, the NSA presumes 

that, absent information to the contrary, any U.S. telephone number is used by a U.S. 

person. Because this restriction prohibits the NSA only from using First Amendment–

protected activity as the sole basis for regarding a number as associated with terrorism, the 

agency may consider activities such as participating a public rally, attending a particular 

place of worship, expressing political views on the Internet, or buying a particular book —

as long as those activities are not the exclusive basis for the agency’s assessment.

The information on which the NSA’s RAS determinations are based comes from 

several sources, including other federal agencies. In some instances, other agencies 

specifically request that the NSA conduct analysis of particular telephone numbers.64

After a selection term has been approved for use as a “seed” — based on a 

determination that it is reasonably suspected of being associated with a specified terrorist 

organization — that approval is effective for one year, meaning that repeated queries using 

that seed can be made for the next year. Approval lasts only six months, however, if the 

term is reasonably believed to be used by a U.S. person.65

C. How Queries Are Conducted and What They Produce

There are two methods through which the NSA is permitted to “query” the Section 

215 calling records for analytic purposes with approved selection terms. 

The first method is a manual process performed by individual analysts. In a “manual 

analyst query,” an individual analyst working at a computer terminal personally enters an 

approved seed term into the agency’s database software. The software searches the 

 

63 Primary Order at 9.

64 See, e.g., Holley Decl. ¶ 16 (referring to information requests by the FBI).

65 Primary Order at 10.
29

records obtained by the agency under Section 215 and returns those records that are 

within one “hop” of the seed (i.e., all of the telephone numbers directly in contact with the 

seed). The analyst may then review the telephone numbers found to be in contact with a 

first-hop number (i.e., within two hops of the seed) and the telephone numbers found to be 

in contact with a second-hop number (i.e., within three hops of the seed).66

If analysts try to look beyond the third hop of a query, or to perform a query of a 

selection term that has not been RAS approved, the NSA’s software is designed to prevent 

the action from being completed.67

The results gathered by the NSA’s software show the web of telephone connections 

emanating outward from the seed, up to three links away from it. For every connection that 

is represented in these links, the software provides the associated information about the 

telephone calls involved, such as their date, time of day, and duration.

An analyst’s query, therefore, provides access to more than the calling records of a 

seed number that is reasonably suspected being associated with terrorism. The query also 

gives the analyst access to the complete calling records of every number that has been in 

direct contact with the seed number. It further gives the analyst access to the complete 

calling records of every number that has been in contact with one of those numbers. To put 

it another way, an analyst who performs a query of a suspected number is able to view the 

records of calls involving telephone numbers that had contact with a telephone number 

that had contact with another telephone number that had contact with the original target.

If a seed number has seventy-five direct contacts, for instance, and each of these 

first-hop contact has seventy-five new contacts of its own, then each query would provide 

the government with the complete calling records of 5,625 telephone numbers. And if each 

of those second-hop numbers has seventy-five new contacts of its own, a single query 

would result in a batch of calling records involving over 420,000 telephone numbers.

Calling records that fall within the results of a query are not deleted after five years. 

The results can be stored by the analyst who performed the query and may then be 

analyzed for intelligence purposes and shared with others, inside and outside the NSA, 

under rules described below. The results may be searched using terms that are not RASapproved, subjected to other analytic methods or techniques besides querying, or 

integrated with records obtained by the NSA under other authorities.

 

66 See Shea Decl. ¶ 22.

67 The NSA is directed by the FISA court to “ensure, through adequate and appropriate technical and 

management controls, that queries of the BR metadata for intelligence analysis purposes will be initiated 

using only a selection term that has been RAS-approved.” Primary Order at 6-7. NSA’s technical controls are 

designed to preclude any query for intelligence analysis purposes using a seed that lacks RAS approval.
30

In 2012, the FISA court approved a new and automated method of performing 

queries, one that is associated with a new infrastructure implemented by the NSA to 

process its calling records.68 The essence of this new process is that, instead of waiting for 

individual analysts to perform manual queries of particular selection terms that have been 

RAS approved, the NSA’s database periodically performs queries on all RAS-approved seed 

terms, up to three hops away from the approved seeds. The database places the results of 

these queries together in a repository called the “corporate store.” 

The ultimate result of the automated query process is a repository, the corporate 

store, containing the records of all telephone calls that are within three “hops” of every 

currently approved selection term.69 Authorized analysts looking to conduct intelligence 

analysis may then use the records in the corporate store, instead of searching the full 

repository of records.70

According to the FISA court’s orders, records that have been moved into the 

corporate store may be searched by authorized personnel “for valid foreign intelligence 

purposes, without the requirement that those searches use only RAS-approved selection 

terms.”71 Analysts therefore can query the records in the corporate store with terms that 

are not reasonably suspected of association with terrorism. They also are permitted to 

analyze records in the corporate store through means other than individual contactchaining queries that begin with a single selection term: because the records in the 

corporate store all stem from RAS-approved queries, the agency is allowed to apply other 

analytic methods and techniques to the query results.72 For instance, such calling records 

may be integrated with data acquired under other authorities for further analysis. The FISA 

court’s orders expressly state that the NSA may apply “the full range” of signals intelligence 

analytic tradecraft to the calling records that are responsive to a query, which includes

every record in the corporate store.73

If the NSA queries around 300 seed numbers a year, as it did in 2012, then based on 

the estimates provided earlier about the number of records produced in response to a 

 

68 This “automated query process” was first approved for use by the FISA court in late 2012. Primary 

Order at 11 n.11. 

69 See Primary Order at 11.

70 Under the manual query process, by contrast, analysts access the main collection repository, which 

contains all telephone records obtained under Section 215, but software controls are designed to prevent 

analysts from viewing records not linked to an RAS-approved number.

71 Primary Order at 11.

72 See Primary Order at 13 n.15.

73 Primary Order at 13 n.15.
31

single query, the corporate store would contain records involving over 120 million 

telephone numbers.74

The FISA court’s orders call for audit capability with respect to all queries of the call 

detail records.75 This requirement of an auditable record does not apply, however, “to the 

results of RAS-approved queries.”76 Therefore, when analysts access records that have 

turned up within three hops of a selection term — whether through a manual analyst query 

or by searching the corporate store — the court’s orders do not impose a requirement that 

their actions be recorded or subject to audit, though other rules governing the NSA may 

impose this requirement.

VI. What the NSA Does with Information Obtained from the Telephone Records

By analyzing telephone calling records obtained under Section 215, the NSA seeks to 

identify counterterrorism information that is of investigative value to other intelligence 

and law enforcement agencies such as the FBI.77 Such information could indicate that there 

have been communications between known or suspected terrorist operatives overseas and 

persons within the United States, or among suspects within the United States, which could 

assist in detecting people in the United States who may be acting in furtherance of a foreign 

terrorist organization.78

Information obtained by NSA analysts through querying the calling records — the 

telephone connections, the associated details of each telephone call identified, and other 

intelligence gleaned derived from these sources — may be shared for intelligence purposes 

among NSA analysts who have received “appropriate and adequate training and guidance 

regarding the procedures and restrictions for the handling and dissemination of such 

information,” according to the FISA court.79

Once the NSA has identified information believed to have potential 

counterterrorism value, it passes that information on to other federal agencies, including 

the FBI. Before the NSA may share information it obtains from the calling records outside 

 

74 While fewer than 300 identifiers were used to query the call detail records in 2012, that number “has 

varied over the years.” Shea Decl. ¶ 24.

75 See Primary Order at 7 (“Whenever the BR metadata is accessed for foreign intelligence analysis 

purposes or using foreign intelligence analysis query tools, an auditable record of the activity shall be 

generated.”).

76 Primary Order at 7 n.6.

77 Shea Decl. ¶ 26.

78 Shea Decl. ¶¶ 16, 28.

79 Primary Order at 12-13.
32

the agency, it must apply to that information the minimization procedures of Section 7 of 

United States Signals Intelligence Directive SP0018 (“USSID 18”), which prescribes rules for 

the dissemination of information about U.S. persons in order to ensure that the NSA’s 

activities are conducted consistent with law and the Fourth Amendment to the 

Constitution.80

Additionally, before the NSA may disseminate any “U.S. person information” outside 

the agency, one of five designated high-level NSA officials must determine that the 

information “is in fact related to counterterrorism information” and that it “is necessary to 

understand the counterterrorism information or assess its importance.”81

The FBI can use the information it receives from the NSA to guide its investigations 

into terrorist operatives and threats inside the United States. When the FBI receives 

information that was obtained through Section 215, the Bureau is ordered by the FISA 

court to follow the minimization procedures set forth in the Attorney General’s Guidelines 

for Domestic FBI Operations (Sept. 29, 2008).82

Other federal agencies also receive information from the NSA that was obtained 

through Section 215, but the FISA court’s orders do not establish rules for how those 

agencies must handle the information they receive.83 In addition, the government has 

informed the FISA court that it may provide telephone numbers derived from the program 

to “appropriate . . . foreign government agencies.”84

The NSA tracks the number of reports it provides to other agencies and the number 

of telephone numbers identified as investigative leads in those reports. During the first 

three years in which the telephone records program was authorized by the FISA court 

(between May 2006 and May 2009), the NSA “provided to the FBI and/or other intelligence 

 

80 Primary Order at 13; see United States Signals Intelligence Directive SP0018 (Jan. 25, 2011), available 

at http://icontherecord.tumblr.com/.

81 Primary Order at 13. The agency also may share such information with “Executive Branch personnel” 

for specific oversight purposes, namely in order to (1) permit those personnel “to determine whether the 

information contains exculpatory or impeachment information or is otherwise discoverable in legal 

proceedings,” or (2) permit those personnel “to facilitate their lawful oversight functions.” Id. at 13-14.

82 See Primary Order at 4.

83 See Primary Order; see also Shea Decl. ¶ 26 (reporting that the agency analyzes the call detail records 

to find information that would be of investigative value to the FBI “or other intelligence agencies”). The text of 

Section 215 appears to require that all federal officers and employees who receive information acquired from 

the calling records adhere to the Attorney General’s guidelines, see 50 U.S.C. § 1861(h), but such a 

requirement is not explicit in the FISA court’s orders.

84 See Memorandum of Law in Support of Application for Certain Tangible Things for Investigations to 

Protect Against International Terrorism, at 15, In re Application of the Federal Bureau of Investigation for an 

Order Requiring the Production of Tangible Things, No. BR 06-05 (FISA Ct. May 23, 2006).
33

agencies a total of 277 reports containing approximately 2,900 telephone identifiers that 

the NSA had identified.”85

VII. Internal Oversight and Reporting to the FISA Court

Monitoring of the NSA’s compliance with the FISA court’s orders is undertaken by 

the NSA and the National Security Division of the Department of Justice, which periodically 

must report certain information to the court. The details of these oversight requirements 

are set forth below.

First, the NSA must enforce rules on which of its personnel have access to the calling 

records and information extracted from the calling records. Both groups of personnel must 

receive training tailored to their respective privileges. Specifically, the NSA’s Office of 

General Counsel and its Office of the Director of Compliance are ordered to “ensure that 

personnel with access to the BR metadata receive appropriate and adequate training and 

guidance regarding the procedures and restrictions for collection, storage, analysis, 

dissemination, and retention of the BR metadata and the results of queries of the BR 

metadata.”86 Those two offices “shall further ensure that all NSA personnel who receive 

query results in any form first receive appropriate and adequate training and guidance 

regarding the procedures and restrictions for the handling and dissemination of such 

information.”87 The NSA is directed to maintain records of all such training and to provide 

the Justice Department (“DOJ”) with copies of “all formal briefing and/or training 

materials” used to “brief/train NSA personnel.”88

Second, the NSA must take certain steps to ensure the effectiveness of the measures 

it has put in place to limit access to the calling records. Specifically, the agency’s Office of 

the Director of Compliance is tasked with monitoring the software and other technical 

controls that restrict the work of NSA personnel, as well as the agency’s logging, for 

auditing purposes, of instances in which personnel access the records.89

Third, the NSA must cooperate with the DOJ regarding how it interprets and 

implements the FISA court’s orders authorizing the program. Specifically, the NSA’s Office 

 

85 Shea Decl. ¶ 26.

86 Primary Order at 14. The government uses the term “BR metadata” to refer to the business records 

metadata acquired under the Section 215 program.

87 Primary Order at 14.

88 Primary Order at 14-15. The FISA court’s orders do not specify what this training must consist of, 

stating instead that “[t]he nature of the training that is appropriate and adequate for a particular person will 

depend on the person’s responsibilities and the circumstances of his access to the BR metadata or the results 

from any queries of the metadata.” Id. at 14 n.17. 

89 Primary Order at 15.
34

of General Counsel is to consult with the Department of Justice on “all significant legal 

opinions that relate to the interpretation, scope, and/or implementation” of the program. 90

At least once during every ninety-day authorization period, NSA and DOJ representatives 

are required to meet “for the purpose of assessing compliance” with the FISA court’s 

orders, including “a review of NSA’s monitoring and assessment to ensure that only 

approved metadata is being acquired.” The results of this meeting must be put in writing 

and submitted to the FISA court as part of any request to renew or reinstate authority for 

the program.91 During every authorization period, DOJ personnel also must meet with the 

inspector general of the NSA “to discuss their respective oversight responsibilities and 

assess NSA’s compliance with the Court’s orders.”92 And at least once during each 

authorization period, officials from the DOJ and the NSA’s Office of General Counsel must 

review a sample of the justifications that were used by the NSA to approve the querying of 

particular telephone numbers within the database of calling records.93

Fourth, during each ninety-day period for which the program is authorized by the 

FISA court, the government must file monthly reports with the court on its execution of the 

program. Approximately every thirty days, the NSA must submit a report that “includes a 

discussion” of the agency’s application of the RAS standard and its implementation of the 

new automated query process.94 Each report also must state the number of instances since 

the last report “in which NSA has shared, in any form, results from queries of the BR 

metadata that contain U.S. person information, in any form, with anyone outside NSA.”95

For every instance in which information about a U.S. person was shared in this manner, the 

report must include an attestation that one of the officials authorized to approve such 

disseminations determined, in advance, “that the information was related to 

counterterrorism information and necessary to understand counterterrorism information 

or to assess its importance.”96 In practice, these monthly reports typically provide (1) a 

short description of some of the considerations that go into the agency’s RAS 

determinations, (2) the number of selection terms currently approved for querying the 

database, (3) a paragraph describing a single example of an RAS determination made 

during the previous month, and (4) a list of the instances during the prior month in which 

information extracted from the calling records was shared with other agencies (including 

 

90 Primary Order at 15.

91 Primary Order at 15.

92 Primary Order at 15.

93 Primary Order at 16.

94 Primary Order at 16.

95 Primary Order at 16.

96 Primary Order at 16-17.
35

the date and recipients of the dissemination and the required attestation about the need to 

share such information). NSA officials sign the reports under penalty of perjury.

97

The NSA has implemented an extensive array of internal procedures designed to 

ensure that its actions comply with the rules described above.

VIII. Congressional Reporting Requirements

In addition to the reporting obligations contained in the FISA court’s orders, which 

require that designated information periodically be supplied to the court, the FISA statute 

requires the executive branch to report particular matters to the intelligence and judiciary 

committees in Congress. Certain developments in the NSA’s Section 215 program, including 

changes proposed by the government or approved by the FISA court, would trigger these 

reporting requirements. 

The executive branch must provide four congressional committees with significant 

orders and opinions of the FISA court and information about the ramifications of the FISA 

court’s orders. Specifically, twice a year, the Attorney General is required to submit to the 

House and Senate intelligence and judiciary committees “a summary of significant legal 

interpretations” of FISA involving matters before the FISA court or its companion appellate 

court, the Foreign Intelligence Surveillance Court of Review, “including interpretations 

presented in applications or pleadings” filed with those courts.98 This summary must be 

accompanied by “copies of all decisions, orders, or opinions” of the two courts “that include 

significant construction or interpretation” of the provisions of FISA.99 For the preceding 

six-month period, the Attorney General’s report also must set forth the aggregate number 

of persons targeted for orders issued under FISA, including a breakdown of those targeted 

for access to records under Section 215.100

In addition, on an annual basis the Attorney General must “inform” the House and 

Senate intelligence committees and the Senate Judiciary Committee “concerning all 

requests” for the production of items under Section 215.101 The Attorney General must 

submit a report to the intelligence and judiciary committees setting forth, with respect to 

 

97 If the government seeks to renew its authority to collect calling records at the end of a ninety-day 

authorization period, it must include in its most recent thirty-day report “a description of any significant 

changes proposed in the way in which the call detail records would be received from the Providers and any 

significant changes to the controls NSA has in place to receive, store, process, and disseminate the BR 

metadata.” Primary Order at 16.

98 50 U.S.C. § 1871(a)(4).

99 50 U.S.C. § 1871(a)(5).

100 50 U.S.C. § 1871(a)(1)(D).

101 50 U.S.C. § 1862(a).
36

the previous calendar year, statistical information about the applications filed with the 

FISA court under Section 215 and the orders issued by the court granting, modifying, or 

denying such applications. 102 An unclassified report must also be provided to Congress 

containing a subset of this statistical information.103

 

102 50 U.S.C. § 1862(b).

103 50 U.S.C. § 1862(c).
37

Part 4:

HISTORY OF THE NSA SECTION 215 PROGRAM

I. The NSA’s Initiation of Bulk Telephone Records Collection Under the 

President’s Surveillance Program

The telephone records program that the NSA operates today under Section 215 of 

the Patriot Act evolved out of counterterrorism efforts that began shortly after the attacks 

of September 11, 2001. In October 2001, President George W. Bush issued a highly 

classified presidential authorization directing the NSA to collect certain foreign intelligence 

by electronic surveillance in order to prevent acts of terrorism within the United States, 

based upon a finding that an extraordinary emergency existed because of the September 11 

attacks. Under this authorization, electronic surveillance was permitted within the United 

States for counterterrorism purposes without judicial warrants or court orders for a 

limited number of days.104 President Bush authorized the NSA to: (1) collect the contents

of certain international communications, a program that was later referred to as the 

Terrorist Surveillance Program (“TSP”), and (2) collect in bulk non-content information, or 

“metadata,” about telephone and Internet communications.

105

The President renewed the authorization for the NSA’s activities in early November 

2001. Thereafter, the authorization was renewed continuously, with some modifications in 

the scope of the authorized collection, approximately every thirty to sixty days until 2007. 

Each presidential authorization included the finding that an extraordinary emergency 

continued to exist justifying ongoing warrantless surveillance. Key members of Congress 

and the presiding judge of the Foreign Intelligence Surveillance Court were briefed on the 

existence of the program. The collection of communications content and bulk metadata 

under these presidential authorizations became known as the President’s Surveillance

Program. According to a 2009 report by the inspectors general of several defense and 

intelligence agencies, over time, “the program became less a temporary response to the 

September 11 terrorist attacks and more a permanent surveillance tool.”106

 

104 See DNI Announces the Declassification of the Existence of Collection Activities Authorized by 

President George W. Bush Shortly After the Attacks of September 11, 2001 (Dec. 21, 2013), 

http://icontherecord.tumblr.com/.

105 See id. With respect to telephone communications, metadata includes information about the 

participating telephone numbers and the date, time, and duration of a call. With respect to Internet 

communications, metadata includes, among other things, addressing information that helps route a message 

to the proper destination, such as the “to” and “from” lines attached to an email.

106 See Unclassified Report on the President’s Surveillance Program, prepared by the Office of Inspectors 

General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security 

Agency, and Office of the Director of National Intelligence, at 31 (July 10, 2009) (“OIGs Rpt.”). 
38

II. Reassessment of Legal Basis for President’s Surveillance Program

In 2003, the Office of Legal Counsel in the Department of Justice (“OLC”) began a 

comprehensive reassessment of the legal basis for the President’s Surveillance Program. 

The OLC conducted a new legal analysis that supported much of the program authorized by 

the President, but it became concerned that this revised analysis would not be sufficient to 

support the legality of certain aspects of the program.107 After extensive debate within the 

Administration, in March 2004 the President decided to modify certain intelligencegathering activities under the program, discontinuing the bulk collection of Internet 

metadata.

108

III. Transition of Internet Metadata Collection to FISA Court Authority

The Foreign Intelligence Surveillance Act of 1978 (“FISA”) created, for the first time, 

a legislative structure governing executive branch efforts to conduct surveillance within 

the United States to obtain foreign intelligence. The Act established a special court, 

comprised of sitting federal judges, to review and grant or deny applications made by the 

executive branch to conduct electronic surveillance for foreign intelligence purposes — the 

Foreign Intelligence Surveillance Court (“FISC” or “FISA court”).109

One of FISA’s provisions allows the government to seek permission from the FISA 

court to monitor communications by installing a “pen register” or “trap and trace device” to 

capture information sent from a communications instrument or facility.110 A pen register 

records the “dialing, routing, addressing, or signaling information” transmitted through 

wire or electronic communication, but does not capture the contents of communications.111

Early versions of pen registers simply recorded the numbers dialed from a telephone, but 

later developments allowed the devices to capture information such as the “to” line in an 

email. A “trap and trace device” records information about incoming telephone calls or 

other electronic communications. 112 Sometimes combined in a single instrument, pen 

registers and trap and trace devices are often referred to as pen/trap or PR/TT devices.

 

107 OIGs Rpt. at 20. 

108 See OIGs Rpt. at 29; DNI Announces the Declassification of the Existence of Collection Activities 

Authorized by President George W. Bush Shortly After the Attacks of September 11, 2001 (Dec. 21, 2013), 

http://icontherecord.tumblr.com/.

109 See Part 8 of this Report for a discussion of the FISA court and its operations.

110 See 50 U.S.C. § 1842.

111 18 U.S.C. § 3127(3).

112 18 U.S.C. § 3127(4).
39

In 2004, the Administration sought FISA court approval for NSA to collect large 

amounts of Internet metadata in bulk under FISA’s pen/trap provisions. Judge KollarKotelly granted the government’s application in July 2004.113 Her order approved the 

government’s request while requiring the government to comply with certain additional 

restrictions and procedures.114 As proposed by the government, Judge Kollar-Kotelly’s 

order permitted Internet metadata to be acquired only if it travelled through certain 

designated communications channels that were relatively likely to contain messages of 

counterterrorism interest, “in order to build a meta data archive that will be, in relative 

terms, richly populated” with terrorism-related communications.115

Once in the possession of the NSA, the Internet metadata collected under the FISA 

court’s order could be accessed by NSA personnel only through queries targeting particular 

Internet accounts or addresses, and only after the NSA concluded there was a “reasonable 

articulable suspicion” that the account or address was “associated with” a target.116 The 

NSA was permitted to employ only the specific analytical methods described in the court’s 

opinion. Under these rules, it could engage in “contact chaining” to identify Internet users 

directly in contact with a target account or address, or directly in contact with a user who 

was directly in contact with the target. In other words, the agency could search for Internet 

users who were up to two steps removed from a target.

117

Judge Kollar-Kotelly issued a lengthy opinion with her order approving the Internet 

metadata program, discussing the statutory and constitutional issues raised by the 

government’s request and the “exceptionally broad form of collection” it entailed.118 The 

opinion concluded that the Internet metadata to be obtained by the government was 

“relevant to an ongoing investigation,” as required by the statute, “even though only a very 

small percentage of the information obtained” would be “directly relevant to such an 

investigation.” This was so, the opinion said, because large-scale collection was “necessary 

to identify the much smaller number” of terrorism-related communications.119

Emphasizing that “senior responsible officials, whose judgment on these matters is entitled 

to deference, have . . . also explained why they seek to collect the particular meta data . . . 

 

113 See Opinion and Order, No. PR/TT [redacted] (FISA Ct.) (“PR/TT Op.”).

114 See PR/TT Op. at 84-85. 

115 PR/TT Op. at 47.

116 PR/TT Op. at 83.

117 PR/TT Op. at 42-45. See pages 26 to 31 of this Report for an explanation of contact chaining within 

the context of telephone metadata analysis.

118 PR/TT Op. at 23.

119 PR/TT Op. at 47-49.
40

identified in the application,” the opinion stated: “Based on these explanations, the 

proposed collection appears to be a reasonably effective means to this end.”120

After several years of operation, which included significant incidents of 

noncompliance with the FISA court’s orders, the bulk collection of Internet metadata under 

FISA court approval was terminated. Upon concluding that the program’s value was 

limited, the NSA did not seek to renew it. The government’s successful transition of this 

collection authority from the President’s Surveillance Program to the FISA court, however, 

served as a model for a similar transition in the NSA’s bulk collection of telephone records. 

IV. Transition of Telephone Records Collection to FISA Court Authority

In December 2005, the New York Times published articles revealing the portion of 

the President’s Surveillance Program that involved intercepting the contents of 

international emails and telephone calls. This article caused concern for the telephone 

companies that were providing records under the program. Although their concerns about 

the interception of communications content were somewhat assuaged by the issuance of a 

Department of Justice “white paper” outlining the legal argument in favor of those 

interceptions, the companies remained concerned about providing telephone metadata 

(calling records) to the government. The New York Times had not revealed that aspect of 

the program, but reporters at USA Today were investigating it in early 2006. As a result, the 

government began to explore options for obtaining an order issued by the FISA court 

compelling assistance with the collection of telephone metadata, similar to the orders 

compelling assistance with the Internet metadata program. Ultimately, in May 2006 the 

government moved to transition the telephone records program from the President’s 

Surveillance Program to a section of FISA known as the “business records” provision. 

FISA’s business records provision was first enacted in 1998.121 Titled “Access to 

certain business records for foreign intelligence and international terrorism 

investigations,” the provision originally permitted the FBI to apply to the FISA court for an 

order requiring a business “to release records in its possession for an investigation to 

gather foreign intelligence information or an investigation concerning international 

terrorism.”122 The FISA court could issue such orders to only four types of businesses: “a 

common carrier, public accommodation facility, physical storage facility, or vehicle rental 

facility.”123 Any application for such an order was required to attest that there were 

 

120 PR/TT Op. at 53-54.

121 See Pub. L. No. 105-272, § 602, 112 Stat. 2396, 2410-12 (Oct. 20, 1998).

122 50 U.S.C. § 1862(a) (2000).

123 50 U.S.C. § 1862(a) (2000).
41

“specific and articulable facts giving reason to believe that the person to whom the records 

pertain is a foreign power or an agent of a foreign power.”124

The Patriot Act, passed in 2001, significantly extended the reach of FISA’s business 

records provision.125 Section 215 of the Patriot Act made two fundamental changes to the 

law. First, the FBI was no longer limited to seeking records from common carriers, public 

accommodation facilities, physical storage facilities, or vehicle rental facilities. Instead, the 

FBI could apply to the FISA court for an order requiring the production of “any tangible 

things (including books, records, papers, documents, and other items) for an investigation 

to protect against international terrorism.”126 Second, the FBI no longer needed to 

demonstrate “specific and articulable facts” showing that a person to whom the records 

pertained was a foreign power or an agent of a foreign power. Instead, the FBI only needed 

to specify that the records concerned were being sought “for an authorized investigation” 

conducted under guidelines approved by the Attorney General.127

Section 215 became one of the most controversial features of the Patriot Act, 

criticized by some lawmakers and others for the potentially wide scope of the recordgathering it authorized, as well as for its nondisclosure provision, which prevented 

recipients of an order from telling anyone about the order. It was one of several Patriot Act 

provisions that were not made permanent by the Act but were set to expire in 2005 (later 

extended to 2006). 

Beginning in 2005, numerous bills were introduced in Congress to reauthorize 

Section 215 and the other “sunsetting” provisions of the Patriot Act, while making certain 

changes to those provisions. Congressional debate over these competing proposals 

extended into the spring of 2006. Thus, legislative debate about the reauthorization of 

Section 215, including proposals to limit its scope and impose additional safeguards, was 

occurring at the same time that executive branch lawyers were formulating a strategy to 

use that statute as the legal basis for the NSA’s bulk telephone records collection. The 

collection of telephone records under the President’s Surveillance Program was classified, 

however, and the government’s plans to seek new legal authority for that collection were 

not made public. Thus, congressional debates about the terms on which Section 215 should 

be renewed included no public discussion of the fact that the executive branch was 

planning to place the NSA’s bulk calling records program under the auspices of the 

reauthorized statute.

 

124 50 U.S.C. § 1862(b)(2)(B) (2000).

125 See Pub. L. No. 107-56, § 215, 115 Stat. 272, 287 (2001).

126 50 U.S.C. § 1861(a)(1) (2002).

127 50 U.S.C. § 1861(b)(2) (2002).
42

In March 2006, the President signed the USA PATRIOT Improvement and 

Reauthorization Act of 2005, which made a number of changes to the business records 

provision of FISA (by then commonly referred to as Section 215).128 Among other changes, 

the new law required that before granting a business records application, FISA court judges 

had to determine that the records being sought were likely “relevant” to an FBI 

investigation. Specifically, the law now demanded that each application contain “a 

statement of facts showing that there are reasonable grounds to believe that the tangible 

things sought are relevant to an authorized investigation (other than a threat 

assessment).”129

The new law made other modifications to Section 215 as well. One such change 

explicitly limited the items that could be obtained under the statute to those that were 

obtainable through grand jury subpoenas, administrative subpoenas, or court orders.130

Certain proposals to restrict the scope of Section 215 even further were rejected.

By May 2006, Congress had renewed Section 215, and government lawyers were 

finalizing their application to the FISA court seeking permission to conduct the NSA’s 

telephone records program under the auspices of the amended statute. 

The government’s application, filed in May 2006, requested an order directing 

certain U.S. telephone companies to provide the NSA with call detail records created by 

those companies. It requested that the companies be ordered to produce these records “on 

an ongoing daily basis to the extent practicable for a period of ninety days.” In other words, 

the application sought to put the companies under a continuing obligation, for a period of 

ninety days, to provide the NSA with all of their newly created calling records on a daily 

basis, rather than direct the companies to turn over records already in their possession at 

the time an order was served on them. The government sought telephone records so that 

the NSA could analyze them and disseminate intelligence from those records to “the FBI, 

CIA, or other appropriate U.S. Government and foreign government agencies.”131

The government’s application included a proposed set of rules for NSA’s handling, 

analysis, and dissemination of the calling records it received.132 The application and its 

 

128 See Pub. L. No. 109-177, 120 Stat. 192 (2006).

129 50 U.S.C. § 1861(b)(2)(A); see id. § 1861(c)(1) (requiring FISA court judge to find that an application 

meets this requirement before entering an order).

130 See 50 U.S.C. § 1861(c)(2)(D) (stating that an order issued under Section 215 “may only require the 

production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of 

the United States in aid of a grand jury investigation or with any other order issued by a court of the United 

States directing the production of records or tangible things”).

131 Memorandum of Law in Support of Application for Certain Tangible Things for Investigations to 

Protect Against International Terrorism, at 15, In re Application of the Federal Bureau of Investigation for an 

Order Requiring the Production of Tangible Things, No. BR 06-05 (FISA Ct. May 23, 2006) (“2006 Mem.”).

132 See 2006 Mem. at 21-22.
43

supporting memorandum of law explained that the telephone records were being sought 

“by the FBI on behalf of NSA” so that the NSA could use metadata analysis “to identify and 

find operatives” of terrorist organizations. The application was supported by two 

declarations: one from NSA Director Lieutenant General Keith Alexander, describing the 

requested calling records and how the NSA would treat them, and one from National 

Counterterrorism Center Director Vice Admiral John Scott Redd, describing the threat to 

the United States posed by Al Qaeda. 

The government’s memorandum of law argued, among other things, that the 

application was “completely consistent with this Court’s ground breaking and innovative 

decision” that had approved the collection of “bulk e-mail metadata” under FISA’s pen 

register provision.133 The memorandum extensively cited that 2004 decision in discussing 

one of the key statutory prerequisites of FISA’s business records section — the 

requirement that any records sought be “relevant” to an authorized FBI investigation. 

As noted above, Section 215 requires any application to include “a statement of facts 

showing that there are reasonable grounds to believe” that the records sought “are relevant 

to an authorized investigation” conducted in accordance with certain criteria.134 To show 

that this requirement was met, the government argued: “All of the business records to be 

collected here are relevant to FBI investigations . . . because the NSA can effectively conduct 

metadata analysis only if it has the data in bulk.”135 Echoing the arguments made in its 

2004 Internet metadata application, the government stated that “although investigators do 

not know exactly where the terrorists’ communications are hiding in the billions of 

telephone calls flowing through the United States today, we do know that they are there, 

and if we archive the data now, we will be able to use it in a targeted way to find the 

terrorists tomorrow.”136

The government’s legal memorandum relied heavily on the FISA court’s 2004 

decision approving the NSA’s bulk Internet metadata program, arguing that the 

interpretation of the word “relevant” in Section 215 should incorporate “deference . . . to 

the fully considered judgment of the executive branch in assessing and responding to 

national security threats and in determining the potential significance of intelligencerelated information.”137 It further argued that the statute “does not expressly impose any 

requirement to tailor a request for tangible things precisely to obtain solely records that 

 

133 2006 Mem. at 3.

134 50 U.S.C. § 1861(b)(2)(A).

135 2006 Mem. at 2.

136 2006 Mem. at 8 (emphasis in original).

137 2006 Mem. at 16-17.
44

are strictly relevant to the investigation.”138 Even if it did, the memorandum argued, to 

interpret the word “relevant” in the statute it was “appropriate to use as a guideline the 

Supreme Court’s ‘special needs’ jurisprudence, which balances any intrusion into privacy 

against the government interest at stake to determine whether a warrant or individualized 

suspicion is required.”139 In sum, the government argued: “Just as the bulk collection of 

e-mail metadata was relevant to FBI investigations . . . so is the bulk collection of telephony 

metadata described herein.”140

While acknowledging that its request would result in the collection of a “substantial 

portion” of call detail records that “would not relate to [terrorist] operatives,” the 

government argued that the records as a whole were nevertheless relevant because “the 

intelligence tool that the Government hopes to use to find [terrorist] communications —

metadata analysis — requires collection and storing large volumes of the metadata to 

enable later analysis.”141 “All of the metadata collected is thus relevant,” the government 

concluded, “because the success of this investigative tool depends on bulk collection.”142

The government’s application requested that during the analysis of calling records, 

contact chaining should be permitted to extend up to three “hops” from a seed number —

instead of the two hops permitted in the Internet metadata program. In explanation for this 

difference, the supporting legal memorandum stated: “Going out to the third tier is useful 

for telephony because, unlike e-mail traffic, which includes the heavy use of ‘spam,’ a 

telephonic device does not lend itself to simultaneous contact with large numbers of 

individuals.”143

Although the memorandum’s discussion of the “relevance” requirement in Section 

215’s relied heavily on the FISC’s earlier opinion approving the bulk collection of Internet 

metadata, the memorandum did not discuss whether that comparison was affected by 

differences between the telephone and Internet metadata collection programs. As noted 

earlier, under the Internet program records were acquired only if they travelled through 

certain designated communications channels that were relatively likely to contain 

messages of counterterrorism interest — to build a metadata archive that would be, in 

relative terms, “richly populated” with terrorism-related communications.144

 

138 2006 Mem. at 17.

139 2006 Mem. at 18 (citing Board of Educ. v. Earls, 536 U.S. 822, 829 (2002).

140 2006 Mem. at 17.

141 2006 Mem. at 15.

142 2006 Mem. at 15.

143 2006 Mem. at 9.

144 PR/TT Op. at 47. 
45

The memorandum also did not discuss whether Section 215 permits the court to 

prospectively order a company to turn over new records as they are created, on a daily 

basis, for a set period of time. (The Internet metadata program was conducted under the 

authority of FISA’s pen/trap provision, which is designed to authorize the prospective

collection of communications metadata.) The memorandum neither identified any portion 

of Section 215 that authorized such a procedure nor discussed whether any language in the 

statute foreclosed it.

While the government’s application requested that the telephone companies be 

ordered to provide their records to the NSA, its memorandum did not discuss the fact that 

Section 215 states that records obtained under its authority are to be “made available to,” 

“obtained” by, and “received by” the FBI.145

The government’s application also did not discuss whether any legal impediment to 

its application was presented by the Electronic Communications Privacy Act (“ECPA”). That 

act makes it unlawful for a telephone company to share records about its customers with 

the government, except in response to certain designated circumstances. Those 

enumerated circumstances do not include the issuance of an order from the FISA court 

under Section 215.146

On May 24, 2006, FISA court Judge Malcolm J. Howard signed an order approving 

the government’s application.147 The order was not accompanied by an opinion explaining 

the decision to grant the application. Judge Howard’s ten-page order recited the specific 

findings called for by Section 215 and stated that the government’s application satisfied 

those statutory requirements.148 Much of the order was devoted to listing restrictions on 

the NSA’s maintenance and use of the calling records it would receive.149 In accordance 

with the conditions proposed by the government, a number of such rules were imposed. 

These rules were similar to, though less comprehensive than, the rules that govern the 

program today, and they included the requirement that Section 215 records could be 

 

145 See 50 U.S.C. § 1861(b)(2)(B), (d)(1), (d)(2)(B), (g)(1), (h). Similarly, while the memorandum 

explained the minimization procedures that the NSA would apply to the calling records it obtained under the 

proposed order, it did not discuss the statutory requirement that its application include “an enumeration of 

the minimization procedures adopted by the Attorney General . . . that are applicable to the retention and 

dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal 

Bureau of Investigation based on the order requested in such application.” 50 U.S.C. § 1861(b)(2)(B) 

(emphasis added).

146 See 18 U.S.C. §§ 2702, 2703. The government brought this issue to the FISA court’s attention in late 

2008.

147 See Order at 10, In re Application of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things, No. BR 06-05 (FISA Ct. May 24, 2006) (“2006 Order”).

148 See 2006 Order at 3.

149 See 2006 Order at 4-10.
46

searched only with selections terms for which there already was “reasonable, articulable 

suspicion” of a connection with terrorism.150

The May 2006 order directed that each telephone company produce its call detail 

records to the NSA, “and continue production on an ongoing daily basis thereafter for the 

duration of th[e] order.”151

The court’s order expired approximately ninety days after issuance. At the end of 

that period, it was renewed for a similar amount of time. Since May 2006, the court has 

continuously renewed its authorization of the NSA’s telephone records program 

approximately every ninety days.

Under the authority granted by the FISA court pursuant to Section 215, the NSA was 

able to collect the same telephone calling records it had previously obtained through the 

President’s Surveillance Program. No break in collection was caused by the transition to 

FISA court authority.

V. NSA Violations of FISA Court Orders and Modifications to the Program

Between 2006 and 2009, the terms of the FISA court’s orders approving the NSA’s 

calling records program remained essentially unchanged. But a series of compliance issues 

brought to the attention of the FISA court in 2009 resulted in some modifications to the 

program.

 

150 Under the order, calling records obtained by the NSA were to be “stored and processed on a secure 

private network that NSA exclusively will operate,” and access to the records was to be limited by means of 

software to authorized analysts. 2006 Order at 5. Five years after collection by the NSA, the calling records 

had to be destroyed. Id. at 8. Echoing the rules previously imposed on the analysis of bulk Internet metadata, 

the order provided that the calling records could be accessed “only when NSA has identified a known 

telephone number for which, based on the factual and practical considerations of everyday life on which 

reasonable and prudent persons act, there are facts giving rise to a reasonable, articulable suspicion” that the 

telephone number is “associated with” specific terrorist organizations. Id. at 5. While the FISA court’s order 

did not explain what it meant for a telephone number to be “associated with” a terrorist organization, it 

provided that a telephone number believed to be used by a U.S. person could not be regarded as associated 

with terrorism solely on the basis of activities that are protected by the First Amendment to the Constitution. 

Id. Searches targeting particular telephone numbers could be approved by only seven NSA officials, and the 

agency’s Office of General Counsel was ordered to “review and approve proposed queries of archived 

metadata based on seed accounts numbers [sic] reasonably believed to be used by U.S. persons.” Id. at 6-7. 

Any use of the calling records for analysis, the order directed, “shall be strictly tailored to identifying terrorist 

communications and shall occur solely according to the procedures described in the application.” Id. at 6. The 

order required that every analyst’s access to the archived data be automatically logged for auditing capability. 

It also imposed rules for the dissemination outside the NSA of information identifying a U.S. person, and 

required the NSA to periodically review the program, including assessing the adequacy of the management 

controls for the processing and dissemination of U.S. person information. Id. at 6-9. See Part 3 of this Report 

for a description of the rules that presently govern the program.

151 2006 Order at 4.
47

A. Improper Searches of Records by Automated Systems

In January 2009, representatives from the DOJ attended an NSA briefing concerning 

the agency’s bulk telephone records program.152 This briefing, along with subsequent 

communication between the DOJ and the NSA, confirmed that the NSA was operating an 

automated searching system that utilized the telephone records obtained under FISA court 

approval in a manner contrary to the court’s orders.153

The NSA had developed and implemented a software system, called an “alert list,” 

that automatically scanned new telephone records obtained by the agency as those new 

records were input into the agency’s databases. The alert list system was set up to search 

telephone numbers that were obtained by the NSA through a number of means, including 

through the Section 215 orders. The alert list had been developed and implemented at a 

time when the NSA’s collection was undertaken pursuant to the President’s Surveillance 

Program, and thus before the FISA court’s rules on the use of the records were in place.154

The alert list contained thousands of telephone numbers that were of interest to 

NSA analysts. Most of these numbers had never been approved for use in querying the 

Section 215 calling records, because no determination had been made that those numbers 

satisfied the “reasonable, articulable suspicion” or “RAS” standard. As of January 2009, 

fewer than 2,000 of the nearly 18,000 numbers on the alert list were RAS-approved. But 

when newly obtained telephone records entered the NSA’s databases from any source —

including from the telephone companies providing records under Section 215 — the alert 

list automatically searched the incoming data to see if it contained records of any telephone 

calls that matched numbers on the alert list. If so, the system notified analysts of the match. 

According to a filing later submitted to the FISA court, NSA personnel “appear to have 

viewed the alert list process as merely a means of identifying a particular identifier on the 

alert list that might warrant further scrutiny,” which might then lead to a determination of 

whether analysis based on that number should take place. The alert list did not 

automatically create contact chains for the telephone numbers it identified that were not 

RAS-approved.155

Using the alert list system to search the telephone records obtained through Section 

215 violated the FISA court’s orders, which stated that analysts could not query those 

records except by searching the contacts of a selection term that had been given RAS 

 

152 Memorandum of the United States in Response to the Court’s Order Dated January 28, 2009, at 5, In 

re Production of Tangible Things, No. BR 08-13 (FISA Ct. Feb. 17, 2009)(“2009 Mem.”). 

153 See 2009 Mem. at 6. 

154 2009 Mem. at 8.

155 2009 Mem. at 8, 11-12.
48

approval.156 It also contradicted the sworn attestations of several executive branch officials 

who filed declarations with the FISA court about the operation of the NSA’s program.157

Upon discovering these problems, the DOJ promptly reported them to the FISC.

158 At 

the same time, the NSA made several failed attempts to implement a software fix but, 

unable to do so, it shut down the alert list process completely.159

Upon being notified about noncompliance and misrepresentations regarding the 

alert system, FISA court Judge Reggie B. Walton — the judge who had most recently 

reauthorized the NSA’s program — ordered the government to file a written brief, with 

supporting documentation, to help the court determine what remedial or punitive steps 

should be taken in light of the disclosure.160

Responding to the FISA court’s order, the government acknowledged that “the NSA’s 

descriptions to the Court of the alert list process” were “inaccurate” and that the court’s 

orders “did not provide the Government with authority to employ the alert list in the 

manner in which it did.”161 The government attributed this problem in part to the NSA’s 

mistaken interpretation of the FISA court’s orders, which applied restrictions to the NSA’s 

“archived data.” According to the government, the NSA believed these restrictions did not 

apply to records as they were being transmitted into the NSA’s databases but before they 

had been formatted and “archived” for use by analysts.162

In sum, the government stated, the NSA’s violations resulted not from an intent to 

mislead or disobey the court’s orders, but rather from misunderstanding among the 

personnel involved with running the program and describing it to the FISA court about 

exactly how certain aspects of the program operated. As explained in a supporting 

declaration filed by NSA Director Keith Alexander, “it appears there was never a complete 

understanding among the key personnel” who reviewed the agency’s reports to the court 

“regarding what each individual meant by the terminology used” in the reports. 

“Furthermore, from a technical standpoint, there was no single person who had a complete 

technical understanding of the [program’s] system architecture.”163

 

156 See 2009 Mem. at 16.

157 See Order Regarding Preliminary Notice of Compliance Incident Dated January 15, 2009, at 2, In re 

Production of Tangible Things, No. BR 08-13 (FISA Ct. Jan. 28, 2009) (“Jan. 2009 Order”).

158 See Jan. 2009 Order at 2.

159 2009 Mem. at 17.

160 Jan. 2009 Order at 2-3.

161 2009 Mem. at 1-2.

162 See 2009 Mem. at 11-12, 25-26.

163 Declaration of Lieutenant General Keith B. Alexander, at 18-19, In re Production of Tangible Things, 

No. BR 08-13 (FISA Ct. Feb. 13, 2009).
49

The government argued, however, that in light of the “vital” role played by the 

calling records in the government’s ability to find and identify terrorist agents, along with a 

number of extensive corrective measures the NSA was undertaking, the FISA court should 

not rescind its orders approving the collection of telephone records or take any other 

remedial action.164

The government also reported that the NSA reviewed all 275 intelligence reports 

that the agency had disseminated since 2006 based on analysis of telephone records 

obtained under Section 215. While thirty-one of those reports were prompted by the alert 

list process, the NSA did not identify any such report that resulted from the query of a 

telephone number that lacked RAS approval. In addition, the agency determined that in all 

instances where a U.S. number served as the initial “seed” number targeted for analysis 

since 2006 (which occurred in twenty-two of the 275 reports), the U.S. number was either 

already the subject of electronic surveillance approved by the FISA court or had been 

reviewed by the NSA’s Office of General Counsel to ensure that the RAS determination for 

that number was not based solely on activities protected by the First Amendment. 165

In a subsequent order, Judge Walton observed that, as illustrated in the 

government’s response, “since the earliest days of the FISC-authorized collection of calldetail records by the NSA, the NSA has on a daily basis, accessed the BR metadata for 

purposes of comparing thousands of non-RAS approved telephone identifiers on its alert 

list against the BR metadata in order to identify any matches.”166 He further wrote that the 

agency’s professed misinterpretation of the court’s orders — viewing their restrictions as 

applying only to telephone records that had been “archived” in the agency’s databases —

“strains credulity.”167 As Judge Walton put it: “It is difficult to imagine why the Court would 

intend the applicability of the RAS requirement — a critical component of the procedures 

proposed by the government and adopted by the Court — to turn on whether or not the 

data being accessed has been ‘archived’ by the NSA in a particular database at the time of 

access.”168 Such an “illogical interpretation,” Judge Walton continued, “renders compliance 

with the RAS requirement merely optional.”169

Regardless of what factors contributed to the NSA’s misrepresentations to the Court, 

Judge Walton wrote, “the government’s failure to ensure that responsible officials 

 

164 2009 Mem. at 22-28.

165 2009 Mem. at 17-18.

166 Order at 4-5, In re Production of Tangible Things, No. BR 08-13 (FISA Ct. Mar. 2, 2009) (“Mar. 2009 

Order”).

167 Mar. 2009 Order at 5.

168 Mar. 2009 Order at 5.

169 Mar. 2009 Order at 5.
50

adequately understood the NSA’s alert list process, and to accurately report its 

implementation to the Court, has prevented, for more than two years, both the government 

and the FISC from taking steps to remedy daily violations of the minimization procedures 

set forth in FISC orders,” which were designed to protect call detail records that “could not 

otherwise have been legally captured in bulk.”170

After the alert list problems were brought to the FISA court’s attention, the NSA 

undertook an end-to-end review of its technical and operational processes for handling 

telephone records obtained under Section 215.171 That review uncovered another 

automated system implemented by the NSA that routinely permitted searches of the 

Section 215 telephone records without RAS approval.172

According to a filing notifying the FISC about the issue, this analytical tool 

“determined if a record of a telephone identifier was present in NSA databases and, if so, 

provided analysts with certain information regarding the calling activity associated with 

that identifier.” When NSA analysts utilized the tool to search for particular numbers, the 

system would query the Section 215 database of calling records along with other NSA 

databases. The tool did not, however, “provide analysts with the telephone identifiers that 

were in contact with the telephone identifier that served as a basis for the query.”173

In response to this new discovery, in February 2009 the NSA restricted access to its 

Section 215 calling records to permit only manual queries based on RAS-approved 

telephone numbers, preventing any automated process from accessing the records.174

B. Improper Searches of Records by Analysts

In 2008 and 2009, the government also brought to the attention of the FISA court a 

series of improper manual searches of telephone records by analysts that violated the 

court’s orders.

During a five-day period in April 2008, the NSA determined, thirty-one NSA analysts 

queried the telephone records database “without being aware they were doing so.”175 Upon 

discovering this problem, Judge Walton later explained, “the NSA undertook a number of 

remedial measures, including suspending the 31 analysts’ access pending additional 

 

170 Mar. 2009 Order at 8-9.

171 See Notice of Compliance Incidents, at 1, In re Production of Tangible Things, No. BR 08-13 (FISA Ct. 

Feb. 26, 2009).

172 Id.

173 Notice of Compliance Incidents, supra, at 2-3.

174 Notice of Compliance Incidents, supra, at 3.

175 Mar. 2009 Order at 9 (quoting government report).
51

training, and modifying the NSA’s tool for accessing the data so that analysts were required 

specifically to enable access to the BR metadata and acknowledge such access.”176

These corrective steps did not entirely solve the problem. As the government 

informed the FISA court in December of that year, “one analyst had failed to install the

modified access tool and, as a result, inadvertently queried the data using five identifiers 

for which NSA had not determined that the reasonable articulable suspicion standard was 

satisfied.”177

Similar problems continued, and in late January 2009 the government informed the 

court that, during December and January, two NSA analysts had used 280 foreign telephone 

numbers to query the records without determining that the RAS standard had been 

satisfied.178 As Judge Walton noted upon being informed of this latest problem, those 

queries apparently were conducted “despite full implementation” of the software 

modifications and additional training that the NSA carried out in response to previous 

violations.179 

In February 2009, the NSA initiated an audit of all queries made of its Section 215 

telephone records in the preceding three months. This audit identified more instances of 

improper analyst queries of the data: three analysts were responsible for fourteen 

instances of improper querying during that period. None of the improper queries resulted 

in any intelligence reporting and none of the identifiers used were associated with a U.S. 

telephone number or person. The NSA concluded that each analyst thought he or she was 

conducting queries of other repositories of telephone records not subject to the FISA 

court’s orders. The government stated that software changes were made to ensure that 

analysts could access the Section 215 data only through one specific tool.180

C. FISA Court Response to NSA Violations

By March 2009, all of the violations described above had been reported to the FISA 

court. After surveying the violations, Judge Walton reminded the government that the FISA 

court had authorized the bulk collection of telephone records based upon “(1) the 

government’s explanation, under oath, of how the collection of and access to such data are 

necessary to analytical methods that are vital to the national security of the United States; 

and (2) minimization procedures that carefully restrict access to the BR metadata and 

 

176 Mar. 2009 Order at 9-10.

177 Mar. 2009 Order at 10.

178 Mar. 2009 Order at 10.

179 Mar. 2009 Order at 10.

180 Supplemental Declaration of Lieutenant General Keith B. Alexander, at 8-9, In re Production of 

Tangible Things, No. BR 08-13 (FISA Ct. Feb. 26, 2009).
52

include specific oversight requirements.”181 The judge noted that given the executive 

branch’s expertise in matters of national security, and the large scale of the collection 

program, “the Court must rely heavily on the government to monitor this program to 

ensure that it continues to be justified, in the view of those responsible for our national 

security, and that it is being implemented in a manner that protects the privacy interests of 

U.S. persons as required by applicable minimization procedures.”182 Judge Walton wrote 

that he “no longer” had confidence “that the government is doing its utmost to ensure that 

those responsible for implementation fully comply with the Court’s orders.”183

Observing that “from the inception of this FISA BR program, the NSA’s data 

accessing technologies and practices were never adequately designed to comply with the 

governing minimization procedures,” Judge Walton concluded that “notwithstanding the 

remedial measures undertaken by the government . . . more is needed to protect the 

privacy of U.S. person information acquired and retained pursuant to the FISC orders 

issued in this matter.”184 However, “given the government’s repeated representations that 

the collection of the BR metadata is vital to national security,” and in light of the court’s 

earlier determinations that the program met the statutory requirements of Section 215, 

when conducted “in compliance with appropriate minimization procedures,” Judge Walton 

decided that “it would not be prudent to order that the government’s acquisition of the BR 

metadata cease at this time.”185

Instead, Judge Walton prohibited NSA analysts from conducting any searches of the 

telephone records without obtaining prior approval from the FISA court to search a 

particular number.186 Once the NSA completed its end-to-end system engineering and 

process reviews, he ordered, it was to file a number of documents and affidavits with the 

FISA court regarding the results of this review, remedial steps taken, proposed oversight 

procedures for any future court order, and the national security value of the telephone 

records program.187

D. Improper Dissemination of Call Records Outside the NSA

As the NSA was conducting its end-to-end review of the Section 215 program, the 

government reported to the FISA court another violation of its orders. As the government 

explained, calling records that had been analyzed by the NSA were made available to other 

 

181 Mar. 2009 Order at 12 (quoting government report).

182 Mar. 2009 Order at 12.

183 Mar. 2009 Order at 12.

184 Mar. 2009 Order at 14-15, 17.

185 Mar. 2009 Order at 17.

186 Mar. 2009 Order at 18-19.

187 Mar. 2009 Order at 19-20.
53

intelligence agencies without taking the steps that were required before such 

dissemination of information about U.S. persons was permitted. This violated not only the 

FISA court’s orders but also the generally applicable dissemination rules governing all of 

the NSA’s activities. 

In June 2009, the government notified the FISA court that the unminimized results 

of some queries of Section 215 telephone records — meaning the results of contactchaining searches, including information regarding U.S. persons — had been uploaded by 

the NSA into a database to which other intelligence agencies had access. Providing such 

access, the government explained, may have resulted in the dissemination of U.S. person 

information in violation of the NSA’s general dissemination rules and the more restrictive 

rules on disseminations imposed by the FISA court in its Section 215 orders.188 The 

government asserted that the NSA promptly terminated the access of outside agencies to 

these records and investigated the matter.189

Judge Walton responded by ordering the government to file a weekly report listing 

each instance during the preceding week in which the NSA shared, in any form, information 

derived from the Section 215 program with anyone outside of the agency. He also directed 

the government to furnish a full explanation of how this violation came about in its 

forthcoming submissions reporting the results of its end-to-end systems review.190

E. FISA Court Reauthorization of the Program with More Detailed Rules 

In August 2009 the government submitted to the FISA court documents reporting 

the results of its end-to-end review and responding to the court’s concerns regarding 

violations of its orders. These documents included a lengthy report to the court, a 

declaration from NSA Director Keith Alexander concerning incidents of NSA noncompliance 

with the court’s orders, a declaration from General Alexander concerning the value of the 

NSA’s bulk telephone records program, an affidavit from FBI Director Robert Mueller 

concerning the value of the program, and an NSA review of the program’s operation. 

Collectively, these documents sought to explain previous instances of NSA 

noncompliance with the FISA court’s orders, identify new areas in which the agency’s 

practices had not been fully or accurately described to the court, describe remedial steps 

taken to correct those deficiencies, articulate the value of the program in combating 

terrorism, and propose a set of expanded rules and restrictions for the continuation of the 

program. 

 

188 Order at 5, In re Application of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things, No. BR 09-06 (FISA Ct. June 22, 2009) (“June 2009 Order”).

189 June 2009 Order at 6.

190 June 2009 Order at 7-8.
54

As the program came up for renewal by the FISA court the following month, the 

government requested permission to resume analyzing calling records based on the NSA’s 

own determinations that the RAS standard was satisfied — rather than by seeking prior 

permission of the FISA court, as the agency had been required to do for the previous six 

months. The government’s application proposed a more detailed set of conditions 

restricting the NSA’s handling and use of telephone records obtained under Section 215, in 

keeping with the results of the investigations carried out over the previous months. In early 

September 2009, Judge Walton granted the government’s application, restoring the bulk 

telephone records program to its original footing with the addition of these more detailed 

conditions. The resulting primary order closely resembles the orders that have since been 

issued by the FISA court up to the present day.191

VI. Operation of the Program Between 2009 and the Present

Since 2009, there have been no major changes in the operation of the Section 215 

program. Between late 2009 and late 2013, the government submitted notices to the FISA 

court reporting ten different types of violations of the court’s orders. Nearly all of the 

incidents in question involved isolated violations that the NSA took steps to remedy and 

prevent in the future. Two incidents involved more widespread, though inadvertent, 

violations of the rules governing the Section 215 program.

The isolated incidents reported to the FISA court comprised the following 

violations: (1) The NSA inadvertently received a tiny amount of cell site location 

information from a provider on one occasion (the data was accessible only to technical 

personnel and was never available to intelligence analysts); (2) An analyst performed a 

query on a selection term whose RAS approval had expired earlier that month (the agency 

responded with technical modifications to prevent such incidents); (3) A RAS 

determination was made based on what was later discovered to be incorrect information 

(the resulting query results were destroyed, and no intelligence reports were issued based 

on the query); (4) On several occasions analysts shared the results of queries via email with 

NSA personnel who were not authorized to receive such information (the agency 

responded with new procedures for email distribution); (5) An analyst sent an email 

message containing information derived from the Section 215 data to the wrong person, 

due to a typographical error in the email address (the recipient reportedly deleted the 

message without reading it, recognizing the error); (6) Information about U.S. persons was 

on three occasions disseminated outside the NSA before any official made the 

determinations that are required for such disseminations (officials later concluded that the 

 

191 See Primary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things, No. BR 09-13 (FISA Ct. Sept. 3, 2009).
55

standards for dissemination were satisfied in each case); (7) The government filed nine 

reports with the FISA court that lacked certain information required to be in such reports 

(the missing information involved no wrongdoing or noncompliance, and it subsequently 

was furnished to the court); (8) The government filed a compliance report with the FISA 

court on a Monday, instead of on the deadline the previous Friday.

The two other noncompliance incidents were more far-reaching, although both 

represented inadvertent violations. In one incident, NSA technical personnel discovered a 

technical server with nearly 3,000 files containing call detail records that were more than 

five years old, but that had not been destroyed in accordance with the applicable retention 

rules. These files were among those used in connection with a migration of call detail 

records to a new system. Because a single file may contain more than one call detail record, 

and because the files were promptly destroyed by agency technical personnel, the NSA 

could not provide an estimate regarding the volume of calling records that were retained 

beyond the five-year limit. The technical server in question was not available to intelligence 

analysts.

In the other incident, the NSA discovered that it had unintentionally received a large 

quantity of customer credit card numbers from a provider. These related to cases in which 

a customer used a credit card to pay for a phone call. This problem, which involved cases in 

which customers used credit cards to pay for phone calls, resulted from a software change 

implemented by the provider without notice to the NSA. In response to the discovery, the 

NSA masked the credit card data so that it would not be viewable for intelligence analysis. 

It also asked providers to give advance notice of changes that might affect the data 

transmitted to the NSA. The agency later eliminated the credit card data from its analytic 

stores, although the data remained in the agency’s non-analytic online stores and in backup tapes. Despite repeated efforts to attempt a technical fix, six months later the agency 

was still receiving a significant amount of credit card information from the provider. As a 

result of additional efforts, this was reduced to fewer than five credit card numbers per 

month, and the provider continued to work to eliminate such production entirely.

In June 2013, the British newspaper The Guardian began publishing a series of 

articles regarding the Section 215 program and other secret NSA activities, based on 

unauthorized disclosures of classified documents by NSA contractor Edward Snowden. In 

the months following these disclosures, the executive branch declassified certain 

information about the telephone records program, and intelligence officials testified about 

it before Congress. In August 2013, the Obama Administration released a white paper 

setting forth the Administration’s legal position on the statutory and constitutional 
56

legitimacy of the program.192 Later that month, FISA court Judge Claire V. Eagan issued the 

first FISA court opinion that explained the court’s rationale for approving the program.193

On October 11, 2013, the FISA court again renewed the program, and Judge Mary A. 

McLaughlin issued a memorandum adopting and expanding on Judge Eagan’s reasoning.194

The FISA court reauthorized the Section 215 program most recently on January 3, 2014.

 

192 See Administration White Paper, Bulk Collection of Telephony Metadata under Section 215 of the 

USA PATRIOT Act (Aug. 9, 2013).

193 See Amended Memorandum Opinion, In re Application of the Federal Bureau of Investigation for an 

Order Requiring the Production of Tangible Things, No. BR 13-109 (FISA Ct. Aug. 29, 2013).

194 Memorandum, In re Application of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things, No. BR 13-158 (FISA Ct. Oct. 11, 2013).
57

Part 5:

STATUTORY ANALYSIS

I. Overview 

Since 2006, the government has argued before the FISA court that Section 215 of the 

Patriot Act provides a legal basis for the NSA’s bulk telephone records program. The FISA 

court has agreed and has authorized the program. In the wake of public disclosure of the 

program in June 2013, the government has further defended its statutory legitimacy in 

litigation and in a publicly issued white paper. Having independently examined this 

statutory question, the Board disagrees with the conclusions of the government and the 

FISA court. The Board believes that the following analysis is the most comprehensive 

analysis to date of Section 215 as it relates to the NSA’s bulk telephone records program. 

We find that there are multiple and cumulative reasons for concluding that Section 215 

does not authorize the NSA’s ongoing daily collection of telephone calling records 

concerning virtually every American. 

To be clear, the Board believes that this program has been operated in good faith to 

vigorously pursue the government’s counterterrorism mission and appreciates the 

government’s efforts to bring the program under the oversight of the FISA court. However, 

the Board concludes that Section 215 does not provide an adequate legal basis to support 

this program. Because the program is not statutorily authorized, it must be ended.

Section 215 is designed to enable the FBI to acquire records that a business has in 

its possession, as part of an FBI investigation, when those records are relevant to the 

investigation. Yet the operation of the NSA’s bulk telephone records program bears almost 

no resemblance to that description. 

First, the telephone records acquired under this program have no connection to any 

specific FBI investigation at the time the government obtains them. Instead, they are 

collected in advance to be searched later for records that do have such a connection. 

Second, because the records are collected in bulk — potentially encompassing all telephone 

calling records across the nation — they cannot be regarded as “relevant” to any FBI 

investigation without redefining that word in a manner that is circular, unlimited in scope, 

and out of step with precedent from analogous legal contexts involving the production of 

records. Third, instead of compelling telephone companies to turn over records already in 

their possession, the program operates by placing those companies under a continuing 

obligation to furnish newly generated calling records on a daily basis. This is an approach 

lacking foundation in the statute and one that is inconsistent with FISA as a whole, because 

it circumvents another provision that governs (and limits) the prospective collection of the 
58

same type of information. Fourth, the statute permits only the FBI to obtain items for use in 

its own investigations. It does not authorize the NSA to collect anything. 

In addition, the Board concludes that the NSA’s program violates the Electronic 

Communications Privacy Act. That statute prohibits telephone companies from sharing 

customer records with the government except in response to specific enumerated 

circumstances — which do not include orders issued under Section 215. 

Finally, the Board does not believe that these flaws are overcome because Congress 

twice delayed the expiration of Section 215 during the operation of the program without 

amending the statute. The “reenactment doctrine,” under which Congress is presumed to 

have adopted settled administrative or judicial interpretations of a statute, does not trump 

the plain meaning of a law, and it cannot save an administrative or judicial interpretation 

that contradicts the statute itself. Moreover, the circumstances presented here differ in 

pivotal ways from any in which the reenactment doctrine has ever been applied. Applying 

the doctrine here would undermine the public’s ability to know what the law is and hold 

their elected representatives accountable for their legislative choices.

II. Connection Between Calling Records and Specific FBI Investigations

In order for business records or other tangible things to be acquired through Section 

215, the government must provide a statement of facts showing reasonable grounds to 

believe that they are “relevant to an authorized investigation (other than a threat 

assessment)” to obtain foreign intelligence information or to protect against international 

terrorism or clandestine intelligence activities.195

Before examining whether the massive quantity of telephone records acquired 

under Section 215 can plausibly be regarded as relevant to the government’s 

counterterrorism efforts, given that nearly all of them are not connected to terrorism in any 

way, the latter part of the statutory formulation “relevant to an authorized investigation” 

merits independent consideration. Regardless of how expansively the word “relevant” may 

be construed, the statute demands some nexus between the records sought and a specific 

investigation.

Notably, Section 215 requires that records sought be relevant to “an” authorized 

investigation. Elsewhere, the statute similarly describes the records that can be obtained 

 

195 50 U.S.C. § 1861(b)(2)(A) (“Each application under this section . . . shall include . . . a statement of 

facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an 

authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to 

obtain foreign intelligence information not concerning a United States person or to protect against 

international terrorism or clandestine intelligence activities[.]”). 
59

under its auspices as those sought “for an investigation.”196 The use of the singular noun in 

these passages signals an expectation that the records are being sought for use in a specific, 

identified investigation. This interpretation is reinforced by the requirement that the FISA 

court make specific findings about the investigation for which the records are sought —

that it is supported by a factual predicate, conducted according to guidelines approved by 

the Attorney General, and not based solely upon activities protected by the First 

Amendment when conducted of a U.S. person.

197

The government’s applications to the FISA court seeking renewal of the NSA’s 

program do not link the applications to a single counterterrorism investigation. Instead, the 

applications list multiple terrorist organizations, assert that the FBI is investigating all of 

them, and declare that the telephone records being sought are relevant to each of those 

investigations. The FISA court orders granting the government’s applications all contain a 

finding that there are reasonable grounds to believe that the records sought are relevant to 

authorized “investigations.”198 The orders further conclude that these investigations satisfy 

the three criteria listed above.199 The FISA court has stated that the purpose of the 

government’s applications “is to obtain foreign intelligence information in support of . . . 

individual authorized investigations to protect against international terrorism and 

concerning various international terrorist organizations.”200

The government’s approach, in short, has been to declare that the calling records 

being sought are relevant to all of the investigations cited in its applications. This approach, 

at minimum, is in deep tension with the statutory requirement that items obtained through 

a Section 215 order be sought for “an investigation,” not for the purpose of enhancing the 

government’s counterterrorism capabilities generally. Declaring that the calling records 

are relevant to every counterterrorism investigation cited by the government is little 

 

196 50 U.S.C. § 1861(a)(1).

197 By referring to an “authorized” investigation, “other than a threat assessment,” 50 U.S.C. 

§ 1861(b)(2)(A), Section 215 excludes those FBI investigatory activities that “do not require a particular 

factual predicate” — limiting its reach to approved investigations that have been initiated “on the basis of any 

‘allegation or information’ indicative of possible criminal activity or threats to the national security.” FBI 

Domestic Investigations and Operations Guide §§ 5.1, 6.2 (Oct. 15, 2011). The investigation for which the 

records are sought also must be “conducted under guidelines approved by the Attorney General under 

Executive Order 12333 (or a successor order),” and must “not be conducted of a United States person solely 

upon the basis of activities protected by the first amendment to the Constitution of the United States.” 50 

U.S.C. § 1861(a)(2).

198 See Primary Order at 2, In re Application of the Federal Bureau of Investigation for an Order Requiring 

the Production of Tangible Things, No. BR 13-158 (Oct. 11, 2013) (“Primary Order”).

199 See Primary Order at 2.

200 Amended Memorandum Opinion at 4, In re Application of the Federal Bureau of Investigation for an 

Order Requiring the Production of Tangible Things, No. BR 13-109 (FISA Ct. Aug. 29, 2013) (“Amended 

Memorandum Opinion”).
60

different, in practical terms, from simply declaring that they are relevant to 

counterterrorism in general. 

That is particularly so when the number of calling records sought is not limited by 

reference to the facts of any specific investigation. At its core, the approach boils down to 

the proposition that essentially all telephone records are relevant to essentially all 

international terrorism investigations. The Board does not believe that this approach 

comports with a fair reading of the statute.

Moreover, this approach undermines the value of an important statutory limitation 

on the government’s collection of records under Section 215. The statute provides that 

records cannot be obtained for a “threat assessment,” meaning those FBI investigatory 

activities that “do not require a particular factual predicate.”201 By excluding threat 

assessments from the types of investigations that can justify an order, Congress directed 

that Section 215 not be used to facilitate the broad and comparatively untethered 

investigatory probing that is characteristic of such assessments. But by collecting the 

nation’s calling records en masse, under an expansive theory of their relevance to multiple 

investigations, the NSA’s program undercuts one of the functions of the “threat assessment” 

exclusion: ensuring that records are not acquired by the government without some reason 

to suspect a connection between those records and a specific, predicated terrorism 

investigation. While the rules governing the program limit the use of telephone records to 

searches that are prompted by a specific investigation, the relevance requirement in 

Section 215 restricts the acquisition of records by the government.

III. Relevance

The government has argued, and the FISA court has agreed, that essentially the 

entire nation’s calling records are “relevant” to every counterterrorism investigation cited 

in the government’s applications to the court. This position is untenable. Moreover, the 

interpretation of Section 215 adopted by the FISA court is dangerously overbroad, leading 

to the implication that virtually all information may be relevant to counterterrorism and 

therefore subject to collection by the government.

Since the public disclosure of the NSA’s program, two related rationales have been 

offered in support of the government’s interpretation of the word “relevant” under Section 

 

201 FBI Domestic Investigations and Operations Guide §§ 5.1, 6.2 (Oct. 15, 2011). Although threat 

assessments do not require a factual predicate, they may not be based on “arbitrary or groundless 

speculation” or “solely on the exercise of First Amendment protected activities or on the race, ethnicity, 

national origin or religion of the subject.” Id. § 5.1. See also The Attorney General’s Guidelines for Domestic 

FBI Operations, § II (Sept. 29, 2008) (distinguishing between assessments and predicated investigations).
61

215. One is found in a FISA court opinion from August 2013, which reflects the 

interpretation presented to the court since 2006 in the government’s applications.202 The 

other, related, rationale is found in a publicly issued administration white paper and in 

filings submitted to other courts by the government in response to legal challenges to the 

program.203 We address these two rationales in turn.

A. “Necessity”

While recognizing that the NSA collects telephone records indiscriminately under its 

Section 215 program — potentially acquiring the entire nation’s daily calling records — the 

FISA court has concluded that all of those records are relevant to the government’s 

counterterrorism investigations. The court’s reasoning: collecting telephone records in 

bulk is necessary to enable a particular analytic tool that the government wishes to employ 

in its investigations. Because this tool involves searching all calling records in order to 

identify those that are related to terrorism, all calling records are relevant to the 

government’s investigations.

In the FISA court’s words, its finding of relevance “most crucially depended on the 

conclusion that bulk collection is necessary for NSA to employ tools that are likely to 

generate useful investigative leads to help identify and track terrorist operatives.”204 As 

with an earlier NSA program that collected Internet metadata in bulk, the court determined 

that “bulk collections such as these are necessary to identify the much smaller number of 

[international terrorist] communications,” and the court explained that “it is this showing 

of necessity that led the Court to find that that the entire mass of collected metadata is 

relevant to investigating [international terrorist groups] and affiliated persons.”205 Because 

“the subset of terrorist communications is ultimately contained within the whole of the 

metadata produced, but can only be found after the production is aggregated and then 

queried using identifiers determined to be associated with identified international terrorist 

organizations, the whole production is relevant to the ongoing investigation out of 

necessity.”206 Therefore, according to the FISA court, “[a]ll of the metadata collected is thus 

 

202 See Amended Memorandum Opinion, In re Application of the Federal Bureau of Investigation for an 

Order Requiring the Production of Tangible Things, No. BR 13-109 (FISA Ct. Aug. 29, 2013).

203 See Administration White Paper, Bulk Collection of Telephony Metadata under Section 215 of the 

USA PATRIOT Act, at 8-15 (Aug. 9, 2013); Defendants’ Memorandum of Law in Support of Motion to Dismiss 

the Complaint, at 20-29, ACLU v. Clapper, No. 13-3994 (S.D.N.Y. Aug. 26, 2013).

204 Amended Memorandum Opinion at 20 (quoting Memorandum Opinion, No. PR/TT [redacted] (FISA 

Ct. 2010)); see id. at 21 (“This case is no different.”).

205 Amended Memorandum Opinion at 20 (quoting Memorandum Opinion, No. PR/TT [redacted] (FISA 

Ct. 2010) (internal quotation marks omitted; brackets in Amended Memorandum Opinion)).

206 Amended Memorandum Opinion at 22.
62

relevant, because the success of this investigative tool depends on bulk collection.”207 A 

recent decision from the Southern District of New York adopted the same reasoning, 

stating that “aggregated telephony metadata is relevant because it allows the [NSA’s] 

querying technique to be comprehensive.”208

In the Board’s view, this interpretation of the statute is circular and deprives the 

word “relevant” of any interpretive value. All records become relevant to an investigation, 

under this reasoning, because the government has developed an investigative tool that 

functions by collecting all records to enable later searching. The implication of this 

reasoning is that if the government develops an effective means of searching through 

everything in order to find something, then everything becomes relevant to its 

investigations. The word “relevant” becomes limited only by the government’s 

technological capacity to ingest information and sift through it efficiently. 

If Section 215’s relevance requirement is to serve any meaningful function, 

however, relevance cannot be premised on the government’s desire to use a tool whose 

very operation depends on collecting information without limit. We believe that a tool 

designed to capture all records of a particular type is simply incompatible with a statute 

requiring reasonable grounds to believe that “the tangible things sought are relevant to an 

authorized investigation.”209

We find such a result not only inconsistent with the text of Section 215 but 

dangerously overbroad. While terrorists use telephone communications to facilitate their 

plans, they also write emails, open bank accounts, use debit and credit cards, send money 

orders, rent vehicles, book hotel rooms, sign leases, borrow library books, and visit 

websites, among other things. Having information about all such transactions, as conducted 

by every person in the United States, would aid the government’s counterterrorism efforts 

so long as the government developed a technological means of sorting through the mass of 

data to find clues about suspected operatives. This elastic definition of relevance not only 

proves too much, but also supplies a license for nearly unlimited governmental acquisition 

of other kinds of transactional information.

This rationale also is inconsistent with Section 215’s requirement that the 

government provide “a statement of facts” showing that there are “reasonable grounds to 

 

207 Amended Memorandum Opinion at 21 (quoting Mem. of Law in Support of App. for Certain Tangible 

Things for Investigations to Protect Against International Terrorism, at 15, No. BR 06-05 (May 23, 2006)).

208 Memorandum & Order at 35, ACLU v. Clapper, No. 13-3994 (S.D.N.Y. Dec. 27, 2013). As the 

government has put it, the entire nation’s telephone calling records are relevant to the FBI’s counterterrorism 

investigations because “NSA’s analytic tools require the collection and storage of a large volume of metadata” 

and its querying process “is not feasible unless NSA analysts have access to telephony metadata in bulk.”

Administration White Paper at 13.

209 50 U.S.C. § 1861(b)(2)(A). 
63

believe” that items sought are relevant to an investigation.210 Such language calls upon the 

government to supply a fact-bound explanation of why the particular group of records it 

seeks may have some bearing on one of its investigations. But because the NSA’s program 

depends on collecting virtually all telephone records, only two facts are cited by the 

government in support of its applications: that terrorists communicate by telephone, and 

that it is necessary to collect records in bulk to find the connections that can be uncovered 

by NSA analysis.211

Neither of these facts shows why a particular group of telephone records may be 

relevant to an investigation, because the government has not limited its request to any 

particular group at all — only to a particular type of record (telephone calling records). But 

the type of records that can be acquired under Section 215 is defined elsewhere in the 

statute.212 Unless the relevance requirement imposes an additional restriction beyond 

those provisions, it serves no real function at all. Thus we disagree that “all telephony 

metadata is a relevant category of information” that the government may request under 

Section 215.

213 Because if the category “all telephony metadata” is acceptable, why not “all 

metadata”? Or simply “all data”? That is the future that can be expected if the government’s 

interpretation of Section 215 prevails.

B. Analogous Contexts 

Noting that the word “relevant” is undefined in Section 215, the FISA court believed 

that it must be given its “ordinary meaning.”214 In contrast, the government has argued in a 

white paper and in litigation that the concept of relevance “has developed a particularized 

legal meaning in the context of the production of documents and other things in 

conjunction with official investigations and legal proceedings.”215 The government argues 

that Congress “legislated against that legal backdrop in enacting Section 215 and thus 

 

210 50 U.S.C. § 1861(b)(2)(A).

211 As the FISA court put it: “The fact that international terrorist operatives are using telephone 

communications, and that it is necessary to obtain the bulk collection of a telephone company’s metadata to 

determine those connections between known and unknown international terrorist operatives as part of 

authorized investigations, is sufficient to meet the low statutory hurdle set out in Section 215 to obtain a 

production of records.” Amended Memorandum Opinion at 22-23.

212 Specifically, the statute authorizes production of “any tangible things (including books, records, 

papers, documents, and other items)” that “can be obtained with a subpoena duces tecum issued by a court of 

the United States in aid of a grand jury investigation or with any other order issued by a court of the United 

States directing the production of records or tangible things.” 50 U.S.C. § 1861(a)(1), (c)(2)(D).

213 Memorandum & Order, ACLU v. Clapper, supra, at 37.

214 Amended Memorandum Opinion at 18 (citing Taniguchi v. Ken Pacific Saipan, Ltd., 132 S. Ct. 1997, 

2002 (2012)).

215 Administration White Paper at 9.
64

‘presumably kn[e]w and adopt[ed] the cluster of ideas that were attached to [the] word in 

the body of learning from which it was taken.’”

216

Accordingly, the government has cited decisions involving civil discovery, grand jury 

subpoenas, and administrative subpoenas, arguing that in these analogous contexts courts 

recognize that “the relevance standard permits requests for the production of entire 

repositories of records, even when any particular record is unlikely to directly bear on the 

matter being investigated, because searching the entire repository is the only feasible 

means to locate the critical documents.”217 More broadly, the government views this case 

law as illustrating that “the relevance standard permits discovery of large volumes of 

information in circumstances where the requester seeks to identify much smaller amounts 

of information within the data that directly bears on the matter.”218 A recent decision of the 

Southern District of New York cited some of these decisions for the same purpose.

219

We agree that the word “relevant” in Section 215 should be interpreted in light of 

precedent from analogous legal contexts involving the production of documents. But a 

close look at the decisions cited by the government, and others concerning the standards of 

relevance governing discovery and subpoenas, refutes the idea that the NSA’s bulk 

collection of telephone records would be regarded as satisfying the relevance standard in 

any of those contexts. 

The first problem is that, as the government acknowledges, “the cases that have 

been decided in these contexts do not involve collection of data on the scale at issue in the 

telephony metadata collection program.”220 But the second and more fundamental problem 

is that these cases do not employ an analytical concept of “relevance” that matches the one 

being offered in support of the NSA’s program. Simply put, there is no precedent for the 

notion that the government may collect a massive trove of records, of which virtually none 

can be expected to be pertinent to its investigation, merely because it has developed a 

technological tool that it believes will enable it to locate an infinitesimal fraction of 

pertinent records within that trove. Superficial similarities to that notion in the case law 

cited by the government dissolve upon further inspection.

It certainly is true that in the civil, grand jury, and administrative subpoena contexts, 

parties requesting materials may seek broad categories of documents, among which many 

of the individual records produced may prove unrelated. Such categories of materials can 

 

216 Administration White Paper at 9 (quoting FAA v. Cooper, 132 S. Ct. 1441, 1449 (2012)).

217 Administration White Paper at 10.

218 Administration White Paper at 10.

219 Memorandum & Order, ACLU v. Clapper, at 37.

220 Administration White Paper at 11.
65

be regarded as “relevant” if obtaining them aids a party’s fact-finding efforts, even if not all 

of the records are expected to be directly pertinent. Civil litigants, grand juries, and 

administrative agencies, when pursuing the “discovery of evidence” or acting in their 

“investigative function,” need not be “limited [by] forecasts of the probable result of the 

investigation.”221 The case law also shows that the sheer volume of a discovery request is 

not alone grounds for a finding of irrelevance — at least in the scenarios confronted so far 

by the courts, which have involved dramatically fewer materials.

These broad propositions are not sufficient to justify the NSA’s bulk collection of 

records under Section 215. In every decision cited by the government, the category of 

records sought has been limited in some way by reference to the facts of the specific 

investigation at hand. There is always some qualitative reason to suspect that the 

particular group of items requested has some special significance to the investigation, 

making the items in that category “relevant” even if many of them turn out to be 

immaterial. For instance, suspecting a doctor of health care fraud, the government may 

broadly subpoena that doctor’s records for evidence of wrongdoing. Or suspecting that an 

employer is discriminating against women, plaintiffs may obtain a wide range of human 

resource records to analyze for patterns of discrimination. The scope of the request is 

always defined and limited by the specific facts of the investigation.

Not so for the NSA’s bulk telephone records program, where the government seeks 

virtually all telephone calling records based on the premise that terrorists use telephones. 

The only limiting principle is that the government’s request is confined to a particular type

of record: telephone calling records. As to that type of record, however, the government 

seeks access to virtually everything. Such a concept simply is not found in the case law that,

as the government acknowledges, Congress presumably incorporated into Section 215’s 

definition of “relevant.” 

Simply put, analogous precedent does not support anything like the principle that 

necessity equals relevance, or that a body of records can be deemed relevant when 

virtually all of them are known to be unrelated to the purpose for which they are sought. 

Regardless of the broad scope courts have afforded the relevance standard with respect to 

discovery and government subpoenas, there is always a qualitative limiting principle that 

connects the range of documents sought to the facts of the investigation at hand, thus 

placing a check on the power to acquire information. Relevance limitations are a shield that 

protects against overreaching, not a sword that enables it. 

Below, we discuss in detail the case law from which we draw these conclusions. In 

doing so, we separate decisions from the civil, criminal, and administrative contexts, to 

 

221 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 216 (1946) (quoting Blair v. United States, 250 U.S. 

273, 282 (1919)).
66

better explain how particular holdings fit into the standards that govern each production or 

discovery regime.

1. Relevance in Civil Discovery

The relevance requirement in civil discovery is rooted in Rule 26 of the Federal 

Rules of Civil Procedure, which permits parties to obtain discovery “regarding any 

nonprivileged matter that is relevant to any party’s claim or defense” and authorizes courts 

to “order discovery of any matter relevant to the subject matter involved in the action.”222

“Relevant information,” under Rule 26, “need not be admissible at the trial if the discovery 

appears reasonably calculated to lead to the discovery of admissible evidence.”223

The phrase “relevant to the subject matter involved in the action” has been 

“construed broadly to encompass any matter that bears on, or that reasonably could lead to 

other matter that could bear on, any issue that is or may be in the case.”224 Thus, the scope 

of civil discovery under the Federal Rules “is traditionally quite broad,” and the test “is 

whether the line of interrogation is reasonably calculated to lead to the discovery of 

admissible evidence.”225 These standards also reflect the reality that a party cannot know 

in advance the content of all the materials it seeks. To some inevitable extent, therefore, 

“pretrial discovery is a fishing expedition and one can’t know what one has caught until one 

fishes.”226

Nevertheless, “discovery, like all matters of procedure, has ultimate and necessary 

boundaries.”227 As one court has put it, “practical considerations dictate that the parties 

should not be permitted to roam in shadow zones of relevancy and to explore matter which 

does not presently appear germane on the theory that it might conceivably become so.”228

And the broad scope of relevance “should not be misapplied” to permit overbearing 

requests.229 The “boundaries defining information that is relevant to the subject matter 

 

222 FED. R. CIV. P. 26(b)(1).

223 FED. R. CIV. P. 26(b)(1).

224 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 

501 (1947)).

225 Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998) (quotation marks omitted) (citing, 

inter alia, Oppenheimer Fund, Inc., 437 U.S. at 351); accord Daval Steel Products v. M/V Fakredine, 951 F.2d 

1357, 1367 (2d Cir. 1991) (“This obviously broad rule is liberally construed.”); Nat’l Serv. Indus., Inc. v. Vafla 

Corp., 694 F.2d 246, 250 (11th Cir. 1982) (“This phrase is to be construed broadly.”); Santiago v. Fenton, 891 

F.2d 373, 379 (1st Cir. 1989) (“As a general matter, parties are entitled to broad discovery.”).

226 Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 931 (7th Cir. 2004).

227 Oppenheimer Fund, Inc., 437 U.S. at 351 (quoting Hickman, 329 U.S. at 507); see id. at 354 (finding 

discovery request to be beyond “the scope of legitimate discovery”).

228 In re Sur. Ass’n of Am., 388 F.2d 412, 414 (2d Cir. 1967) (citation & quotation marks omitted).

229 Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).
67

involved in the action are necessarily vague,” however, “and it is practically impossible to 

state a general rule by which they can be drawn[.]’”

230

The absence of clearly defined boundaries means that resolving disputes over 

relevance in civil discovery typically calls for an examination of analogous cases. To that 

end, the government has cited several decisions addressing the scope of civil discovery 

that, in its view, support the expansive concept of relevance embodied in the FISA court’s 

approval of the NSA’s telephone records program.231 Some of these decisions simply are 

not germane, and none are sufficient to support that expansive definition.

The plaintiffs in Goshawk Dedicated Ltd. v. Am. Viatical Servs., LLC, two insurance 

companies, sought discovery from the defendant of “an underwriting database” maintained 

by the defendant that contained detailed actuarial data used by the defendant “in 

purchasing life insurance policies, in procuring insurance from Plaintiffs, and in analyzing 

whether its actuarial data was accurate.”232 The defendant objected “that the database 

contains a significant amount of actuarial data not relevant to this litigation” — apparently 

meaning data that was not utilized in obtaining insurance from the plaintiffs. The 

defendant also contended “that the ‘methodologies, policies, and practices’ of its life 

expectancy evaluations are protected trade secrets and thus should not be subject to 

discovery.”233

The court rejected the defendant’s arguments as follows: “The problem with AVS’s 

contention is that its methodologies, policies, and practices of conducting life expectancy 

evaluations are themselves at the center of this litigation.” Stating that AVS’s legitimate 

confidentiality concerns were addressed through a confidentiality order, the court 

concluded that the database sought “is highly relevant to the claims and defenses in this 

litigation” and that “AVS has not come forth with a valid legal basis for resisting its 

disclosure.”234

The entire discussion in Goshawk is only three paragraphs long, and the court did 

not explicitly weigh in on whether, as the defendant maintained, the database truly 

“contain[ed] a significant amount of actuarial data not relevant to th[e] litigation.” But the 

court’s brief discussion suggests that it rejected the very notion that data relating to 

 

230 Food Lion, Inc. v. United Food & Commercial Workers Int’l Union, AFL-CIO-CLC, 103 F.3d 1007, 1012 

(D.C. Cir. 1997) (quoting 8 WRIGHT, MILLER & MARCUS, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2008, at 

105-06 (1994)). 

231 See Administration White Paper at 9-11.

232 Goshawk Dedicated Ltd. v. Am. Viatical Servs., LLC, No. 05-2343, 2007 WL 3492762, at *1 (N.D. Ga. 

Nov. 5, 2007).

233 Id.

234 Id.
68

transactions with other insurers was immaterial. Such data revealed the defendant’s 

“methodologies, policies, and practices of conducting life expectancy evaluations,” which 

were “at the center” of the litigation.235

In other words, the court in Goshawk did not conclude that “searching the entire 

repository [was] the only feasible means to locate the critical documents.”236 It did not 

endorse the assertion that that the database “contained a significant amount of irrelevant 

data” 237 but order production nevertheless. Rather, the court appears to have concluded 

that all of the documents were critical, rejecting the premise that data pertaining to other 

insurers was irrelevant.

Another case cited by the government, Chen-Oster v. Goldman, Sachs & Co., is even 

less on-point.238 In this gender-discrimination Title VII case, where former employees 

brought a putative class action against Goldman Sachs, the plaintiffs sought a discovery 

order requiring Goldman Sachs to extract certain human resources information from four 

separate and differently structured databases. The information was alleged to be 

“necessary for any statistical analysis of Goldman Sachs’ employment practices” at both the 

class-certification and merits stages.239 Goldman Sachs objected on proportionality 

grounds under Rule 26(b)(2)(C), citing the immense number of hours it would take to 

extract the requested information from its databases.240

The passage in this decision relied on by the government, which is not its holding, 

occurs during a discussion of less costly alternatives to the plaintiffs’ request. The court 

first floated the possibility of ordering Goldman Sachs to extract and analyze small samples 

from the database, but concluded that it lacked the expertise to unilaterally impose any 

particular technique on the parties.241 “The other alternative — and one that the plaintiffs 

advocate — would require Goldman Sachs to produce in digital form all of the information 

contained in each of the databases. Goldman Sachs acknowledges that, at least in the short 

run, such a ‘data dump’ would impose less of a burden on it than a more targeted 

production.”242 In the passage highlighted by the government, the court noted that “[t]here 

is no legal impediment to ordering production in that form,” but for pragmatic reasons the 

 

235 Id.

236 Administration White Paper at 10.

237 Administration White Paper at 10 n.7.

238 Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294 (S.D.N.Y. 2012).

239 Id. at 297.

240 Id. at 303-04.

241 Id. at 304.

242 Id. at 305.
69

court declined to order Goldman Sachs to proceed in this way.243 Instead, the court granted 

the plaintiffs’ original request and ordered Goldman Sachs to extract the requested 

information from the databases.244

All that Chen-Oster provides, therefore, is a passing nod to the idea that civil 

plaintiffs can obtain compelled disclosure of an entire database from a defendant. And the 

plaintiffs in that case intended to analyze all of the information in those four databases, 

arguing that it was “relevant in the aggregate to perform the applicable analyses to show 

patterns of statistically significant shortfalls or effects of challenged policies.”245

Chen-Oster cites two decisions in support of its observation that there was “no legal 

impediment” to ordering disclosure of a database. One is Goshawk, described above. The 

other is High Point SARL v. Sprint Nextel Corp.246

In High Point, a patent infringement case, one of the plaintiff’s interrogatories asked 

Sprint to identify information about certain technical components within its cellular 

telephone network. In response, Sprint produced a spreadsheet drawn from its so-called 

“ATLAS” system, “the tool used by Sprint to comply with the internal control requirements 

of the Sarbanes–Oxley Act, as they relate to inventory and installed equipment.”247 Sprint 

later produced a supplement to this spreadsheet, but the plaintiff notified Sprint that it 

thought this supplement was incomplete. Sprint then produced yet another supplemental 

spreadsheet. The plaintiff, High Point, told the court that it was “skeptical of how Sprint 

queried its ATLAS database given that each supplemental spreadsheet contained 

substantial new information.” To address these concerns, High Point requested that Sprint 

be ordered to produce “the whole ATLAS database from which the report was 

generated.”248

Sprint objected “that the ATLAS database in its entirety includes tremendous 

quantities of irrelevant information.” Rejecting this argument, the court explained that 

“High Point has raised sufficient questions regarding whether Sprint’s production of the 

spreadsheets generated from the ATLAS database includes all responsive information,” and 

that “Sprint’s only objection to this proposal appears to be that production of the database 

 

243 Id.

244 Id.

245 Id. at 304 (emphasis in original); see id. at 305 (agreeing that “[t]he information in the databases is 

central to the plaintiffs’ claims of gender discrimination in compensation, promotion, and evaluation”).

246 High Point SARL v. Sprint Nextel Corp., No. 09-2269, 2011 WL 4526770 (D. Kan. Sept. 28, 2011).

247 High Point SARL, 2011 WL 4526770, at *12.

248 Id.
70

would include large quantities of irrelevant information.” But “[t]his is not a persuasive 

argument against producing the ATLAS database.”

249

In other words, the court in High Point ordered production of the entire database, 

irrelevant information and all, in response to specific facts undermining confidence that 

Sprint was querying the database in a manner that would retrieve all of the relevant 

information requested by its adversary. Only in that context did the court find disclosure of 

the entire database to be appropriate. Rather than constituting a statement on the scope of 

relevance, this opinion represents a court exercising its discretionary power to ensure 

fairness between adversaries and completeness of their mutual disclosures. Moreover, 

obtaining a database that includes “large quantities of irrelevant information” is different 

from obtaining one that consists nearly entirely of irrelevant information — much less all 

such databases.

In another case cited by the government, Medtronic Sofamor Danek, Inc. v. Michelson, 

“the parties [did] not seriously dispute the relevance of the electronic data at issue.”250 The 

question was who would be required to shoulder the considerable burden and cost of 

converting discoverable electronic data held by the plaintiff into a usable format.251 The 

decision implicitly accepts that a party may request a “large volume of data” from the other 

party in discovery, and that such requests may return irrelevant materials along with those 

that prove to be relevant: it notes that the materials sought are relevant because they “may 

contain discoverable material, although neither party can estimate how much.”252 Thus, the 

decision illustrates the basic proposition that civil litigants may request large numbers of 

records in discovery with the intention of sifting through them for those that support their 

case. But there is no suggestion that the likely proportion of relevant to irrelevant material 

in that case even approached that in the NSA’s Section 215 program. Indeed, the parties 

“could not estimate” how much discoverable material was within the request. In contrast, 

the government knows in advance that virtually everything produced in response to the 

FISA court’s orders will be irrelevant.

The last case cited by the government, In re Adelphia Commc’ns Corp. has nothing to 

do with the permissible breadth of discovery or the meaning of the word “relevance.”253

There, the party seeking discovery wanted production of fewer documents, not more, and 

the court noted that it “does not endorse a method of document production that merely 

 

249 Id.

250 Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550, 553 (W.D. Tenn. 2003).

251 Id. at 552-53.

252 Id. at 553.

253 See In re Adelphia Commc’ns Corp., 338 B.R. 546 (Bankr. S.D.N.Y. 2005),
71

gives the requesting party access to a ‘document dump,’ with an instruction to the party to 

‘go fish.’”

254

In sum, it is clear that the “relevance” standard in civil discovery permits litigants to 

seek large batches of material even though some or even many of those materials may 

prove irrelevant. But the case law does not sanction requesting an entire class of records, 

without limit or any specific connection to the matter at hand, and with knowledge that 

only an infinitesimal portion of those records conceivably are pertinent. 

2. Relevance and Grand Jury Subpoenas 

The government has extraordinarily broad power to subpoena documents when 

investigating possible criminal activity with a grand jury. “The function of the grand jury is 

to inquire into all information that might possibly bear on its investigation until it has 

identified an offense or has satisfied itself that none has occurred. As a necessary 

consequence of its investigatory function, the grand jury paints with a broad brush.”255

Accordingly, a grand jury investigation “is not fully carried out until every available clue has 

been run down and all witnesses examined in every proper way to find if a crime has been 

committed.”256 The scope of its inquiry “is not to be limited narrowly by questions of 

propriety or forecasts of the probable result of the investigation, or by doubts whether any 

particular individual will be found properly subject to an accusation of crime.”257 When a 

subpoena is challenged on relevancy grounds, therefore, “the motion to quash must be 

denied unless the district court determines that there is no reasonable possibility that the 

category of materials the Government seeks will produce information relevant to the 

general subject of the grand jury’s investigation.”258 After all, “the decision as to what 

offense will be charged is routinely not made until after the grand jury has concluded its 

investigation,” and “[o]ne simply cannot know in advance whether information sought 

 

254 Id. at 551. In Adelphia, a bankruptcy trust conducting discovery against certain defendants objected 

when the defendants proposed to comply by “making their warehoused document archive available for 

inspection” by the trust — an archive containing “approximately 20,000 large bankers boxes of business 

records as well as over 600 boxes of business records deemed relevant to the various investigations 

underway.” The trust argued that Rule 34 does not allow production of requested materials “in the midst of a 

large quantity of un-requested, non-responsive materials.” Id. at 549. Instead, the trust argued that the 

defendants, rather than the trust, “should be forced to cull through the boxes and produce responsive 

documents.” Id. at 553. The court sided with the defendants, but on the condition that “any archived 

documents produced must be thoroughly indexed, the boxes accurately labeled and the depository kept in 

good order.” Id. at 551. A “document dump,” with instructions to “go fish,” was “emphatically not the situation 

presented to the Court in this matter,” where the defendants’ archive was “an orderly facility with neatly 

stacked rows of boxes organized by department and labeled as to content[.]” Id.

255 United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991) (emphasis added).

256 Id. (quoting Branzburg v. Hayes, 408 U.S. 665, 701 (1972) (emphasis added).

257 Branzburg, 408 U.S. at 688 (quoting Blair, 250 U.S. at 282).

258 R. Enterprises, Inc., 498 U.S. at 301.
72

during the investigation will be relevant and admissible in a prosecution for a particular 

offense.”259

“The investigatory powers of the grand jury are nevertheless not unlimited. Grand 

juries are not licensed to engage in arbitrary fishing expeditions, nor may they select 

targets of investigation out of malice or an intent to harass.”260 While a grand jury need not 

restrict its inquiry to admissible evidence, the Fourth Amendment “provides protection 

against a grand jury subpoena duces tecum too sweeping in its terms ‘to be regarded as 

reasonable.’”

261 And where a grand jury subpoena implicates the freedom of speech or 

association, some courts have required the government to demonstrate “a compelling 

interest in and a sufficient nexus between the information sought and the subject matter of 

its investigation.”262 “In sum, the fact that grand juries must have broad investigative 

powers does not resolve all questions of the permissible breadth and requisite specificity of 

a subpoena duces tecum.”263

To determine what might be the outer limits of a grand jury subpoena, we have 

examined both the cases cited by the government and others. There has never been a grand 

jury subpoena as broad as the FISA court’s Section 215 orders. And contrary to the 

government’s suggestion, the case law does not hold that the breadth of a grand jury 

subpoena is unlimited, but rather that a subpoena must be designed to address the 

circumstances of a specific investigation.

One decision, In re Grand Jury Proceedings, merely explains that district courts 

assessing the relevance of subpoenaed materials should not proceed “document-by-

 

259 Id. at 300; see United States v. Triumph Capital Grp., Inc., 544 F.3d 149, 168 (2d Cir. 2008) 

(“[S]ubpoenas duces tecum are often drawn broadly, sweeping up both documents that may prove decisive 

and documents that turn out not to be. This practice is designed to make it unlikely that a relevant document 

will escape the grand jury’s notice.”); 3 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE, § 8.8(b) (3d. ed.) 

(explaining that “the nature of the criminal activity [the grand jury] seeks to investigate often requires 

consideration of a substantial amount of information that will prove in the end to be irrelevant”); 1 SARA SUN 

BEALE ET AL., GRAND JURY LAW AND PRACTICE § 6:21 (2d ed.) (noting that relevancy objections “are almost 

universally overruled”).

260 R. Enterprises, Inc., 498 U.S. at 299 (internal citations omitted); see In re Grand Jury Proceedings, 616 

F.3d 1186, 1203 (10th Cir. 2010) (explaining that “fishing is permissible so long as it is not an arbitrary

fishing expedition” (emphasis in original)); Gher v. Dist. Court In & For Adams Cnty., 516 P.2d 643, 644 (Colo. 

1973) (quashing grand jury subpoena where district attorney attempted to use it as means of developing 

facts relating to municipal dispute that did not involve “any possible violation of criminal laws”).

261 United States v. Dionisio, 410 U.S. 1, 11 (1973) (quoting Hale v. Henkel, 201 U.S. 43, 76 (1906)).

262 In re Grand Jury Subpoenas Duces Tecum, 78 F.3d 1307, 1312 (8th Cir. 1996) (citing In re Grand Jury 

Proceeding, 842 F.2d 1229 (11th Cir. 1988), & Glass v. Heyd, 457 F.2d 562 (5th Cir. 1972)); accord Bursey v. 

United States, 466 F.2d 1059, 1083 (9th Cir. 1972)).

263 In re Grand Jury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291, 1297 (4th Cir. 1987); see Dionisio, 

410 U.S. at 11 (“This is not to say that a grand jury subpoena is some talisman that dissolves all constitutional 

protections.”).
73

document,” but should instead evaluate whether each “broad category” of requested 

materials could contain possibly relevant documents. The former approach would “unduly 

disrupt the grand jury’s broad investigatory powers” and force the government “to justify 

the relevancy of hundreds or thousands (or more) of individual documents, which it has 

not yet even seen[.]” Often the government “is not in a position to establish the relevancy 

with respect to specific documents,” because “it may not know the precise content of the 

requested documents” and “it may not know precisely what information is or is not 

relevant at the grand jury investigative stage.”264 Accepting the “incidental” production of 

irrelevant documents, when measured by the hundreds or thousands, does not support the 

legitimacy of the Section 215 calling records program, in which the NSA potentially collects 

billions of records per day with full knowledge that virtually all of them are irrelevant.265

The broadest grand jury subpoena that the government cites is In re Grand Jury 

Proceedings: Subpoenas Duces Tecum.

266 In that case, the Eighth Circuit upheld grand jury 

subpoenas for the records of all wire money transfers exceeding $1,000 sent during a twoyear period from a Western Union office at the Royalle Inn in Kansas City, Missouri. 

In rejecting the claim that the subpoenas were overbroad, the court stressed that 

only a single Western Union office was involved, and the “type of documents sought [was] 

precisely limited to those recording transactions of one thousand dollars or more occurring 

within a relatively short period of time.”267 As the decision explained, specific facts known 

to investigators pointed to the Royalle Inn office as a focal point for illegitimate, drugrelated money transfers.268

 

264 In re Grand Jury Proceedings, 616 F.3d 1186, 1200-03 (10th Cir. 2010); see also Triumph Capital 

Group, Inc., 544 F.3d at 168 (“Grand jury subpoenas duces tecum are customarily employed to gather 

information and make it available to the investigative team of agents and prosecutors so that it can be 

digested and sifted for pertinent matter. Before the subpoenas are issued, the government often does not 

have at its disposal enough information to determine precisely what information will be relevant.”).

265 In re Grand Jury Proceedings, 616 F.3d at 1204-05.

266 In re Grand Jury Proceedings: Subpoenas Duces Tecum, 827 F.2d 301 (8th Cir. 1987).

267 Id. at 304. The court also relied on the presumption of regularity that attaches to grand jury 

subpoenas, and that “one challenging a grand jury subpoena has the burden of showing irregularity.” Id. at 

304. This presumption distinguishes the grand jury context from Section 215, where the government bears 

an initial burden of providing a statement of facts showing reasonable grounds to believe that the items it 

seeks are relevant. See 50 U.S.C. § 1861(b)(2)(A).

268 See id. at 302 (“In particular, the agent’s affidavit stated that he had learned ‘from numerous sources 

that drug dealers are using Western Union to transfer funds from Kansas City to various locations including 

Florida, California, and out of the country.’ Further, the affidavit states that the agent had received 

information from the Kansas City, Missouri, Police Department that its Drug Enforcement Unit had discovered 

completed Western Union Money Transfer Applications during a search of ‘dope houses’ in the inner city. 

Jamaican nationals apparently operated these houses, and the applications revealed that funds were 

transmitted to the Miami area and Jamaica, both ‘well known centers of narcotics trafficking.’ The funds 

involved were wired from the Royalle Inn.”).
74

The court emphasized that it was “upholding the subpoenas only as against the 

fourth amendment and Federal Communications Act challenges” brought by Western 

Union, pointedly mentioning that nothing would bar the trial court, upon proper motion, 

from “limiting the subpoenas to matters having a greater degree of general relevance to the 

subject matter of the investigation.”269 Noting that the government already knew what 

types of documents it was seeking (“records of wire transfers by numerous individuals to 

various points around the country”), the Eighth Circuit even suggested that the trial court 

“may therefore wish to consider the extent to which the government would be able to 

identify in advance those patterns or characteristics that would raise suspicion. These 

might include wire transfers to or from individual suspects, transfers to certain locales 

known to be sources of high volumes of illegal drugs, or other particular patterns designed 

to focus on illegal activity without taking in an unnecessary amount of irrelevant 

material.”270 Such an inquiry, the court said, “is appropriate to protect against unduly 

encroaching upon the expectations of innocent customers that their financial records will 

be kept confidential.”271

The Western Union case does not support the expansive theory of relevance 

advanced in favor of the NSA’s calling records program. Even where the government’s 

request was limited to transactions over $1,000, during a limited period of time, in a single 

office that had a demonstrable connection to specific unlawful activity, the court still was 

concerned about the potentially unreasonable scope of the subpoenas and inadequate 

showing of relevance, and it offered suggestions on how to narrow even those subpoenas. 

The aspects of the subpoenas that the Eighth Circuit found troubling are multiplied 

exponentially under the NSA’s calling records program, which collects the entire nation’s 

calling records, for an indefinite period of time (renewed every ninety days since May 

2006), based only on the fact that terrorists use telephones.

3. Relevance and Administrative Subpoenas

The closest analogue to the power conferred by Section 215 is the administrative 

subpoena. Indeed, Congress crafted Section 215 as a substitute for the administrative 

subpoena authority sought by the Administration after the 9/11 attacks.272

An administrative agency may conduct an investigation even though it lacks 

probable cause to believe that any particular statute is being violated. Like a grand jury, it 

can “investigate merely on suspicion that the law is being violated, or even just because it 

 

269 Id. at 305.

270 Id. at 305-06.

271 Id. at 306.

272 See H.R. Rep. No. 107-236(I), at 61 (2001).
75

wants assurance that it is not.”273 The relevance requirement for administrative subpoenas 

derives from the statutes authorizing such subpoenas, inherent limits on the powers of 

administrative agencies, and the reasonableness requirement of the Fourth Amendment.274

“Although ‘a governmental investigation . . . may be of such a sweeping nature and so 

unrelated to the matter properly under inquiry as to exceed the investigatory power, it is 

sufficient if the inquiry is within the authority of the agency, the demand is not too 

indefinite and the information sought is reasonably relevant.’”

275

Therefore, “to be valid, an administrative subpoena must seek information that is 

‘reasonably relevant’ to the ‘general purposes of the agency’s investigation.’”

276 As with 

grand jury subpoenas, the materials sought “need only be relevant to the investigation —

the boundary of which may be defined quite generally.”277 This relevance determination 

“cannot be reduced to formula; for relevancy and adequacy or excess in the breadth of the 

subpoena are matters variable in relation to the nature, purposes and scope of the 

inquiry.”278 Courts generally “defer to the agency’s appraisal of relevancy,”279 and some 

have said that, to be outside the bounds of a subpoena, information sought must be “plainly 

incompetent or irrelevant to any lawful purpose” of the agency.280

 

273 United States v. Constr. Products Research, Inc., 73 F.3d 464, 470 (2d Cir. 1996) (quoting United States 

v. Morton Salt Co., 338 U.S. 632, 642-43 (1950)); see United States v. Powell, 379 U.S. 48, 57 (1964); Oklahoma 

Press Publishing Co., 327 U.S. at 201.

274 In United States v. Powell, which addressed the scope of the IRS Commissioner’s subpoena power, the 

Supreme Court first articulated a standard that has since been applied to administrative subpoenas generally: 

the Commissioner was required to “show that the investigation will be conducted pursuant to a legitimate 

purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the 

Commissioner’s possession, and that the administrative steps required by the Code have been followed.” 

Powell, 379 U.S. at 57-58 (emphasis added); see SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 741-42 (1984) 

(characterizing these four requirements as “the general standards governing judicial enforcement of 

administrative subpoenas”); Constr. Products Research, Inc., 73 F.3d at 471 (applying standards to evaluate 

reasonableness of Nuclear Regulatory Commission subpoena). 

275 United States v. Gurley, 384 F.3d 316, 321 (6th Cir. 2004) (quoting Morton Salt Co., 338 U.S. at 652 

(internal citation omitted)).

276 In re Sealed Case (Admin. Subpoena), 42 F.3d 1412, 1419 (D.C. Cir. 1994) (quoting Linde Thomson 

Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1516 (D.C. Cir. 1993)); accord In re 

McVane, 44 F.3d 1127, 1135 (2d Cir. 1995); NLRB v. Line, 50 F.3d 311, 314 (5th Cir. 1995).

277 FTC v. Invention Submission Corp., 965 F.2d 1086, 1090 (D.C. Cir. 1992) (emphasis in original).

278 Oklahoma Press Pub. Co., 327 U.S. at 208-09; see, e.g., FTC v. Turner, 609 F.2d 743, 745 (5th Cir. 1980) 

(“The relevance of an F.T.C. subpoena request is measured against the purpose and scope of its 

investigation.”).

279 In re Sealed Case, 42 F.3d at 1419; see RNR Enterprises, Inc. v. SEC, 122 F.3d 93, 97 (2d Cir. 1997) (“We 

defer to the agency’s appraisal of relevancy, which must be accepted so long as it is not obviously wrong.”).

280 Constr. Products Research, Inc., 73 F.3d at 472 (quoting Endicott Johnson, 317 U.S. at 509). 
76

Courts must “be careful,” however, not to make relevance requirements “a 

nullity.”281 It is not a valid purpose of a subpoena, for instance, to investigate “other 

wrongdoing, as yet unknown,” because such a broad mandate “makes it impossible . . . to 

determine whether the information demanded is ‘reasonably relevant.’”

282 And while the 

standards governing the permissible scope of administrative subpoenas are broad, they are 

not as expansive as the government suggests.

283

Because the relevance standard governing administrative subpoenas “cannot be 

reduced to formula” and varies along with “the nature, purposes and scope” of an 

investigation, here too recourse must be had to precedent involving analogous factual 

scenarios.284 And here, once again, the case law fails to buttress the legitimacy of the NSA’s 

telephone records program.

 

281 EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984); see id. at 72 (rejecting argument that “would render 

nugatory the statutory limitation of the Commission’s investigative authority to materials ‘relevant’ to a 

charge”).

282 In re Sealed Case, 42 F.3d at 1418. 

283 The government has suggested that the relevance standard in the administrative subpoena context 

“affords an agency ‘access to virtually any material that might cast light on the allegations’ at issue in an 

investigation.” Administration White Paper at 9 (quoting Shell Oil Co., 466 U.S. at 68-69). But the passage 

quoted from Shell Oil was addressed to subpoenas issue by the Equal Employment Opportunity Commission 

(“EEOC”), which fundamentally differ from most administrative subpoenas, because they confer access to 

materials only in connection with a specific charge of a violation that already has been filed. See Shell Oil Co., 

466 U.S. at 64 (“[T]he EEOC’s investigative authority is tied to charges filed with the Commission; unlike other 

federal agencies that possess plenary authority to demand to see records relevant to matters within their 

jurisdiction, the EEOC is entitled to access only to evidence ‘relevant to the charge under investigation.’” 

(quoting 42 U.S.C. § 2000e-8(a))). Other administrative subpoena statutes, similar to Section 215, permit 

discovery of materials relevant to investigations, which may not yet have coalesced around specific 

allegations or particular individuals. Thus, the broad standard articulated in Shell Oil — “virtually any 

material that might cast light on the allegations” — is from an anomalous context where the subpoena’s 

breadth is circumscribed by its link to specific charges already filed. See EEOC v. Randstad, 685 F.3d 433, 448 

(4th Cir. 2012) (“Once a charge has placed the Commission on notice that a particular employer is (or may be) 

violating Title VII or the ADA in a particular way, the Commission may access ‘virtually any material that might 

cast light on the allegations against the employer.’” (quoting Shell Oil Co., 466 U.S. at 68-69) (emphasis 

added)).

Similarly, the government has quoted a phrase from United States v. Arthur Young & Co., 465 U.S. 805, 

814 (1984), indicating that the IRS Secretary may obtain items “of even potential relevance to an ongoing 

investigation.’” Administration White Paper at 10. But the Court in Arthur Young was merely explaining that 

“an IRS summons is not to be judged by the relevance standards used in deciding whether to admit evidence 

in federal court,” and it used the adjective “potential” to acknowledge that the IRS “can hardly be expected to 

know whether such data will in fact be relevant until it is procured and scrutinized.” The agency, therefore, 

“should not be required to establish that the documents it seeks are actually relevant in any technical, 

evidentiary sense.” Arthur Young & Co., 465 U.S. at 814. The Court’s use of the phrase “potential relevance” 

here merely reaffirms the principles described earlier — that the government cannot always know in advance 

whether material is truly pertinent. It does not negate the more demanding requirement that “the 

information sought is reasonably relevant.” California Bankers Ass’n v. Shultz, 416 U.S. 21, 67 (1974) (quoting 

Morton Salt Co., 338 U.S. at 652-53 (emphasis added)).

284 Oklahoma Press Pub. Co., 327 U.S. at 209.
77

For example, the government quotes passages from Carrillo Huettel, LLP v. SEC that 

appear to echo the NSA’s rationale for obtaining bulk calling records. On closer 

examination, the similarity does not bear out. In Carrillo, the SEC subpoenaed the bank 

records of one law firm, requesting all of its trust account information over a two-year 

period. The request covered financial records not just for the firm’s forty-two clients 

already identified by the SEC as possibly implicated in the securities investigation, but the 

records for “all its clients,” of whom “100 or more” had not yet been identified or tied in 

any way to the investigation. Despite Carillo’s argument “that the subpoena will result in 

the production of financial records of many clients that are irrelevant to the investigation at 

issue,” the court enforced the subpoena.285

Two circumstances distinguish Carillo. First, the SEC was investigating not only the 

law firm’s clients but the firm itself — that is, the subpoena was issued to the target of the 

SEC’s investigation, unlike the situation with respect to the telephone companies covered 

by the NSA’s program. The SEC had “obtained evidence” that Carillo not only represented 

the entities and individuals being investigated but “may also be actively involved in the 

alleged violations.”286 And this was the context in which the SEC argued that it “cannot 

effectively trace money through accounts without having records of all transactions,” and 

that these records “may reveal concealed connections between unidentified entities and 

persons and those identified in the investigation thus far.”287 The government’s request 

was limited to a category of records — those of the Carillo firm — that it had a cognizable 

reason to suspect as a whole.

The second difference is in the proportion of relevant to irrelevant materials 

expected to be produced. Of the law firm’s roughly 150 clients, nearly a third had already 

been directly tied to the investigation. On the basis of these facts, the court determined 

that, “[o]n balance,” the subpoena satisfied the relevancy requirement: “Although not every

responsive document produced . . . may be relevant,” the court reasoned, “there is reason to 

believe that the records overall contain information relevant to the investigation.”288 This 

conclusion was simply an application of the principle that a subpoenas duces tecum can be 

valid even if it may return some irrelevant materials — not that it can be valid where 

virtually all of the requested materials will be irrelevant.

In another case, In re Subpoena Duces Tecum, the government successfully 

compelled a doctor suspected of health care fraud to produce more than 15,000 patient 

files, “consisting of between 750,000 and 1.25 million pages of material,” in spite of the 

 

285 Carrillo Huettel, LLP v. SEC, No. 11-65, 2011 WL 601369, at *1-2 (S.D. Cal. Feb. 11, 2011).

286 Id. at *1; see id. at *2 (“The SEC contends that Carrillo’s own conduct is at issue.”).

287 Id.

288 Id. (emphasis added).
78

doctor’s relevancy objection. The court explained that the “sheer volume of documents” 

could not be the sole criterion of reasonableness, and noted that the doctor had rejected 

the government’s offer of accommodation under which he could maintain many of the files, 

subject to the U.S. Attorney expressing a need to review them.289 The court also noted the 

government’s argument “that it would be ‘an oddity of jurisprudence’ if a physician with a 

high-volume, government-subsidized practice could avoid complying with such subpoenas, 

whereas a physician with a lower volume and therefore with a narrower potential scope of 

fraud would have to comply,” while observing that “to define the reasonableness of a 

subpoena based on the volume of items identified for production would be to require the 

government to ascertain, before issuing a subpoena, the extent of any wrongdoing. But 

ascertaining the extent of wrongdoing is itself a primary purpose for the issuance of the 

subpoena.”290

Like Carillo, this decision shows that volume alone does not doom a subpoena’s 

validity, and that some amount of over-collection is an inevitable byproduct of government 

investigations. But as in Carillo, the subpoena sought the records of an entity that was itself 

under investigation, and its broad reach reflected the government’s desire to investigate 

this entity’s conduct vis-à-vis the third parties to whom the records pertained. In both 

cases, the government’s request was defined, and limited, by the facts of the investigation 

at hand. And in both cases the government had an articulable reason to suspect that the 

category of records it sought, so defined, would include a significant proportion of records 

pertinent to the investigation. These cases might support collecting all of a telephone 

company’s calling records if, for instance, the company was suspected of fraudulently 

overbilling its customers — not because some of those customers might later turn out to be 

associated with an unrelated crime.

In sum, precedent involving relevance in the administrative subpoena context 

simply teaches the same lessons evident in the grand jury and civil discovery contexts, 

lessons that do not support the unbounded definition of relevance embodied in the FISA 

court’s approval of the Section 215 program.291

 

289 In re Subpoena Duces Tecum, 228 F.3d 341, 345, 350-51 (4th Cir. 2000).

290 Id. at 350-51.

291 The government also has cited two decisions for the proposition that “[f]ederal agencies exercise 

broad subpoena powers or other authorities to collect and analyze large data sets in order to identify 

information that directly pertains to the particular subject of an investigation.” Administration White Paper at 

10 (citing F.T.C. v. Invention Submission Corp., 965 F.2d at 1090, and Associated Container Transp. (Australia) 

Ltd. v. United States, 705 F.2d 53, 58 (2d Cir. 1983)). That broad proposition, and the cases cited, do not 

involve anything like the NSA’s telephone records program — in which all records of a particular type are 

collected indiscriminately and preemptively in order to facilitate later searches of an infinitesimal fraction of 

those records. Similarly, the government has invoked decisions involving warrants that permit computer 

hard drives to be copied and later searched for incriminating evidence, see id. at 10-11, but these cases, 

involving seizures based on a finding of probable cause, have little bearing on the meaning of “relevance.”
79

4. Expanding Relevance Beyond its Normal Legal Meaning

As illustrated above, precedent from other legal contexts involving the production of 

records does not support a concept of relevance like the one proffered by the government 

in support of the NSA’s bulk calling records program. To be sure, the case law regarding 

civil discovery, grand jury subpoenas, and administrative subpoenas shows that relevance 

is interpreted broadly, and that incidental production of unrelated materials is accepted as 

essential to enable fulsome investigative efforts. Standards of relevance thus permit parties 

and the government to engage in a degree of fishing, so long as it is not arbitrary or in bad 

faith. But the case law makes equally clear that the definition of relevance is not boundless. 

And no case that we have found supports the interpretation of relevance embodied in the 

NSA’s program.

Tacitly acknowledging that case law from analogous contexts is not adequate to 

support its position, the government suggests that Section 215 calls for “an even more 

flexible standard” of relevance.292 But none of the government’s arguments, in our view, 

supports a definition of “relevant” as broad as the one the government proffers.

First, had Congress wished to inscribe a standard of relevance in Section 215 even 

less exacting than those developed in analogous legal contexts, it could have done so. But 

contemporary statements from legislators, highlighted by the government itself, evince an 

intent to match Section 215 to the standards used in those contexts.293 The reference to 

grand jury subpoenas added to the statute in 2006 was meant to reassure those with 

concerns about the scope of Section 215 that the statute was consistent with practice in 

other fields.294

Second, the fact that Section 215 requires only “reasonable grounds to believe” that 

records sought are relevant to an “investigation,” as the government emphasizes, does not 

call for a different standard of relevance than the one used in all other contexts.295 By 

demanding only “reasonable grounds to believe,” rather than certainty, that items sought 

are relevant to an investigation, the statute ensures that Section 215 is consistent with the 

analogous civil and criminal contexts — where the requester need not show that every 

item sought actually is relevant in an evidentiary sense, but merely that the items 

 

292 See Administration White Paper at 11-13.

293 See Defendants’ Memorandum of Law, ACLU v. Clapper, at 23 (citing 152 Cong. Rec. S1598, 1606 

(Mar. 2, 2006) (statement of Sen. Kyl) (“We all know the term ‘relevance.’ It is a term that every court uses 

. . . . The relevance standard is exactly the standard employed for the issuance of discovery orders in civil 

litigation, grand jury subpoenas in a criminal investigation, and for each and every one of the 335 different 

administrative subpoenas currently authorized by the United States Code.”).

294 See 50 U.S.C. § 1861(c)(2)(D).

295 See 50 U.S.C. § 1861(b)(2)(A).
80

reasonably may be. The statute’s reference to a reasonable belief about the items requested 

shows that it contemplates the same scenario faced in the subpoena and discovery arenas: 

the government seeks a category of items that it reasonably suspects, but cannot be sure, 

includes material pertinent to its investigation. That scenario, and the legal standards that 

govern it, still require some factual correlation between the category of documents defined 

by the government and the circumstances of the investigation for which they are sought. 

Indeed, Section 215’s requirement of a “statement of facts” supporting the government’s 

belief underscores the importance of that context-specific inquiry. 

Thus, even if the qualifier “reasonable grounds to believe” imposes a lower burden 

of proof on the government than if the statute simply authorized production of “relevant” 

documents, Section 215 still embodies the assumption that specific facts will link the 

government’s investigation to the particular group of records it seeks. That assumption is 

incompatible with a continuously renewed request for the daily acquisition of all records of 

a particular type.

Third, the unique characteristics of national security investigations do not warrant 

interpreting “relevance” expansively enough to support the NSA’s program. The 

government argues, and we agree, that the scope of relevance varies based on the nature of 

the investigation to which it is applied.296 Accordingly, the government cites the 

“remarkable breadth” of the national security investigations with which Section 215 is 

concerned, as contrasted with ordinary criminal matters, and emphasizes that these 

investigations “often focus on preventing threats to national security from causing harm, 

not on the retrospective determination of liability or guilt for prior activities.”297

These valid distinctions, in our view, simply mean that the government will be able 

to make qualitative showings of relevance more often in national security investigations 

than in others. Because the government is investigating a broader scope of actors, over a 

longer period of time, across a wider geographic range, and before any specific offense has 

been committed, more information can be expected to be legitimately relevant to its efforts. 

Such considerations do not call for the wholesale elimination of relevance as a meaningful 

check on the government’s acquisition of items. 

Finally, the heightened importance of counterterrorism investigations, as compared 

with typical law enforcement matters, does not alter the equation. Items either are relevant 

to an investigation or they are not — the significance of that investigation is a separate 

matter. No matter how critical national security investigations are, therefore, some

articulable principle must connect the items sought to those investigations, or else the 

 

296 See Administration White Paper at 11.

297 Administration White Paper at 12.
81

word “relevant” is robbed of meaning. Congress added a relevance requirement to Section 

215 in 2006 knowing full well that the statute governs national security investigations. It 

cannot, therefore, have meant for the importance of such investigations to efface that 

requirement entirely. 298

In sum, we find the government’s interpretation of the word “relevant” in Section 

215 to be unsupported by legal precedent and a subversion of the statute’s manifest intent 

to place some restriction, albeit a generous and flexible one, on the scope of the items that 

can be acquired under its auspices.299

IV. Prospective Orders for Daily Disclosure of New Telephone Records

Every FISA court order renewing the bulk telephone records program puts 

telephone companies under a continuing obligation, over a period of ninety days, to 

provide the NSA with their newly generated calling records on a daily basis. In other words, 

when telephone companies receive an order from the FISA court, they are not directed to 

turn over whatever calling records they have in their possession at the time. Instead, every 

day for the next ninety days after receiving the order, they must furnish the NSA with the 

new calling records generated that day by their customers.

This arrangement differs from the normal practice that characterizes discovery 

between parties and the production of records in response to a subpoena. Typically, 

persons who receive a subpoena or court order must hand over documents already in their 

possession by a given date. They are not required to supply newly generated documents on 

a regular basis for a set period of time. Nor is this arrangement akin to the rolling 

production schedules sometimes approved by courts for the disclosure of records.300

Rolling schedules merely dictate when documents that are already in existence must be 

made available to the opposing party, allowing the disclosures to be spread over a period of 

 

298 Congress amended Section 215 to clarify that there must be reasonable grounds to believe that 

records obtained under the statute are “relevant to” an investigation, not merely sought “for” an 

investigation; it further required “a statement of facts” supporting that belief. See 50 U.S.C. § 1861(b)(2)(A). It 

inserted the concept of “relevance” into the statute not to broaden it, but to reassure those with concerns that 

the statute was tethered to concepts well known in other areas.

299 In analyzing the concept of relevance under Section 215, both the government and the FISA court 

have also cited the oversight mechanisms inscribed in the statute and devised for the bulk telephone records 

program that are not found in the analogous contexts of criminal or administrative subpoenas. See

Administration White Paper at 13; Amended Memorandum Opinion at 23. We do not see how these oversight 

mechanisms bear on whether items are relevant to an authorized investigation.

300 See, e.g., Global Client Solutions, LLC v. Executive Risk Indem., Inc., No. 13-0035, 2013 WL 4482992, at 

*1 (N.D. Okla. Aug. 19, 2013); Prism Technologies, LLC v. Research in Motion, Ltd., No. 08-0537, 2010 WL 

1254940, at *2 (D. Neb. Mar. 24, 2010); In re September 11 Litig., 236 F.R.D. 164, 167 (S.D.N.Y. 2006).
82

time. That concession to the limits of human resources fundamentally differs from 

establishing an ongoing daily obligation to furnish new materials as they are created. 

The government has offered a statutory defense of this practice.

301 But we conclude

that it contravenes Section 215 for three reasons. First, the statute does not purport to 

authorize such orders, and case law involving the production of records in analogous 

contexts indicates that such authority cannot be inferred from statutory silence. Second, 

the text of Section 215 strongly suggests that it contemplates only the acquisition of items 

that already are in existence at the time the court issues an order. Third, interpreting 

Section 215 to permit the prospective collection of telephone records renders superfluous 

another provision of FISA that directly authorizes such collection — circumventing the 

limitations associated with that other provision and violating the interpretive principle that 

one provision in a statute should not be construed to make another superfluous.

For the reasons explained below, therefore, we believe that the language of Section 

215 cannot support the government’s interpretation on this matter. In our view,

acceptance of that interpretation plays a key role in transforming the function of Section 

215 — from a means of gathering business records for intelligence investigations (in a 

manner similar to the use of subpoenas in other types of investigations) into an ongoing 

surveillance tool. 

A. Absence of Express or Implied Authorization

No language in Section 215 purports to authorize the FISA court to issue orders 

requiring the ongoing daily production of records not yet in existence. The government 

does not contend that any such language exists. Instead, it emphasizes the lack of an 

explicit prohibition against such orders and argues that the prospective production of 

records has been deemed appropriate in analogous contexts.302 While the government 

highlights case law from two contexts in support of that argument, neither supports the 

issuance of Section 215 orders that prospectively require the daily disclosure of new 

records as they are generated.

The first set of cases to which the government points arise in civil discovery, where

a party has been directed by a subpoena to produce materials by a deadline, the so-called 

return date of the subpoena. As the government notes, “courts have held that the Federal 

Rules of Civil Procedure give a court the ‘authority to order [the] respondent to produce 

materials created after the return date of the subpoena.’”

303

 

301 See Administration White Paper at 16.

302 See Administration White Paper at 16.

303 Administration White Paper at 16 (quoting Chevron v. Salazar, 275 F.R.D. 437, 449 (S.D.N.Y. 2011)).
83

These decisions, however, do not involve the type of obligation imposed by the FISA 

court under Section 215 — directing a party to produce as-yet-nonexistent records on an 

ongoing basis for a set period of time. Instead, they involve situations in which a party was 

ordered by the court to supplement its prior disclosures after the return date of a 

traditional subpoena. The decisions acknowledge that under Rule 26(e) of the Federal 

Rules of Civil Procedure, entitled “Supplementing Disclosures and Responses,” courts may 

order parties to supplement or correct their disclosures after the subpoena’s return 

date.304 And the decisions further recognize that the power “to order a respondent to 

supplement or correct its disclosure or response to a subpoena . . . includes the authority to 

order a respondent to produce materials created after the return date of the subpoena.”305

This conclusion rests on “the plain language” of Rule 26(e).306 At the time of a 

supplementary court order issued under Rule 26(e), therefore, the documents ordered to 

be produced already exist. They merely did not exist on the original date that disclosures

were due. 

All that these decisions illustrate, in other words, is that the civil rules contain a 

specific provision authorizing courts to order parties to supplement or correct their existing 

discovery responses, even after the return date of a subpoena. This does not imply that a 

valid subpoena may, in the first instance, require the ongoing daily production of newly 

generated records for the duration of a specified period. And therefore these decisions 

provide no basis for inferring that Section 215 implicitly authorizes the FISA court to 

impose such an obligation.

Second, the government discerns support for its position in decisions holding that a 

provision in the Stored Communications Act (“SCA”) permits orders for the prospective 

disclosure of records.

307 These decisions involve the prospective disclosure of a particular 

type of telephone metadata — cell site location information. But the courts that have 

approved prospective orders for cell site location information have done so through a socalled “hybrid theory” that invokes “the combined authority of the Pen Register Statute and 

the Stored Communications Act.”308 Under this hybrid theory, the Pen Register and Trap 

 

304 See FED. R. CIV. P. 26(e)(1)(B) (“A party who has made a disclosure under Rule 26(a) — or who has 

responded to an interrogatory, request for production, or request for admission — must supplement or 

correct its disclosure or response . . . as ordered by the court.”).

305 Chevron, 275 F.R.D. at 449 (citing United States v. IBM Corp., 83 F.R.D. 92, 96 (S.D.N.Y. 1979) (internal 

quotation marks omitted)).

306 IBM Corp., 83 F.R.D. at 96.

307 See Administration White Paper at 16 (citing In re Application of the United States for an Order 

Authorizing the Use of Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d 202, 207 n.8 (E.D.N.Y. 2008)).

308 In re Application of United States for an order relating to Target Phone 2, 733 F. Supp. 2d 939, 941 

(N.D. Ill. 2009).
84

and Trace Statute309 provides the authority to install a pen register or trap and trace device 

that prospectively records call detail information. But because a different statute prohibits 

the acquisition of cell site location information “solely” under the pen register/trap and 

trace authority, courts must rely also “on some additional statutory authority when 

ordering the disclosure of prospective cell site information under the Pen Register 

Statute.”310 Under the hybrid theory, the SCA serves as that additional authority, as it 

permits the government to obtain records from telephone companies and other electronic 

communications service providers.311 In accepting this hybrid theory, some courts have 

concluded that the language of the SCA is compatible with orders for the prospective 

disclosure of records as they are created.312 It is this conclusion to which the government 

points in support of its Section 215 argument.

Regardless of the merits of the hybrid theory — which “the majority of courts” have 

rejected313 — it does not support the government’s argument regarding Section 215. To the 

contrary, it rebuts that argument. 

First, the hybrid theory depends on the contribution of the pen register statute, 

which provides the affirmative authorization (and means) to collect telephone metadata 

prospectively. The SCA plays only the “supporting role” of allowing a particular type of data, 

cell site location information, to be included within that collection.314 In the context of the 

NSA’s program, however, no companion statute is being used in combination with Section 

 

309 18 U.S.C. §§ 3121 et seq.

310 In re Application of U.S. for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 

460 F. Supp. 2d 448, 454 (S.D.N.Y. 2006).

311 See id. (explaining the hybrid theory). The premise of this theory “is that the Stored Communications 

Act will be used in combination with the Pen Register Statute[.]” Id. at 459 (emphasis in original).

312 See, e.g., Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d at 207 & n.8 (“Because the SCA in 

no way limits the ongoing disclosure of records to the Government as soon as they are created, the cell-site 

information the Government seeks is subject to disclosure to the Government[.]”).

313 In re Application of U.S. for an order relating to Target Phone 2, 733 F. Supp. 2d 939, 940 44 & n.1 

(N.D. Ill. 2009) (citing decisions); see Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d at 204 (“Courts 

are divided, with a majority denying the Government’s requests.”). Courts in the majority have disagreed with 

the precise argument on which the government here relies — that the text of the SCA is compatible with 

prospective disclosure orders. See In re Application of U.S. for an Order for Prospective Cell Site Location Info. 

on a Certain Cellular Tel., 460 F. Supp. 2d 448, 459 (S.D.N.Y. 2006) (“A number of the magistrate judges to 

address this question have held that Section 2703, although it might cover historical cell site data, does not 

authorize the disclosure of such data on a ‘real-time’ or forward-looking basis.”) (citing decisions). 

314 See Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d at 459 (“The Stored 

Communications Act is being asked to play only the supporting role of providing the required additional 

authorization for the disclosure of information already permitted by the Pen Register Statute.”).
85

215 to provide an affirmative source of authority for the prospective collection of 

records.315

Second, merely because the SCA might be compatible with orders that prospectively 

require the disclosure of new records does not mean that Section 215 is compatible with 

such orders. Section 215 has its own unique language, which, as discussed below, suggests 

that it authorizes only the production of already existing records. And unlike the SCA, 

Section 215 is part of a broader statutory scheme under FISA that provides a framework 

for the prospective collection of telephone metadata when specific conditions are met; its 

language must be construed in that broader statutory context.316

In sum, the case law discussed above offers no basis for discerning implied 

authority under Section 215 for prospective disclosure orders. The analogies cited by the 

government actually show that a statutory obligation to disclose business records is not 

enough to require the prospective, daily disclosure of such records. Some additional 

authority is needed, which is lacking here. 

B. Language Suggesting Incompatibility with Prospective Orders

Apart from the lack of express or implied authority in Section 215 for orders that 

require the disclosure of newly created records prospectively, the text of the statute 

suggests that such orders are not within its scope. First, Section 215 permits the FISA court 

to issue orders “approving the release of tangible things.”317 Approving an item’s release —

“the act or an instance of liberating or freeing (as from restraint)”318 — implies removing 

barriers to the disclosure of something that already exists. 

More tellingly, a production order under Section 215 must “include the date on 

which the tangible things must be provided, which shall allow a reasonable period of time 

within which the tangible things can be assembled and made available.”319 By referring to 

“the date,” in the singular, “on which” the tangible things must be provided, the statute 

suggests that the requested materials will be turned over on a single date — not “on an 

 

315 If statutory silence implied a grant of authority for prospective disclosure orders, then the SCA would 

alone permit the government to acquire a telephone company’s new calling records every day, making the 

government’s recourse to the hybrid theory unnecessary.

316 Objections to the hybrid theory have been based on considerations unique to the language of the SCA, 

such as the requirement that records be “stored” and the statute’s definition of “electronic communication.” 

See Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d at 459; Two Pen Register & 

Trap & Trace Devices, 632 F. Supp. 2d at 207; Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 

F. Supp. 2d at 460. The dismissal of those objections by some courts sheds no light on the (different) language 

of Section 215, discussed below.

317 50 U.S.C. § 1861(c)(1) (emphasis added).

318 MERRIAM WEBSTER ONLINE DICTIONARY (2013). 

319 50 U.S.C. § 1861(c)(2)(B).
86

ongoing daily basis” for a period of ninety days.320 Furthermore, the fact that the statute 

permits a reasonable period of time in which the items “can be assembled and made 

available” further signals an expectation that the items already exist, but that time may be 

needed to marshal them for delivery. 

Notably absent from Section 215 is any language for situations in which the items to 

be disclosed have not yet been created. Where Congress has expressly authorized 

prospective orders, either through electronic surveillance or the use of pen registers, it has 

set forth limits and procedures regarding the permissible scope and duration of those 

orders. Such limits and procedures are conspicuously missing from Section 215, indicating

that Congress did not intend Section 215 to be used in this way.

C. Incompatibility with FISA as a Whole

Even if Section 215 were compatible with orders for the prospective disclosure of 

items that do not yet exist, orders requiring the daily disclosure of new telephone calling 

records are inconsistent with the structure of FISA as a whole. A different portion of that

statute directly authorizes the prospective collection of telephony metadata through pen 

registers or trap and trace devices.321 Construing Section 215 to permit ongoing acquisition 

of the very same data renders FISA’s pen register provision superfluous. It also allows the 

government to evade the limitations in that provision that govern such prospective 

monitoring. 

Under FISA’s pen register provision, the government may apply for an order

authorizing the installation and use of a pen register or trap and trace device in a 

counterterrorism investigation.322 Such devices capture the same dialing, routing, and 

addressing information that is included in the calling records obtained by the NSA under 

Section 215 — the date, time, and duration of calls, along with the participating telephone 

numbers.323 Orders approving the use of these devices generally must be renewed after 

ninety days.324

 

320 Primary Order at 3, In re Application of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things, No. BR 13-158 (Oct. 11, 2013) (“Primary Order”).

321 See 50 U.S.C. § 1842.

322 See 50 U.S.C. § 1842(a)(1).

323 See 18 U.S.C. § 3127(3), (4). FISA’s pen register provision also permits the government to request and 

obtain customer or subscriber information related to the telephone line or other facility to which the device is 

to be applied. See 50 U.S.C. § 1842(d)(2)(C). When the government obtains calling records under Section 215, 

however, it can obtain customer or subscriber information about particular numbers through several means 

under the Electronic Communications Privacy Act. See 18 U.S.C. § 2703(c).

324 See 50 U.S.C. § 1842(e)(1) (establishing ninety-day limit). If a government applicant certifies that the 

information likely to be obtained from the device is foreign intelligence information not concerning a U.S. 

person, orders may last up to a year. 50 U.S.C. § 1842(e)(2).
87

Construing Section 215 to authorize orders directing the daily transmission of the 

same information for ninety-day periods renders FISA’s pen register provision redundant. 

“The Government’s reading is thus at odds with one of the most basic interpretive canons, 

that ‘[a] statute should be construed so that effect is given to all its provisions, so that no 

part will be inoperative or superfluous, void or insignificant[.]’”

325

Interpreting Section 215 in this way also circumvents language in FISA’s pen 

register statute that restricts the use of such devices to individually targeted persons, 

telephone lines, or facilities. Orders issued under the auspices of the pen register provision 

must specify the identity, if known, of “the person” who is the subject of the investigation 

and the identity, if known, of “the person” to whom is leased or in whose name is listed “the 

telephone line or other facility” to which the pen register or trap and trace device is to be 

applied.326 Any order also must specify “the attributes of the communications to which the 

order applies,” such as “the number or other identifier” for the account or phone line with 

which the device will be used.327

This language calls for a nexus between a government investigation and the 

particular telephone line or facility from which the government seeks to acquire telephony

metadata. The government’s interpretation of Section 215 renders that requirement a 

nullity, essentially permitting pen registers to be installed on every telephone line in the 

country, based on an expectation that this practice will, in the aggregate, produce 

information that is relevant to the government’s investigations. Because Section 215 must 

be construed so as to be in harmony with FISA as a whole, such an interpretation is 

unsustainable.

V. Acquisition of Records by the NSA 

Under the Section 215 bulk telephone records program, the NSA acquires a massive 

number of calling records from telephone companies each day, potentially including the 

records of every call made across the nation. Yet Section 215 does not authorize the NSA to 

acquire anything at all. Instead, it permits the FBI to obtain records for use in its own 

investigations. If our surveillance programs are to be governed by law, this clear 

 

325 Corley v. United States, 556 U.S. 303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)); see 

Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1178 (2013) (stating that “the canon against surplusage is 

strongest when an interpretation would render superfluous another part of the same statutory scheme”). 

Although “[t]here are times when Congress enacts provisions that are superfluous,” Corley, 556 U.S. at 325 

(Alito, J., dissenting), there is no reason to suspect that Congress intended such redundancy here.

326 50 U.S.C. § 1842(d)(2)(A)(i), (ii).

327 50 U.S.C. § 1842(d)(2)(A)(iii).
88

congressional determination about which federal agency should obtain these records must 

be followed.

Section 215 expressly allows only the FBI to acquire records and other tangible 

things that are relevant to its foreign intelligence and counterterrorism investigations. Its 

text makes unmistakably clear the connection between this limitation and the overall 

design of the statute. Applications to the FISA court must be made by the director of the FBI 

or a subordinate.328 The records sought must be relevant to an authorized FBI 

investigation.329 Records produced in response to an order are to be “made available to,” 

“obtained” by, and “received by” the FBI.330 The Attorney General is directed to adopt 

minimization procedures governing the FBI’s retention and dissemination of the records it 

obtains pursuant to an order.331 Before granting a Section 215 application, the FISA court 

must find that the application enumerates the minimization procedures that the FBI will 

follow in handling the records it obtains.332

These features of the statute are bound up with its purpose. As the government 

acknowledges: “Section 215 was enacted because the FBI lacked the ability, in national 

security investigations, to seek business records in a way similar to its ability to seek 

records using a grand jury subpoena in a criminal case or an administrative subpoena in 

civil investigations.”333 Because records sought under Section 215 must be requested by 

FBI officials, on the grounds that they are relevant to FBI investigations, and with promises 

made about the procedures that the FBI will follow in handling them, those records are to 

be obtained by the FBI, a point to which the statute makes reference five times.334

Under the bulk telephone records program, however, the FBI does not receive any 

records in response to the FISA court’s orders. While FBI officials sign every application 

seeking to renew the program, the calling records produced in response to the court’s 

orders are never “made available to the Federal Bureau of Investigation” or “received by 

 

328 50 U.S.C. § 1861(a)(1), (a)(3).

329 50 U.S.C. § 1861(b)(2)(A), (c)(1).

330 50 U.S.C. § 1861(b)(2)(B), (d)(1), (d)(2)(B), (g)(1), (h).

331 50 U.S.C. § 1861(g)(1).

332 50 U.S.C. § 1861(b)(2)(B), (c)(1).

333 Administration White Paper at 6 n.2. The legislative history of what ultimately became Section 215 

supports the government’s assertion about its purpose. See H.R. Rep. No. 107-236(I), at 61 (2001) (“The 

Administration had sought administrative subpoena authority without having to go to court. Instead, section 

156 amends title 50 U.S.C. § 1861 by providing for an application to the FISA court for an order directing the 

production of tangible items such as books, records, papers, documents and other items upon certification to 

the court that the records sought are relevant to an ongoing foreign intelligence investigation.” (emphasis 

removed)).

334 See 50 U.S.C. § 1861(b)(2)(B), (d)(1), (d)(2)(B), (g)(1), (h).
89

the Federal Bureau of Investigation,” as called for by the statute.335 Instead, the FISA court’s 

orders specifically direct telephone companies to “produce to NSA” their calling records —

thwarting congressional intentions regarding the role each agency is to play in 

counterterrorism efforts that involve the collection of information within the United States 

about Americans.

336

In compliance with the FISA court’s orders, telephone companies that are subject to 

this program transmit their calling records to the NSA. The records are not delivered to the 

FBI and are never passed on to the FBI by the NSA. Instead, the NSA stores the records in 

its own databases, conducts its own analysis of them, and provides reports to various 

federal agencies — including but not limited to the FBI — with information about 

telephone communications that “the NSA concludes have counterterrorism value.”337 While 

these reports are based on information derived from the calling records, the records 

themselves stay with the NSA. Indeed, the NSA is ordered by the FISA court to “store and 

process” those records “in repositories within secure networks under NSA’s control.”338

What’s more, the NSA is prohibited from sharing with the FBI information that it 

derives from the calling records it obtains, except under conditions outlined in the FISA 

court’s orders.339 Among those conditions, the NSA may share information with the FBI 

that contains information about U.S. persons only if designated NSA officials (not the FBI 

agents who are conducting the investigations to which the records are supposed to be 

relevant) determine that the information “is in fact related to counterterrorism information 

and that it is necessary to understand the counterterrorism information or assess its 

importance.”340 The NSA must even file monthly reports with the FISA court listing every 

instance during the previous month in which the NSA shared such information with any 

entity, including the FBI.341

The fact that the NSA, not the FBI, obtains the records produced causes the program 

to depart from the statute in another, related manner. Section 215 requires that any 

 

335 50 U.S.C. § 1861(b)(2)(B), (h).

336 Primary Order at 3.

337 Shea Decl. ¶ 16; see Primary Order at 4 (referring to “any information the FBI receives as a result of 

this Order (information that is disseminated to it by NSA)”) (emphasis added).

338 Primary Order at 4.

339 See Primary Order at 6 n.5 (“NSA personnel shall not disseminate BR metadata outside the NSA 

unless the dissemination is permitted by, and in accordance with, the requirements of this Order that are 

applicable to the NSA.”).

340 Primary Order at 13; see id. at 16-17.

341 Primary Order at 16 (“Each report shall include a statement of the number of instances since the 

preceding report in which NSA has shared, in any form, results from queries of the BR metadata that contain 

United States person information, in any form, with anyone outside NSA.” (emphasis added)).
90

records obtained through a FISA court order be handled according to “specific 

minimization procedures” adopted by the Attorney General to govern the “retention and 

dissemination by the Federal Bureau of Investigation” of the items or information it 

receives.342 Before granting an application under Section 215, a FISA court judge must find 

that the application provides “an enumeration of the minimization procedures adopted by 

the Attorney General . . . that are applicable to the retention and dissemination by the 

Federal Bureau of Investigation of any tangible things to be made available to the Federal 

Bureau of Investigation based on the order requested in such application.”343

Because the FBI does not receive anything from the telephone companies, it is 

impossible for the FISA court to make this finding. The court’s orders therefore finesse the 

statutory language by stating that “the Court finds . . . [t]he application includes an 

enumeration of the minimization procedures the government proposes to follow with 

regard to the tangible things sought.”344 The orders then set forth detailed minimization 

procedures for the NSA to follow with regard to the calling records it obtains.345 As a result, 

despite Congress’ clear direction that one agency’s minimization procedures must be 

followed (the FBI’s), the current process substitutes another agency’s procedures (the 

NSA’s).

In sum, the bulk telephone records program violates the requirement that records 

produced in response to a Section 215 order are to be obtained by the FBI, not the NSA, and 

that their retention and dissemination is to be governed by rules approved specifically for 

the FBI’s handling of those items. Those requirements are integral to the overall design of 

the statute, under which records can be obtained only when they are relevant to a specific 

FBI investigation. As the operation of this program illustrates, allowing the NSA to acquire 

calling records in bulk and subject them to the tools it possesses for mass data analysis 

significantly expands the nature and scope of the activity authorized by Section 215. 

By no means are we suggesting that the NSA should not be allowed to collaborate 

with the FBI on its investigations. To the contrary, their partnership can be critical in 

linking the Signals Intelligence collected by the former with the latter’s efforts to disrupt 

terrorist attacks. The perils of inadequate cooperation among different agencies tasked 

with combating terrorism is a lesson learned from 9/11. But that cooperation must be 

 

342 50 U.S.C. § 1861(g)(1).

343 50 U.S.C. § 1861(b)(2)(B) (emphasis added); see id. § 1861(c)(1).

344 Primary Order at 2 (emphasis added).

345 See Primary Order at 4-16. Regarding the FBI, the FISA court’s orders set rules only for “any 

information the FBI receives as a result of this Order . . . information that is disseminated to it by NSA[.]” 

Primary Order at 4. With respect to such information, the orders direct that “the FBI shall follow as 

minimization procedures the procedures set forth in The Attorney General’s Guidelines for Domestic FBI 

Operations (September 29, 2008).” Id.
91

rooted in the law. We are simply asking whether this specific statute, as written, authorizes 

the NSA to undertake this specific counterterrorism program, as presently conducted. We 

conclude that the statute does not provide that authorization. Permitting the NSA to 

acquire domestic, international, and foreign telephone records in bulk under Section 215 

allows the statute to be used for a fundamentally different — and far broader — purpose 

than the one indicated by its text: enabling the FBI to obtain records that are relevant to 

specific investigations being conducted by the Bureau.346

VI. Violation of the Electronic Communications Privacy Act 

In addition to concluding that the NSA’s bulk telephone records program is 

unauthorized by Section 215, we also believe that it violates the Electronic 

Communications Privacy Act (“ECPA”).

ECPA limits the circumstances under which a telephone company or other 

electronic communication service provider may divulge records about its customers.347

Apart from certain enumerated exceptions, a provider “shall not knowingly divulge a 

record or other information pertaining to a subscriber to or customer of such service . . . to 

any governmental entity.”348 These enumerated exceptions, among others, include 

situations in which the government secures a warrant, obtains a court order under ECPA, 

or utilizes a subpoena.349 But the statute does not authorize telephone companies to 

disclose customer information to the government in response to an order issued under 

Section 215.350

In late 2008, the government submitted an application to the FISA court seeking to 

renew the NSA’s bulk telephone records program. This application was the first in which 

the government identified ECPA as potentially bearing on whether the FISA court properly 

 

346 The disjunction between Section 215 and the telephone records program is further illustrated by the 

fact that the FBI already has the power to obtain telephone records that are relevant to its counterterrorism 

investigations, through so-called national security letters authorized by the Electronic Communications 

Privacy Act. See 18 U.S.C. §§ 2703(c), 2709. The Bureau makes extensive use of that power, and the purpose of 

Section 215, as the government has acknowledged, was to furnish the FBI with a more global subpoena-like 

authority that would cover the many types of records for which no subpoena authority existed.

347 See 18 U.S.C. § 2702(c). These provisions fall within a portion of ECPA called the Stored 

Communications Act.

348 18 U.S.C. § 2702(a)(3).

349 See 18 U.S.C. §§ 2702(c), 2703(c).

350 See id.
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could issue orders under Section 215 directing telephone companies to disclose their 

calling records to the NSA.351

The FISA court concluded that its orders authorizing the NSA’s program were 

consistent with ECPA. In reaching this conclusion, the court first determined that the terms 

of Section 215 and ECPA were in tension. Both statutes could not both be given “their full, 

literal effect,” wrote the court, because Section 215 authorizes the production of “any 

tangible things,” and applying the prohibitions of ECPA would limit the meaning of the 

word “any.”352

The court then reasoned as follows. Observing that ECPA’s prohibition on 

disclosures includes an exception for “national security letters” issued pursuant to 18 U.S.C. 

§ 2709, the court stated that it would have been “anomalous” for Congress to permit this 

exception while making no comparable exception for Section 215 orders. This is so, the 

court wrote, because Section 215 requires a judge to agree with the government’s 

assessment that items being sought are relevant to an investigation, whereas national 

security letters merely require the FBI to certify that the items sought are relevant. 

Therefore, the court concluded, ECPA should be interpreted to contain an implicit 

exception for orders issued under Section 215.353 The FISA court’s reasoning was adopted 

recently in a decision from the Southern District of New York.354

While we acknowledge that the matter is not free from doubt, we believe that these 

decisions are wrong. “[I]t is a commonplace of statutory construction that the specific 

governs the general,” the Supreme Court has said.355 “That is particularly true where . . . 

Congress has enacted a comprehensive scheme and has deliberately targeted specific 

problems with specific solutions.”356 It would be difficult to imagine a more appropriate 

place to apply that principle than here. ECPA sets forth a detailed, multi-faceted set of 

provisions governing privacy in stored electronic communications and in records about the 

customers of electronic communication service providers. This comprehensive scheme 

 

351 See Supplemental Opinion at 1, In re Production of Tangible Things, No. BR 08-13 (FISA Ct. Dec. 12, 

2008).

352 Supplemental Opinion at 1-2.

353 See Supplemental Opinion at 4-5.

354 Memorandum & Order at 26-28, ACLU v. Clapper, No. 13-3994 (S.D.N.Y. Dec. 27, 2013). That court 

also reasoned that ECPA does not present a problem because “Section 215 authorizes the Government to seek 

records that may be obtained with a grand jury subpoena,” and “Section 215 orders are functionally 

equivalent to grand jury subpoenas.” Id. at 27.

355 RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012) (quoting Morales v. 

Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)); see HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981) 

(stating that “a specific statute . . . controls over a general provision”).

356 RadLAX Gateway Hotel, LLC, 132 S. Ct. at 2071 (quoting Varity Corp. v. Howe, 516 U.S. 489, 519 (1996) 

(Thomas, J., dissenting) (quotation marks omitted).
93

directly targets the problem of when the government may gain access to such records and 

provides specific solutions, including court orders issued pursuant to 18 U.S.C. § 2703(d) 

and national security letters sent pursuant to 18 U.S.C. § 2709. The terms of Section 215, in 

contrast, could not be more general, simply referencing “any tangible things (including 

books, records, papers, documents, and other items).”357

As the FISA court acknowledged, the very statute that created Section 215, the 

Patriot Act, also amended ECPA “in ways that seemingly re-affirmed that communications 

service providers could divulge records to the government only in specified circumstances” 

— without including FISA court orders issued under Section 215.358 The fact that the same 

statute both created Section 215 and amended ECPA, but without adding an exception to 

ECPA for Section 215 orders, undermines the notion that ECPA and Section 215 are in 

conflict, and provides an additional basis for strictly adhering to ECPA’s prohibitions by not 

inferring unwritten exceptions to those prohibitions. It also demonstrates that another 

fundamental canon of statutory construction applies here — that the inclusion of some 

implies the exclusion of others not mentioned.359 “Where there is an express exception, it 

comprises the only limitation on the operation of the statute and no other exceptions will 

be implied.”360 Congress did not add an exception to ECPA for Section 215 orders, even 

though it amended ECPA in other ways at the same time that it created Section 215. That 

omission should be respected.

 

357 Before the Patriot Act substituted the phrase “any tangible things,” FISA’s business records statute 

permitted the government to obtain four specific types of records, one of which was records from a “common 

carrier.” Since that term can include telephone companies, the statute offered somewhat more specificity in 

its pre–Patriot Act state, but it was still considerably more general than ECPA.

358 Supplemental Opinion at 3. As the FISA court noted, legislative history indicates that before the 

passage of the Patriot Act, at least one senator was concerned that Section 215’s reference to “any tangible 

things” would “effectively trump” federal and state privacy protections. See 147 CONG. REC. 19,530 (2001) 

(statement of Sen. Feingold). Without discussion, the Senate tabled an amendment offered by Senator 

Feingold that was meant to “make[] it clear that existing Federal and State statutory protections for the 

privacy of certain information are not diminished or superseded by section 215.” Id. The Senate’s rejection of 

this amendment could have signaled a desire for Section 215 to override those other statutes, as Senator 

Feingold feared, or it could have reflected disagreement that Section 215’s language could possibly be 

interpreted so broadly. There are no statements shedding any light on the motivation of the senators who 

voted to reject the amendment. Such ambiguous legislative history does not warrant ignoring the clear 

statutory text of ECPA and the basic canons of statutory construction that counsel in favor of adhering to it. 

See Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1266 (2011) (“Those of us who make use of legislative history 

believe that clear evidence of congressional intent may illuminate ambiguous text. We will not take the 

opposite tack of allowing ambiguous legislative history to muddy clear statutory language.”).

359 Or: “Expressio unius est exclusio alterius.” Leatherman v. Tarrant Cnty. Narcotics Intelligence & 

Coordination Unit, 507 U.S. 163, 168 (1993).

360 Copeland v. Toyota Motor Sales U.S.A., Inc., 136 F.3d 1249, 1257 (10th Cir. 1998) (quoting NORMAN J.

ZINGER, 2A SUTHERLAND’S STATUTES AND STATUTORY CONSTRUCTION § 47.11 (5th ed. 1992)).
94

The only apparent basis for permitting the general language of Section 215 to 

override the comprehensive and specific language of ECPA is a judgment about what it 

would have been logical for Congress to have enacted. The FISA court decided that 

Congress could not have intended to permit the government to obtain telephone calling 

records through a national security letter, which requires only an executive branch 

certification of relevance, while prohibiting the government from obtaining the same 

records through Section 215, which requires a court to agree with the government’s 

assessment of relevance.361

But there very well may be legitimate reasons to have included an exception in 

ECPA for national security letters but not for Section 215 orders. Because Congress appears 

to have intended Section 215 to allow the FBI to obtain types of records it could not already 

obtain, it may have expected that the various national security letter statutes would 

continue to cover the specific categories of data to which they relate (telephone metadata 

in the case of ECPA), and that Section 215 would apply to any other categories of records. 

Moreover, whereas Section 215 demands only reasonable grounds to believe that items 

sought (of whatever kind) are relevant to an investigation, the national security letter 

statute requires a more specific certification “that the name, address, length of service, and 

toll billing records” being sought are relevant.362

More fundamentally, however, we do not believe that courts should interpret 

statutes like ECPA based on their assessment of what would have been sensible for 

Congress to enact, at least not when that interpretation overrides detailed statutory 

language and violates basic methods of interpreting statutes. The identification of an 

apparent “anomaly”363 is not a sufficient basis for judicial revision of clear statutory text. 

And while “absurd results are to be avoided” in interpreting statutes,364 the perceived 

oddity of permitting telephone records to be acquired through NSLs but not through 

Section 215 is hardly extreme enough to call for this doctrine, which is used “to override 

unambiguous legislation” only “rarely.”365 In other words, this is not “one of those rare 

 

361 See Supplemental Opinion at 4-5.

362 18 U.S.C. § 2709(b)(1). Furthermore, Section 215 originally permitted records to be obtained without 

any assertion that they were relevant to an investigation, much less a judicial finding of relevance. The 

government needed merely to state in its application that the records concerned were “sought for” an 

authorized investigation. 50 U.S.C. § 1861(b)(2) (2002). Until 2006, therefore, when Section 215 was 

amended, it imposed a lower standard for obtaining records than the certification required to issue a national 

security letter under ECPA.

363 Supplemental Opinion at 5.

364 United States v. Wilson, 503 U.S. 329, 334 (1992) (citing United States v. Turkette, 452 U.S. 576, 580 

(1981)).

365 Barnhart v. Sigmon Coal Co., 534 U.S. 438, 441 (2002); see Memorandum & Order at 27 (stating that 

“to allow the Government to obtain telephony metadata with an NSL but not a section 215 order would lead 

to an absurd result”).
95

cases where the application of the statute as written will produce a result ‘demonstrably at 

odds with the intentions of its drafters.’”

366 Because the perceived anomaly identified by 

the FISA court is not “so bizarre that Congress ‘could not have intended’ it,” therefore “the 

remedy lies with the law making authority, and not with the courts.”367

Inferring an unwritten exception to ECPA based on an “anomaly” is particularly 

questionable when that exception is then used to permit the NSA’s bulk collection of 

telephone records. As noted, the FISA court concluded that it would be irrational to 

prohibit the government from obtaining telephone records through Section 215, which 

requires a judge to agree that the records are relevant to an investigation, when the FBI can 

obtain those same records through a national security letter, which requires no prior 

judicial approval. But the FBI already widely obtains telephone records through national 

security letters, and the FISA court’s ruling simply permits a second agency, the NSA, to 

obtain all telephone records. Even if an aggressive reading of Section 215 permits that 

result — which we believe is not the case — it clearly is not what Congress intended to 

achieve when it enacted Section 215.

VII. The Reenactment Doctrine

In 2010, and again in 2011, Congress prevented Section 215 from expiring by 

extending its sunset date. Courts and the government have concluded that by twice 

extending the expiration date of Section 215, while the NSA’s bulk telephone records 

program was ongoing, Congress implicitly adopted an interpretation of Section 215 that 

legitimizes the program.368 This conclusion rests on the principle that “Congress is 

presumed to be aware of an administrative or judicial interpretation of a statute and to 

adopt that interpretation when it re-enacts a statute without change.”369 On multiple 

grounds, however, we believe that principle has no place here.

The “reenactment doctrine” does not trump the plain meaning of a law, but rather is 

one of many interpretive tools that come into play when statutory ambiguity demands an 

 

366 Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (quoting Griffin v. Oceanic Contractors, Inc., 458 

U.S. 564, 571 (1982)).

367 Demarest, 498 U.S. at 191 (quoting Griffin, 458 U.S. at 575); Griffin, 458 U.S. at 575 (quoting Crooks v. 

Harrelson, 282 U.S. 55, 60 (1930)).

368 See Amended Memorandum Opinion at 23-28, In re Application of the Federal Bureau of Investigation 

for an Order Requiring the Production of Tangible Things, No. BR 13-109 (FISA Ct. Aug. 29, 2013); 

Memorandum & Order at 28-32, ACLU v. Clapper, No. 13-3994 (S.D.N.Y. Dec. 27, 2013); Administration White 

Paper at 17-19.

369 Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009) (quoting Lorillard v. Pons, 434 U.S. 575, 580 

(1978)).
96

inquiry into congressional intent. Reenactment, in other words, “cannot save” an 

administrative or judicial interpretation that contradicts the requirements of the statute 

itself.370 And for the many reasons explained above, any interpretation of Section 215 that 

would authorize the NSA’s telephone records program is irreconcilable with the plain 

words of the statute, its manifest purpose, and its role within FISA as a whole. 

Even if Section 215 were sufficiently ambiguous to justify an inquiry into 

congressional intent, the circumstances presented here are unlike any in which the 

reenactment doctrine has ever been applied — and the differences are pivotal. First, there 

was no judicial interpretation of Section 215 of which Congress could have been aware in 

2010 or 2011: at that time the FISA court had never issued any opinion explaining the legal 

rationale for the NSA’s program under Section 215, but had merely signed orders 

authorizing the program. Second, even if the FISA court’s orders, combined with the 

government’s applications to the court, are viewed as an “interpretation” of Section 215, 

members of Congress may have been prohibited from reading those orders and those 

applications (except for members of the intelligence and judiciary committees) by 

operation of committee rules. Thus, to apply the reenactment doctrine here, Senators and 

Congressmen must be presumed to have adopted an “interpretation” that they had no 

ability to read for themselves. Third, even if being apprised of the NSA’s program were 

equivalent to being made aware of a judicial interpretation of a statute, applying the 

reenactment doctrine is improper where members of Congress must try to comprehend a 

secret legal interpretation without the aid of their staffs or outside experts and advocates. 

That scenario robs lawmakers of a meaningful opportunity to gauge the legitimacy and 

implications of the legal interpretation in question. Fourth, Congress did not reenact 

Section 215 at all in 2010 and 2011, but merely delayed its expiration. To our knowledge, 

no court has applied the reenactment doctrine under a combination of circumstances 

remotely like this.

Finally, even if Section 215 were ambiguous about whether it authorizes the NSA’s 

bulk collection of telephone records, and even if the reenactment doctrine could be 

extended to the novel circumstances presented here, doing so would undermine the ability 

of the American public to know what the law is, and to hold their elected representatives 

accountable for their legislative choices. Applying the reenactment doctrine to legitimize 

the government’s interpretation of Section 215, therefore, is both unsupported by legal 

precedent and unacceptable as a matter of democratic accountability.

In truth, what is urged here is not the traditional reenactment doctrine, but rather a 

new variant: where the executive branch makes classified information available to 

 

370 Leary v. United States, 395 U.S. 6, 25 (1969) (quoting Commissioner of Internal Revenue v. Acker, 361 

U.S. 87, 93 (1959).
97

Congress that a secret program is being conducted under the auspices of a particular 

statute, and where Congress subsequently delays the expiration of that statute without 

amending it, Congress’s action renders the program legally authorized even if the words of 

the statute do not support it. This is a novel proposition that we do not accept.

A. Background

When Congress last amended Section 215, it provided that the statute would expire 

by 2010.371 Early that year, Congress extended the statute’s “sunset” date for another year, 

and in 2011 Congress further extended the sunset date for another four years.372

Before these two extensions, the intelligence and judiciary committees in the House 

and Senate were provided with the FISA court’s initial order authorizing the NSA’s bulk 

telephone records program and the government’s initial application.373 Those committees 

also were briefed by the executive branch about the program.374

Other members of the House and Senate were prohibited from reading the FISA 

court’s order or the government’s application. In 2009, prior to the first extension of 

Section 215’s sunset date, the executive branch provided the intelligence committees with 

a five-page briefing paper on the NSA’s bulk telephone and Internet metadata programs, 

encouraging the committees to make this document available to all members of 

Congress.375 Before the second extension in 2011, the executive branch provided a similar 

 

371 See USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 102(b)(1), 

120 Stat. 191, 195 (2006) (“Effective December 31, 2009, the Foreign Intelligence Surveillance Act of 1978 is 

amended so that sections 501, 502, and 105(c)(2) read as they read on October 25, 2001.”).

372 See An Act to Extend Expiring Provisions of the USA PATRIOT Improvement and Reauthorization Act 

of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 28, 2011, Pub. L. No. 

111-141, 124 Stat. 37 (Feb. 27, 2010); PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112-14, 125 Stat. 

216 (May 26, 2011). Section 215 is now set to sunset on June 1, 2015.

373 Administration White Paper at 18. Twice a year, the Attorney General is required to submit to the 

House and Senate intelligence and judiciary committees “a summary of significant legal interpretations” of 

FISA involving matters before the FISA court or its companion appellate court, the Foreign Intelligence 

Surveillance Court of Review, “including interpretations presented in applications or pleadings” filed with 

those courts. 50 U.S.C. § 1871(a)(4). This summary must be accompanied by “copies of all decisions, orders, 

or opinions” of the two courts “that include significant construction or interpretation” of the provisions of 

FISA. 50 U.S.C. § 1871(a)(5). In addition, on an annual basis the Attorney General must “inform” the House 

and Senate intelligence committees and the Senate judiciary committee “concerning all requests” for the 

production of items under Section 215. 50 U.S.C. § 1862(a).

374 See Administration White Paper at 18 & n.14.

375 See Letter from Assistant Attorney General Ronald Weich to the Honorable Silvestre Reyes, 

Chairman, House Permanent Select Committee on Intelligence, at 1 (Dec. 14, 2009) (“2009 Letter”); Report on 

the National Security Agency’s Bulk Collection Programs Affected by USA PATRIOT Act Reauthorization 

(2009) (“2009 Report”).
98

briefing paper to the intelligence committees.376 Each time, the executive branch specified 

that the briefing paper was “being provided on the understanding that it will be provided 

only to Members of Congress (and cleared SSCI, Judiciary Committee, and leadership staff), 

in a secure location in the SSCI’s offices, for a limited time period to be agreed upon, and 

consistent with the rules of the SSCI regarding review of classified information and nondisclosure agreements.”377 The letters also specified: “No photocopies may be made of the 

document, and any notes taken by Members may not be removed from the secure 

location.”378

Before the first extension of Section 215’s sunset date, the House and Senate 

committees made this briefing paper available to all members of Congress under the 

aforementioned conditions.379 Before the second extension, in 2011, the Senate intelligence 

committee made this briefing paper available to all Senators, but the House intelligence 

committee did not make it available to all House members.380

The briefing paper provided to the intelligence committees does not contain any 

legal analysis or explanation of how the NSA’s bulk telephone records program fits within 

the terms of Section 215. Instead the paper describes in general terms the operation of the 

NSA’s telephone and Internet metadata collection programs, indicating that they involve 

obtaining “large amounts of transactional data obtained from certain telecommunications 

service providers in the United States.”381 The briefing paper further explains that “NSA is 

authorized to collect from telecommunications service providers certain business records 

that contain information about communications between two telephone numbers, such as 

the date, time, and duration of a call,” and that FISA court orders “generally require 

production of the business records (as described above) relating to substantially all of the 

telephone calls handled by the companies, including both calls made between the United 

States and a foreign country and calls made entirely within the United States.”382 The 

document characterizes the program as an essential tool for combating terrorism, 

 

376 See Letter from Assistant Attorney General Ronald Weich to the Honorable Dianne Feinstein and the 

Honorable Saxby Chambliss, Chairman and Vice Chairman, Senate Select Committee on Intelligence, at 1 

(Feb. 2, 2011) (“2011 Letter”); Report on the National Security Agency’s Bulk Collection Programs Affected by 

USA PATRIOT Act Reauthorization (2011) (“2011 Report”).

377 2011 Letter at 1; see 2009 Letter at 2

378 2011 Letter at 1-2; see 2009 Letter at 2.

379 See Administration White Paper at 17-18.

380 See Administration White Paper at 18 n.13.

381 2011 Report at 2.

382 2011 Report at 3. 
99

emphasizes the strict rules governing it, discloses that it has generated compliance issues, 

and includes certain details of the program that illustrate its limitations.383

B. Discussion

“When Congress reenacts statutory language that has been given a consistent 

judicial construction,” the Supreme Court “often adhere[s] to that construction in 

interpreting the reenacted statutory language.”384 In other words, “Congress is presumed 

to be aware of an administrative or judicial interpretation of a statute and to adopt that 

interpretation when it re-enacts a statute without change.”385

“There is an obvious trump to the reenactment argument, however, in the rule that 

‘[w]here the law is plain, subsequent reenactment does not constitute an adoption of a 

previous administrative construction.’”

386 Congressional reenactment “has no interpretive 

effect where regulations clearly contradict [the] requirements of [a] statute,”387 and in such 

cases reenactment “cannot save” the faulty interpretation.388 Rather: “In a statutory 

construction case, the beginning point must be the language of the statute, and when a 

statute speaks with clarity to an issue judicial inquiry into the statute’s meaning, in all but 

the most extraordinary circumstance, is finished.”389 An interpretation that “flies against 

the plain language of the statutory text exempts courts from any obligation to defer to 

 

383 While the briefing paper explains that the NSA’s program operates “on a very large scale” and 

involves “substantially all” of the calling records generated by “certain” telephone companies, it does not 

make explicit that the program is designed to collect the records of essentially all telephone calls. And while 

the document explains certain operational details about the program that confine its reach — such as the fact 

that “[b]efore NSA analysts may query bulk records, they must have reasonable articulable suspicion . . . that 

the number or e-mail address they submit is associated with” a terrorist organization” — it omits other 

details having the opposite implication, such as the fact that a single query permits analysts to view the full 

calling records of all telephone numbers that are two “hops” away from the target, which generally means 

thousands of numbers. 2011 Report at 3-4. Similarly, while document cites “a number of technical compliance 

problems and human implementation errors” reported to the FISA court, highlighting the absence of “any 

intentional or bad-faith violations,” it does not hint at the full scope of these compliance issues, reflected in 

the FISA court’s 2009 declaration that “from the inception of this FISA BR program, the NSA’s data accessing 

technologies and practices were never adequately designed to comply with the governing minimization 

procedures.” Order at 14-15, In re Production of Tangible Things, No. BR 08-13 (FISA Ct. Mar. 2, 2009).

384 Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 185 (1994) (citing 

Keene Corp. v. United States, 508 U.S. 200, 212-13 (1993), Pierce v. Underwood, 487 U.S. 552, 567 (1988), & 

Lorillard v. Pons, 434 U.S. at 580-81).

385 Forest Grove Sch. Dist. v. T.A., 557 U.S. at 239-40 (quoting Lorillard, 434 U.S. at 580).

386 Brown v. Gardner, 513 U.S. 115, 121 (1994) (quoting Demarest v. Manspeaker, 498 U.S. 184, 190 

(1991)).

387 Brown, 513 U.S. at 121 (citing Massachusetts Trustees of Eastern Gas & Fuel Associates v. United States, 

377 U.S. 235, 241-42 (1964)).

388 Leary v. United States, 395 U.S. 6, 25 (1969) (citing Massachusetts Trustees of Eastern Gas and Fuel 

Associates, 377 U.S. at 241-42).

389 Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992) (citing Demarest, 498 U.S. at 190).
100

it,”390 because Congress cannot “add to or expand” a statute by “impliedly” approving an 

interpretation that “conflicts with the statute.”391 Thus, a “poor fit” between statutory 

language and an administrative or judicial construction, or the “eccentricity” of such a 

construction in light of the statutory text, prevents the reenactment doctrine from 

legitimizing that construction.392

For the many reasons explained earlier, Section 215 is not ambiguous about 

whether it authorizes the NSA to collect the entire nation’s telephone records on an 

ongoing daily basis: the only way to interpret Section 215 in that fashion is to add words to 

the statute that it does not contain, subtract words that it does contain, and reinterpret 

other words beyond recognition. Because “the text and reasonable inferences from it give a 

clear answer,” that is “the end of the matter.”

393

Even if Section 215 were ambiguous on this question, the reenactment doctrine 

cannot credibly be applied to the circumstances presented here, which differ in pivotal 

ways from any circumstances in which the doctrine has been applied. To begin with, 

Congress did not actually reenact Section 215 in 2010 or 2011, but merely postponed the 

sunset dates on which the statute would expire.394 More importantly, at the time of these 

extensions, there was no judicial interpretation of Section 215 by the FISA court of which 

Congress can be presumed to have been aware. Until 2013, the FISA court never issued any 

opinion explaining how Section 215 authorized the NSA’s telephone records program. And 

while the government’s applications to the FISA court seeking authorization for the 

program contained the executive branch’s position on that question, members of Congress 

outside of the intelligence and judiciary committees were prohibited from reading those 

applications (or the FISA court orders granting them). At most, these Senators and 

Representatives had access to a five-page document describing the program in general 

terms, along with the opportunity for briefings by executive branch officials.

 

390 Brown, 513 U.S. at 122 (citing Dole v. Steelworkers, 494 U.S. 26, 42 43 (1990), and Chevron U.S.A. Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837, 842 43 (1984)).

391 Leary, 395 U.S. at 25 (quoting Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 93 (1959)); see

William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH. L. REV. 67, 83 (1988) (“Where the prior 

interpretation is flatly inconsistent with relatively clear statutory language or history, the Court may abandon 

the Lorillard presumption that Congress was aware of and adopted the prior line of interpretation.”).

392 Brown, 513 U.S. at 119-21.

393 Brown, 513 U.S. at 120 (quoting Good Samaritan Hospital v. Shalala, 508 U.S. 402, 409 (1993) 

(internal quotation marks omitted)).

394 See An Act to Extent Expiring Provisions of the USA PATRIOT Improvement and Reauthorization Act 

of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 28, 2011, Pub. L. No. 

111-141, 124 Stat. 37 (2010) (striking “February 28, 2010” and inserting “February 28, 2011”); PATRIOT 

Sunsets Extension Act of 2011, Pub. L. No. 112-14, 125 Stat. 216 (2011) (striking “May 27, 2011” and 

inserting “June 1, 2015”).
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While this document gave notice of the existence of the NSA’s program, it cannot be 

regarded as a judicial or administrative interpretation of a statute — because it lacks any 

explanation of how Section 215 can be interpreted to authorize the program. (Indeed, it 

contains no legal analysis at all.) And even this document was never made available to the 

full House of Representatives before the most recent extension of Section 215’s sunset date. 

While the briefing paper may have been intended to help lawmakers make informed policy 

choices, simply providing notice of an ongoing program is not the same as making Congress 

aware of an administrative or judicial interpretation of a statute.

Moreover, even if having access to the executive branch’s briefing paper were 

equivalent to being aware of an administrative or judicial interpretation of a statute, the 

reenactment doctrine would still be out of place here. The doctrine has never been applied 

to secret interpretations of the law summarized in classified papers that members of 

Congress must comprehend without the aid of their own staffs or outside experts.395 When 

legislators set about determining whether to reenact a statute, they normally are aided by 

the insights and advice of their staff as well as commentary by legal scholars, practitioners, 

journalists, advocates, and others regarding how that statute has been interpreted. Thus, 

before reenacting a statute that has been interpreted in a particular way, legislators have 

the means of becoming educated about the nature of that interpretation, its strength as a 

doctrinal matter, and its full ramifications as a practical matter. By contrast, when the only 

means through which legislators can try to understand a prior interpretation of the law is 

to read a short description of an operational program, prepared by executive branch 

officials, made available only at certain times and locations, which cannot be discussed with 

others except in classified briefings conducted by those same executive branch officials, 

legislators are denied a meaningful opportunity to gauge the legitimacy and implications of 

the legal interpretation in question. Under such circumstances, it is not a legitimate method 

of statutory construction to presume that these legislators, when reenacting the statute, 

intended to adopt a prior interpretation that they had no fair means of evaluating.

Finally, even if the reenactment doctrine were a valid means of discerning 

congressional intent under these circumstances, its application would have unacceptable 

consequences for the public’s ability to know what the law is. When a secret court accepts a 

counterintuitive reading of a law — one that could not possibly be guessed by reading the 

 

395 Personal staff for members of Congress are not eligible to obtain the level of security clearance 

required for access to Section 215 program information. See, e.g., Office of Senate Security, United States 

Senate Security Manual, § III.5 (Apr. 2007) (“There are three ‘levels’ of security clearance, which correspond 

with the three levels of classification: Confidential, Secret and Top Secret. In addition, certain categories of 

classified information require special clearances and access approval. These special clearances and approvals 

are granted on a rigidly controlled need-to-know basis, and are not granted to personal staff.” (emphasis 

added)). Therefore, many members of Congress — anyone who does not sit on a committee where review of 

classified information is common — have no staff who would have been able to assist them in reviewing the 

classified descriptions of the Section 215 program.
102

statutory language alone, and which invests the government with significant new powers 

— permitting congressional reenactment to enshrine that novel interpretation deprives the 

public of any ability to know that the law is, much less have any voice in changing it.

For these reasons, we believe that the statutory legitimacy of the NSA’s bulk 

telephone records program must be assessed only with reference to the words of the law 

that purportedly authorizes it.

VIII. Conclusion

The NSA’s bulk telephone records program was initiated more than four years 

before the government sought authorization for it under Section 215 of the Patriot Act. In 

light of that history, it may not be surprising that the operation of the program bears 

almost no relationship to the text of the statute — which is designed to confer subpoenalike authority on the FBI, not to enable nationwide bulk data collection by the NSA. As we 

believe the foregoing analysis has demonstrated, sanctioning the NSA’s program under 

Section 215 requires an impermissible transformation of the statute: Where its text fails to 

authorize a feature of the program (such as the daily production of new telephone records), 

such authority must be inferred from silence. Where its text uses limiting words (such as 

“relevant”), those words must be redefined beyond their traditional meaning. And where 

its text simply cannot be reconciled with the program (such as its direction that the FBI, not 

the NSA, receive any items produced), those words must be ignored. 

It may have been a laudable goal for the executive branch to bring this program 

under the supervision of the FISA court. Ultimately, however, that effort represents an 

unsustainable attempt to shoehorn a preexisting surveillance program into the text of a 

statute with which it is not compatible. Because Section 215 does not provide a sound legal 

basis for the NSA’s bulk telephone records program, we believe the program must be 

ended.
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Part 6:

CONSTITUTIONAL ANALYSIS

I. Overview 

The NSA’s bulk telephone records program potentially implicates both the First and 

Fourth Amendments to the United States Constitution. Yet evaluating the legitimacy of the 

program under those amendments presents a challenge: while constitutional analysis 

involves drawing inferences and conclusions from existing precedent, the scope and 

duration of the Section 215 telephone records program go beyond anything ever before 

confronted by the courts. In addition, as a result of technological development, the 

government now possesses capabilities to collect, store, and analyze data that were not 

available when key portions of the existing case law were decided. For these reasons, a 

mechanical application of cases decided many years ago regarding the particularized 

collection of limited amounts of data may miss the point. In future decisions, the courts will 

take account of those technological developments, as they have begun to do in other cases 

applying the Fourth Amendment to new technological realities. In this section, we do not 

try to predict the future path of constitutional doctrine. We do, however, note where 

existing doctrine seems an ill fit for evaluating the Section 215 telephone records program 

and where that doctrine may be unsustainable given the realities of modern technology. 

And we recommend as a policy matter that all three branches of government, in developing 

and assessing data collection programs, look beyond the application of cases decided in a 

very different environment and instead consider how to preserve the underlying 

constitutional principles in the face of modern communications technology and 

surveillance capabilities.

We first consider the Fourth Amendment, which prohibits unreasonable searches 

and seizures by the government. Analysis of the NSA’s telephone records program under 

the Fourth Amendment must begin by asking whether the agency’s collection of calling 

records qualifies as a “search” within the meaning of the Amendment. If not, as the 

government has argued in defense of the program, the Fourth Amendment and its 

restrictions do not apply to the NSA’s activity.

The Supreme Court has ruled that the Fourth Amendment does not provide 

individuals with a right of privacy in the numbers that they dial from their telephones. 

More broadly, the Court has concluded, any information that a person voluntarily discloses 

to a business or other entity loses all Fourth Amendment protection. This rule, referred to 

as the “third-party doctrine,” means that when government agents obtain records about a 

person that are held by a telephone company, bank, or other institution, that does not 

qualify as a search under the Constitution. 
104

Although the Section 215 program encompasses much more information than the 

telephone numbers that a person dials, all of the information that the NSA collects under 

the program has been disclosed to telephone companies by their customers. Therefore, 

under the broad reading of the third-party doctrine widely adopted in the federal courts, 

none of the information is constitutionally protected, and the NSA may collect it without 

seeking a warrant or ensuring that its behavior satisfies the Fourth Amendment’s standard 

of reasonableness.

The third-party doctrine has long been criticized as permitting undue government 

intrusion into personal privacy. Those criticisms have gained particular force in light of two 

trends stemming from modern technological developments. First, Americans increasingly 

must share personal information with institutions in order to conduct business and avail 

themselves of services that have become commonplace features of contemporary life. 

Second, new technology has dramatically enhanced the government’s ability to collect, 

aggregate, and analyze immense quantities of information. Moreover, until last year, no 

court had considered whether there is any limit to the third-party doctrine in the context of 

the collection of data about essentially all individuals nationwide on an ongoing, 

indefinitely renewable basis.396

It is possible that the third-party doctrine or its scope will be judicially revised. The 

Supreme Court has recognized the danger that technological developments may erode 

Fourth Amendment privacy guarantees if constitutional law does not respond to those 

developments. In addition, a majority of Justices recently indicated that the rise of powerful 

new surveillance tools demands that not everything an individual reveals to another 

person is undeserving of Fourth Amendment protection. 

To date, however, the Supreme Court has not modified the third-party doctrine or 

overruled its conclusion that the Fourth Amendment does not protect telephone dialing 

records. Most courts continue to follow those precedents, and government lawyers are 

entitled to rely on them, including in their formulation and defense of the Section 215 

program. 

Furthermore, a reversal or narrowing of these principles would establish only that 

the NSA’s collection of telephone records is a “search” under the Fourth Amendment. 

Additional questions would then follow about whether this type of search required a 

warrant and whether it was reasonable within the meaning of the amendment. 

 

396 See Memorandum & Order, ACLU v. Clapper, No. 13-3994 (S.D.N.Y. Dec. 27, 2013); Memorandum 

Opinion, Klayman v. Obama, No. 13-0851 (D.D.C. Dec. 16, 2013); Amended Memorandum Opinion, In re 

Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, No. 

BR 13-109 (FISA Ct. Aug. 29, 2013).
105

Notwithstanding the agreement of most federal courts that telephony metadata 

lacks Fourth Amendment protection, however, the collection of telephone calling records 

by the government clearly implicates considerable privacy interests. Those interests, 

accordingly, deserve significant weight when the value of the NSA’s telephone records 

program is balanced with its effects on privacy and civil liberties, an analysis we undertake 

in the next section of this Report.

We also consider in this section whether the telephone records program may impact 

rights under the First Amendment, which, among other safeguards, provides protection for 

the freedoms of speech and association. The Supreme Court has recognized that the 

freedom of association involves the rights of people to join together in support of their 

common beliefs on political, religious, cultural, economic and other matters. To the extent 

that the NSA’s telephone records program reveals the patterns of individuals’ connections

and associations, this may implicate such First Amendment rights.

The Supreme Court has ruled that government programs can violate the First 

Amendment freedom of association even if they are not directly aimed at limiting the 

ability of people to join together for a common purpose. Indirect actions that have the 

effect of “chilling” the right of association can also infringe this constitutional right. In other 

words, the government can interfere with this constitutional protection by making people 

afraid to exercise their freedom of association. 

The Supreme Court has explored the constitutional freedom of association in depth 

in connection with challenges to government actions that force disclosure of individuals’

associations to the government. In this context, the Court has recognized that the freedom 

of association includes protection for the privacy of associations, so that individuals will 

not be afraid to join together in exercising their rights. This right to privacy of association 

was grounded in the need to protect people who promote controversial or dissident beliefs, 

and has also been recognized where revealing associations to the government could subject 

an individual to adverse consequences. Courts have also found that surveillance programs 

can have a chilling effect on the freedom of association. However, due to the doctrine of 

standing, the Supreme Court has never reached the question of whether a surveillance 

program can create a “chilling effect” sufficient to violate the First Amendment.

The First Amendment right of association is not absolute, but courts will review 

challenges under the “exacting scrutiny” test. Government actions that may chill 

associational conduct must be supported by a sufficiently important government interest, 

and must be designed to limit the intrusions on First Amendment rights.

Just as with the Fourth Amendment, changes in technology have altered the 

analysis. There has never been a program of the scope of the one being conducted under 

Section 215, and the government has never had at its disposal the analytic tools now 
106

available. Our analysis of the NSA telephone records program concludes that the collection 

of telephone metadata records for all Americans’ phone calls extending over a five year 

time period implicates the First Amendment freedom of association. Although the program 

is supported by a compelling government interest in combatting terrorism, which can 

justify some intrusions on First Amendment rights, it is not narrowly tailored. The 

extraordinary breadth of this collection program creates a chilling effect on the First 

Amendment rights of Americans, and we factor this concern into our policy analysis later in 

this Report.

II. THE FOURTH AMENDMENT

A. Protections of the Fourth Amendment against Unreasonable Searches

The Fourth Amendment to the United States Constitution prohibits unreasonable 

searches and seizures by the government. The Amendment reads:

The right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not be violated, and 

no Warrants shall issue, but upon probable cause, supported by Oath or 

affirmation, and particularly describing the place to be searched, and the 

persons or things to be seized.

Before conducting most types of searches, government agents must obtain a 

warrant from a judge that describes what they plan to search, after demonstrating 

probable cause to believe that the search will yield evidence of a criminal offense.397

Requiring agents to obtain a warrant before conducting a search limits the potential for 

abuse of their authority, the Supreme Court has explained, by requiring them to “present 

their estimate of probable cause for detached scrutiny by a neutral magistrate,” to “observe 

precise limits established in advance by a specific court order,” and “to notify the 

authorizing magistrate in detail of all that had been seized.”398

Warrants are not required for government searches in “a few specifically 

established and well-delineated exceptions.”399 Even searches that fall within those 

 

397 See Arizona v. Gant, 556 U.S. 332, 338 (2009) (stating that “searches conducted outside the judicial 

process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth 

Amendment — subject only to a few specifically established and well-delineated exceptions”) (quoting Katz v. 

United States, 389 U.S. 347, 357 (1967)).

398 Katz, 389 U.S. at 356.

399 City of Ontario, Cal. v. Quon, 130 S. Ct. 2619, 2630 (2010).
107

exceptions violate the Fourth Amendment if they are not “reasonable.”400 Whether a search 

is reasonable, the Supreme Court has said, “is determined by assessing, on the one hand, 

the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to 

which it is needed for the promotion of legitimate governmental interests.”401

While Fourth Amendment questions are raised most frequently in criminal 

prosecutions, where defendants can argue that evidence against them was obtained 

unconstitutionally, its protections are not limited to situations where law enforcement 

officers are searching for evidence of a crime.402 “The Amendment guarantees ‘the privacy, 

dignity, and security of persons against certain arbitrary and invasive acts by officers of the 

Government,’ without regard to whether the government actor is investigating crime or 

performing another function.”403 This means that the executive branch must comply with 

the Fourth Amendment and may not engage in unreasonable searches when performing 

other vital functions of the government, such as protecting the nation from terrorism.404

The Fourth Amendment’s restrictions come into play, however, only when the 

government carries out a search (or seizure). Whether a particular action taken by the 

government qualifies as a search is sometimes a difficult question. The quintessential 

example of a Fourth Amendment search occurs when government agents enter someone’s 

home to look through his or her belongings, but the Amendment covers many other types 

of intrusions into personal privacy.

The telephone records program carried out by the NSA under Section 215 of the 

Patriot Act begins with the collection of individual Americans’ calling records from private 

telephone companies. The NSA does not obtain these records from Americans themselves 

by probing their mail or computers, nor does it intercept the records in transmission or use 

any special technical means to gather them. Instead, private telephone companies disclose 

the records to the NSA, as ordered by the Foreign Intelligence Surveillance Court (“FISC” or 

“FISA court”).405 In defense of the NSA’s program, the government argues that collecting 

telephone calling records in this manner does not qualify as a “search” within the meaning 

of the Fourth Amendment. 

 

400 See Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (“Even if a warrant is not required, a search is not 

beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution.”).

401 Samson v. California, 547 U.S. 843, 848 (2006); accord Maryland v. King, 133 S. Ct. at 1970.

402 Quon, 130 S. Ct. at 2627.

403 Quon, 130 S. Ct. at 2627 (quoting Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 613-614 

(1989)).

404 In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA 

Ct. Rev. 2008).

405 See Part 3 this Report for a description of this process.
108

If the government is correct, the Fourth Amendment does not apply at all to the 

NSA’s telephone records program, meaning that the program may be conducted without 

obtaining warrants and without meeting the constitutional standard of reasonableness. 

While the government has devised a strict set of rules limiting the NSA’s use and 

dissemination of the records it collects — recognizing that many individuals feel a privacy 

interest in their calling records, particularly with respect to governmental access to those 

records — these rules place no limits on the government’s initial collection of telephone 

records. The question, then, is whether the NSA’s collection of these records constitutes a 

search under the Fourth Amendment.

B. Telephone Eavesdropping and Reasonable Expectations of Privacy

Through the middle of the last century, defining a “search” was relatively simple 

because the Fourth Amendment was understood to protect certain places and things —

such as one’s home or vehicle — from unreasonable government searches. As a result, 

Fourth Amendment law was linked with the concept of property.406 When government 

agents physically invaded a person’s home or seized personal property to gather 

information; that conduct was regarded as a search and was subject to the restrictions of 

the Fourth Amendment.407

In a landmark 1967 decision, however, the Supreme Court clarified that “the Fourth 

Amendment protects people, not places” and ruled that government investigatory conduct 

can qualify as a search even where agents do not interfere with an individual’s private 

property.408 That decision, Katz v. United States, involved eavesdropping on telephone 

conversations. FBI agents had attached a listening device to the outside of a public 

telephone booth that was frequently used by a criminal suspect, allowing them to hear the 

words that he spoke into the telephone receiver. Although the agents did not physically 

intrude into the suspect’s home or even into the telephone booth, the Supreme Court 

declared their eavesdropping to be a “search” under the Fourth Amendment, explaining 

that what a person “seeks to preserve as private, even in an area accessible to the public, 

may be constitutionally protected.”409

A person in a telephone booth, the Court said in Katz, “is surely entitled to assume 

that the words he utters into the mouthpiece will not be broadcast to the world[.]”410

 

406 See United States v. Jones, 132 S. Ct. 945, 949 (2012); Kyllo v. United States, 533 U.S. 27, 31-32 (2001) 

(citing, inter alia, Olmstead v. United States, 277 U.S. 438, 465-66 (1928)).

407 See Jones, 132 S. Ct. at 949; id. at 955 (Sotomayor, J., concurring).

408 Katz v. United States, 389 U.S. 347, 351 (1967); see Jones, 132 S. Ct. at 949 (quoting Katz, 389 U.S. at 

351).

409 Katz, 389 U.S. at 351.

410 Katz, 389 U.S. at 352.
109

Therefore, the act of “electronically listening to and recording the [suspect’s] words 

violated the privacy upon which he justifiably relied while using the telephone booth and 

thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”411

The Katz decision made clear that, unless an exception applied, government 

eavesdropping on private telephone conversations without a warrant violates the 

Constitution. As the Court put it a few years later: “Though physical entry of the home is the 

chief evil against which the wording of the Fourth Amendment is directed, its broader spirit 

now shields private speech from unreasonable surveillance.”412

More broadly, Katz established a two-part test for determining whether government 

conduct qualifies as a “search” under the Fourth Amendment. This “twofold requirement,” 

from Justice John Marshall Harlan’s concurring opinion, requires “first that a person have 

exhibited an actual (subjective) expectation of privacy and, second, that the expectation be 

one that society is prepared to recognize as ‘reasonable.’”

413 Justice Harlan’s two-part test 

was soon adopted by the Court itself and ever since has been the Fourth Amendment 

standard. 414 Thus, “a Fourth Amendment search occurs when the government violates a 

subjective expectation of privacy that society recognizes as reasonable.”415

Unlike the surveillance addressed by the Supreme Court in Katz, the NSA’s calling 

records program does not allow the government to listen to the content of telephone 

conversations. Indeed, because calling records are transmitted to the NSA by the telephone 

companies only after the calls have been completed, and because the telephone companies 

do not record these calls, the program gives the agency no means of listening to phone 

conversations. The government does not argue that the NSA could eavesdrop on purely 

domestic telephone calls without obtaining a warrant.

Under the Supreme Court’s guidance, therefore, determining whether the NSA’s 

collection of telephone records qualifies as a search involves applying the two-part test set 

forth above, and asking whether individuals have a subjective expectation of privacy in 

their calling records that society recognizes as reasonable. Answering that two-part 

question, however, requires taking into account another important Fourth Amendment 

doctrine.

 

411 Katz, 389 U.S. at 353.

412 United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 313 (1972).

413 Katz, 389 U.S. at 361 (Harlan, J., concurring).

414 Mancusi v. DeForte, 392 U.S. 364, 368 (1968).

415 See, e.g., Kyllo, 533 U.S. at 33 (citing Katz, 389 U.S. at 361 (Harlan, J., concurring)).
110

C. The “Third-Party Doctrine”

Government agents have other ways of obtaining information about people besides 

eavesdropping on their conversations or searching their property. One method is to 

subpoena information about a person from a third party. In the 1976 decision United States 

v. Miller, the Supreme Court concluded that law enforcement agents, without a warrant, 

could use a grand jury subpoena to obtain a customer’s personal financial records from a 

bank. The Court rejected the customer’s argument that under Katz he had a reasonable 

expectation of privacy in his bank records. The Court noted that “checks are not 

confidential communications but negotiable instruments to be used in commercial 

transactions.” They are “voluntarily conveyed to the banks and exposed to their employees 

in the ordinary course of business.” A bank customer has “neither ownership nor 

possession” of such records, the Court said, which “are the business records of the 

banks.”416 A bank depositor, the Court reasoned, “takes the risk, in revealing his affairs to 

another, that the information will be conveyed by that person to the Government.”417

This situation was different from the one in Katz, where government agents covertly 

recorded a suspect’s conversation from the outside of a telephone booth. The suspect in 

Katz had attempted to keep his conversation private from everyone except for the other 

participant, and so the government, without a warrant, could learn what was said in that 

conversation only from the other participant. The difference in Miller was that the 

government obtained the suspect’s bank records directly from the bank, which itself 

participated in every financial transaction catalogued in its customers’ records. “All of the 

documents obtained,” therefore, “including financial statements and deposit slips, 

contain[ed] only information voluntarily conveyed to the banks and exposed to their 

employees in the ordinary course of business.”418

In fashioning the third-party doctrine and applying it to business records, the Court 

thus concluded “that the Fourth Amendment does not prohibit the obtaining of information 

revealed to a third party and conveyed by him to Government authorities, even if the 

information is revealed on the assumption that it will be used only for a limited purpose 

and the confidence placed in the third party will not be betrayed.”419 That principle, said 

the Court, holds true even where, as in Miller, the Bank Secrecy Act forced banks to create 

 

416 United States v. Miller, 425 U.S. 435, 440, 442-43 (1976).

417 Miller, 425 U.S. at 443 (citing United States v. White, 401 U.S. 745, 751-52 (1971)).

418 Miller, 425 U.S. at 442.

419 Miller, 425 U.S. at 443 (citing White, 401 U.S. at 752, Hoffa, 385 U.S. at 302, and Lopez v. United States, 

373 U.S. 427 (1963)); see also S.E.C. v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 (1984).
111

and maintain certain records about their customers, and where a bank was later compelled 

by a grand jury subpoena to turn over those records to the government.420

D. Warrantless Collection of Telephone Records

The rule that the Fourth Amendment does not protect information that a person has 

voluntarily conveyed to a third party was the foundation for the 1979 Supreme Court 

decision Smith v. Maryland, in which the Court concluded that individuals have no 

constitutional right of privacy in the numbers that they dial from their telephones. That 

decision is now the lynchpin of the government’s constitutional rationale underlying the 

NSA’s telephone records program.421

Given the significance of the Smith decision, its facts bear recounting in some detail. 

In 1976, Michael Lee Smith robbed a woman in Baltimore, Maryland. After the robbery, he 

began to make threatening and obscene telephone calls to her, identifying himself as the 

robber, and at least once drove his car by her house to intimidate her. The police learned 

Smith’s address from his license plate number, and asked the telephone company to install 

a “pen register” at its central office to record the numbers dialed from the telephone at 

Smith’s home.422 A pen register is a device that, at the time, was attached to a telephone line 

and recorded the numbers dialed from a telephone but was not capable of hearing or 

recording telephone conversations themselves. While the technology of pen registers has 

evolved since the 1970s, the Supreme Court explained then that the machines “decode 

outgoing telephone numbers by responding to changes in electrical voltage caused by the 

turning of the telephone dial (or the pressing of buttons on pushbutton telephones) and 

present the information in a form to be interpreted by sight rather than by hearing.”423 The 

machine’s name derives from the fact that early models used a pen to mark dashes on a 

piece of paper corresponding to each pulse from a rotary spin dial.424

In the Smith case, the police did not obtain a warrant or court order before having 

the pen register installed at the telephone company. On the same day that the device was 

installed, it revealed that a call was placed to the victim’s home from Smith’s telephone. 

 

420 Miller, 425 U.S. at 443-45.

421 See, e.g., Administration White Paper, Bulk Collection of Telephony Metadata under Section 215 of 

the USA PATRIOT Act, at 19-20 (Aug. 9, 2013) (citing Smith v. Maryland, 442 U.S. 735 (1979)).

422 Smith, 442 U.S. at 737.

423 United States v. New York Tel. Co., 434 U.S. 159, 167 (1977).

424 “A pen register is a mechanical instrument attached to a telephone line, usually at a central telephone 

office, which records the outgoing numbers dialed on a particular telephone. In the case of a rotary dial 

phone, the pen register records on a paper tape dots or dashes equal in number to electrical pulses which 

correspond to the telephone number dialed.” Application of U.S. in Matter of Order Authorizing Use of a Pen 

Register, 538 F.2d 956, 957 (2d Cir. 1976), rev’d sub nom. United States v. New York Tel. Co., 434 U.S. 159 

(1977).
112

Based on this and other evidence, the police then secured a warrant to search his residence, 

where incriminating evidence was found ultimately leading to his conviction.425 Appealing 

this conviction, Smith’s attorneys argued in the Supreme Court that the installation of the 

pen register without a warrant violated his Fourth Amendment rights. 

Because the pen register was installed at the telephone company’s office, there was 

no trespass to Smith’s property. Therefore, the Supreme Court explained, under the Katz

test the question was whether Smith had a “legitimate expectation of privacy” that had 

been “invaded by government action.”426

A divided Court concluded that no legitimate privacy interest had been violated by 

warrantless use of the pen register. The five-Justice majority emphasized that “a pen 

register differs significantly from the listening device employed in Katz, for pen registers do 

not acquire the contents of communications.” In fact, “a law enforcement official could not 

even determine from the use of a pen register whether a communication existed.”427 As the 

Court explained:

These devices do not hear sound. They disclose only the telephone numbers 

that have been dialed — a means of establishing communication. Neither the 

purport of any communication between the caller and the recipient of the 

call, their identities, nor whether the call was even completed is disclosed by 

pen registers.428

“Given a pen register’s limited capabilities,” the Court said, Smith’s argument that its 

installation and use constituted a “search” rested upon a claim that he had a “legitimate 

expectation of privacy regarding the numbers he dialed on his phone.”429

The Court rejected that claim, expressing doubt “that people in general entertain 

any actual expectation of privacy in the numbers they dial.” All telephone users “realize 

that they must ‘convey’ phone numbers to the telephone company,” the Court continued, 

“since it is through telephone company switching equipment that their calls are completed. 

All subscribers realize, moreover, that the phone company has facilities for making 

permanent records of the numbers they dial, for they see a list of their long-distance (toll) 

calls on their monthly bills.”430 In short, according to the Supreme Court, telephone 

customers have no actual, subjective expectation that the numbers they dial are private, 

 

425 Smith, 442 U.S. at 737.

426 Smith, 442 U.S. at 740.

427 Smith, 442 U.S. at 741 (emphasis in original).

428 Smith, 442 U.S. at 741 (quoting New York Tel. Co., 434 U.S. at 167).

429 Smith, 442 U.S. at 742 (internal quotation marks omitted).

430 Smith, 442 U.S. at 742.
113

because they “typically know that they must convey numerical information to the phone 

company; that the phone company has facilities for recording this information; and that the 

phone company does in fact record this information for a variety of legitimate business 

purposes.”431

Even if Michael Lee Smith did harbor a personal, subjective expectation that the 

numbers he dialed were private, the Court continued, that expectation was not “one that 

society is prepared to recognize as ‘reasonable,’” and therefore the expectation was not 

protected by the Fourth Amendment.432 This was so, the Court said, because under the 

third-party doctrine described above “a person has no legitimate expectation of privacy in 

information he voluntarily turns over to third parties.”433

Applying this principle in Smith, the Court concluded that the suspect, by using his 

telephone, “voluntarily conveyed numerical information to the telephone company and 

‘exposed’ that information to its equipment in the ordinary course of business.”434 Just as a 

person who reveals information to a friend or associate assumes the risk that his confidant 

will share it with the government, a person making telephone calls assumes the risk that 

the telephone company will share with the government the numbers he has dialed.

The upshot of Smith v. Maryland is that under the Constitution the government does 

not need a warrant to use a pen register to obtain the telephone numbers that a person 

dials from his or her telephone. The government can intercept that information, as the 

police did in Smith, by installing a pen register to record those numbers.435 Similarly, the 

courts have concluded, warrants are not constitutionally required to install and use a “trap 

and trace” device, which monitors the inbound calls made to a particular telephone, much 

like caller-ID service.436 In lieu of using such devices for real-time collection, the 

government can issue a subpoena to the telephone company for the stored calling records 

of one of its customers.437

 

431 Smith, 442 U.S. at 743.

432 Smith, 442 U.S. at 743 (quoting Katz, 389 U.S. at 361).

433 Smith, 442 U.S. at 743-44.

434 Smith, 442 U.S. at 744.

435 In 1986, Congress adopted legislation requiring governmental entities to obtain a court order to 

install and use a pen register. The standard for such orders is much lower than the standard required for 

issuance of a warrant: a court must issue an order if the government certifies that the evidence sought is 

relevant to an ongoing criminal investigation. See 18 U.S.C. §§ 3121-3127.

436 See, e.g., United States v. Reed, 575 F.3d 900, 914 (9th Cir. 2009); United States v. Hallmark, 911 F.2d 

399, 402 (10th Cir. 1990). The pen register statute adopted in 1986 also requires court orders for the 

installation and use of trap and trace devices.

437 See 18 U.S.C. §§ 2703(c)(2), 2709.
114

While Smith v. Maryland addresses law enforcement tools of a more primitive 

technological era — the decision declares that the equipment that processes dialed 

telephone numbers “is merely the modern counterpart of the operator who, in an earlier 

day, personally completed calls for the subscriber” — it remains the law of the land.438

Many recent court decisions have relied on a broad reading of Smith to conclude, among 

other things, that there is no Fourth Amendment expectation of privacy in email addressing 

information, such as the “to” and “from” lines in an email.439

E. Comparing the NSA’s Telephone Records Program with the Surveillance 

Approved in Smith v. Maryland

In the view of the government and the FISA court, Smith v. Maryland settles the 

question of whether the NSA’s telephone records program constitutes a search under the 

Fourth Amendment: because people have no reasonable expectation of privacy in the 

numbers that they dial, collecting those numbers from a telephone company is not a 

“search” within the meaning of the Fourth Amendment, and therefore the Amendment 

simply does not apply.440 As previously noted, Smith v. Maryland still stands as the law of 

the land, and government attorneys were entitled to rely on it as the telephony metadata 

program was developed and approved by the court. 

However, the case does not provide a good fit for the telephone records program, 

particularly in light of rapid technological changes and in light of the nationwide, ongoing 

nature of the program. The NSA’s Section 215 program gathers significantly more 

information about each telephone call and about far more people than did the pen register 

surveillance approved in Smith (essentially everyone in the country who uses a phone) and 

it has collected that data now for nearly eight years without interruption.441 In contrast, the 

pen register approved in Smith v. Maryland compiled only a list of the numbers dialed from 

Michael Lee Smith’s telephone. It did not show whether any of his attempted calls were 

actually completed — thus it did not reveal whether he engaged in any telephone 

conversations at all. Naturally, therefore, the device also did not indicate the duration of 

any conversations. Furthermore, the pen register provided no information about incoming 

telephone calls placed to Smith’s home, only the outbound calls dialed from his telephone. 

 

438 Smith, 442 U.S. at 744; but see Memorandum Opinion at 45, Klayman v. Obama, No. 13-0851 (D.D.C. 

Dec. 16, 2013) (concluding that Smith v. Maryland does not apply to the NSA telephone metadata program).

439 See, e.g., United States v. Forrester, 512 F.3d 500 (9th Cir. 2008). 

440 See Administration White Paper at 19-20; Amended Memorandum Opinion at 6-9, In re Application of 

the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, No. BR 13-109 

(FISA Ct. Aug. 29, 2013); Memorandum at 4-6, In re Application of the Federal Bureau of Investigation for an 

Order Requiring the Production of Tangible Things, No. BR 13-109 (FISA Ct. Oct. 11, 2013).

441 The court orders authorizing the program last for only ninety days, but the concept of the program is 

one of indefinite collection, and since May 2006 there has never been a lapse in court approval.
115

The pen register was in operation for no more than two days.442 And finally, the device 

recorded only the dialing information of one person: Smith himself. The police had no 

computerized ability to aggregate Smith’s dialing records with those of other individuals 

and gain additional insight from that analysis.

In contrast, for each of the millions of telephone numbers covered by the NSA’s 

Section 215 program, the agency obtains a record of all incoming and outgoing calls, the 

duration of those calls, and the precise time of day when they occurred. When the agency 

targets a telephone number for analysis, the same information for every telephone number 

with which the original number has had contact, and every telephone number in contact 

with any of those numbers. And, subject to regular program renewal by the FISA court, it 

collects these records every day, without interruption, and retains them for a five year time 

period. Sweeping up this vast swath of information, the government has explained, allows 

the NSA to use “sophisticated analytic tools” to “discover connections between individuals” 

and reveal “chains of communication” — a broader power than simply learning the 

telephone numbers dialed by a single targeted individual.443

To illustrate the greater scope of the NSA’s program, the pen register discussed in 

Smith might have shown that, during the time that Michael Lee Smith’s telephone was 

monitored, he dialed another number three times in a single day. That information could 

have simply evinced three failed attempts to reach the other number. The NSA’s collection 

program, however, would show not only whether each attempted call connected but also 

the precise duration and time of each call. It also would reveal whether and when the other 

telephone number called Smith and the length and time of any such calls. Because the NSA 

collects records continuously and stores them for five years, it would be in a position to see 

how frequently those two numbers contacted each other during the preceding five years 

and the pattern of their contact. And because the agency would have full access to the 

calling records of the other telephone number as well, it could examine the activity of that 

other number and see, for instance, whether it ever communicated with any of the same 

numbers as Smith over a five-year period, or what numbers it communicated with around 

the time of its calls with Smith. The agency could then do the same thing for every other 

number that Smith had communicated with in the past five years, employing what it calls 

contact-chaining analysis. It could then go further and analyze the complete calling records 

of every number that was called by any of the numbers that ever communicated with Smith 

— going three “hops” from the original number.

 

442 Smith, 442 U.S. at 737.

443 Administration White Paper at 13-14.
116

The NSA’s Section 215 program, therefore, is dramatically broader than the practice 

approved by the Supreme Court in Smith, which was directed at a single criminal suspect 

and gathered only “the numbers he dialed on his phone” during a limited period.444

The government argues that these differences are irrelevant under the Fourth 

Amendment. It argues that the third-party doctrine described earlier applies whether the 

government is obtaining data on one person or hundreds of millions. All of the information 

collected by the NSA in its calling records program is recorded by telephone companies for 

their own business purposes. Thus, just like the numbers that a telephone user dials, all of 

this information has been shared with telephone companies by their customers. As long as 

the third-party doctrine remains in force and assuming it applies regardless of the breadth 

of the data acquired, the NSA’s collection of calling records is not a search under the Fourth 

Amendment.

F. Privacy-Based Criticisms of Smith v. Maryland and the Third-Party Doctrine

The third-party doctrine, which serves as the constitutional underpinning of the 

NSA’s telephone records program, has been heavily criticized by legal scholars and others. 

The leading academic treatise on the Fourth Amendment calls the Supreme Court’s 

decision in United States v. Miller, which concluded that there are no privacy rights in bank 

records, “dead wrong,” asserting that its “woefully inadequate reasoning does great 

violence to the theory of Fourth Amendment protection the Court had developed in 

Katz.”

445 The same treatise opines that the Court’s rationale in Smith v. Maryland, which 

applied the doctrine to telephone calling records, “makes a mockery of the Fourth 

Amendment.”446 Even some defenders of the doctrine express the view that the Supreme 

Court “has never offered a clear argument in its favor.”447 A number of state supreme 

courts have rejected the doctrine with respect to the privacy guarantees of their own 

constitutions, even where those constitutions mimic the language of the Fourth 

Amendment.448 A number of such courts have explicitly disagreed with Smith v. Maryland’s 

 

444 Smith, 442 U.S. at 742.

445 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT §§ 2.7(b), (c) (5th ed.).

446 Id. 

447 Orin S. Kerr, The Case for the Third-Party Doctrine, 107 MICH. L. REV. 561, 564 (2009) (“The closest the 

Court has come to justifying the doctrine has been its occasional assertion that people who disclose 

communications to a third party ‘assume the risk’ that their information will end up in the hands of the police. 

But assumption of risk is a result rather than a rationale: A person must assume a risk only when the 

Constitution does not protect it. Exactly why the Constitution does not protect information disclosed to third 

parties has been left unexplained.”).

448 As of 2006, eleven states had rejected the federal third-party doctrine and ten others had given some 

reason to believe that they might reject it. See Stephen E. Henderson, Learning from All Fifty States: How to 

Apply the Fourth Amendment and Its State Analogs to Protect Third Party Information from Unreasonable 

Search, 55 CATH. U. L. REV. 373, 376 (2006).
117

reasoning and have concluded that the use of pen registers or the collection of telephone 

calling records implicates protected privacy interests.449 A number of federal magistrates 

and judges have rejected the doctrine as applied to cell site information transmitted or 

stored in connection with cell phone calls.450

Many criticisms of the third-party doctrine were first voiced by Supreme Court 

Justices who vigorously dissented from the decisions that established it. One such critique 

is that the doctrine is premised on an unrealistic view of privacy expectations. In Smith, for 

example, Justice Potter Stewart argued in dissent that the “central question” was whether a 

person making telephone calls from his home is entitled to assume that the numbers he 

dials, like the words he speaks, “‘will not be broadcast to the world.’”

451 In Justice Stewart’s 

view, “[w]hat the telephone company does or might do with those numbers is no more 

relevant to this inquiry than it would be in a case involving the conversation itself.”452

Although the numbers dialed from a telephone are “more prosaic than the conversation,” 

he wrote, “I doubt there are any who would be happy to have broadcast to the world a list 

of the local or long distance numbers they have called. This is not because such a list might 

in some sense be incriminating, but because it easily could reveal the identities of the 

persons and the places called, and thus reveal the most intimate details of a person’s 

life.”453

Justice Thurgood Marshall, joined by Justice William Brennan, similarly observed in 

his own Smith dissent: “Just as one who enters a public telephone booth is ‘entitled to 

assume that the words he utters into the mouthpiece will not be broadcast to the world,’ so 

too, he should be entitled to assume that the numbers he dials in the privacy of his home 

will be recorded, if at all, solely for the phone company’s business purposes.”454 The 

legitimacy of privacy expectations, in Justice Marshall’s view, depended “not on the risks an 

individual can be presumed to accept when imparting information to third parties, but on 

the risks he should be forced to assume in a free and open society.”455 The use of pen 

registers, he continued, was an “extensive intrusion” into privacy, because of “the vital role 

 

449 See, e.g., Commonwealth v. Melilli, 555 A.2d 1254, 1258 59 (Pa. 1989); Shaktman v. State, 553 So.2d 

148, 149 51 (Fla. 1989); State v. Thompson, 760 P.2d 1162, 1164 67 (Idaho 1988); State v. Gunwall, 720 P.2d 

808, 814 16 (Wash. 1986); People v. Sporleder, 666 P.2d 135, 140 42 (Colo. 1983); State v. Hunt, 450 A.2d 952, 

954 57 (N.J. 1982). 

450 See Testimony of Magistrate Judge Stephen W. Smith before the Subcommittee on the Constitution, 

Civil Rights and Civil liberties of the House Judiciary Committee, Hearing on ECPA reform and the Revolution 

in location based Technologies and Service (June 24, 2010).

451 Smith, 442 U.S. at 747 (Stewart, J., dissenting) (quoting Katz, 389 U.S. at 352).

452 Smith, 442 U.S. at 747 (Stewart, J., dissenting).

453 Smith, 442 U.S. at 748 (Stewart, J., dissenting).

454 Smith, 442 U.S. at 752 (Marshall, J., dissenting) (quoting Katz, 389 U.S. at 352).

455 Smith, 442 U.S. at 750 (Marshall, J., dissenting).
118

telephonic communication plays in our personal and professional relationships.”456 The 

prospect of unregulated governmental monitoring of calling records, Justice Marshall 

wrote, would “undoubtedly prove disturbing even to those with nothing illicit to hide”:

Many individuals, including members of unpopular political organizations or 

journalists with confidential sources, may legitimately wish to avoid 

disclosure of their personal contacts. Permitting governmental access to 

telephone records on less than probable cause may thus impede certain 

forms of political affiliation and journalistic endeavor that are the hallmark of 

a truly free society.457

A related critique of the third-party doctrine is that it reflects an all-or-nothing 

approach to privacy, under which a person’s entitlement to keep information secret is 

entirely vitiated whenever he or she shares that information with anyone, “even if the 

information is revealed on the assumption that it will be used only for a limited purpose 

and the confidence placed in the third party will not be betrayed” (as the Supreme Court 

put it in Miller).458 The result of this approach is that a person who shares information with 

a telephone company, bank, Internet service provider, credit card company, hospital, 

library, pharmacy, or any other institution — even on the understanding that the 

information will be kept confidential — forfeits any Fourth Amendment right to prevent 

the government from obtaining that information from the institution with which it was 

shared. 

In Smith, Justice Marshall took issue with this all-or-nothing approach: “Privacy is 

not a discrete commodity, possessed absolutely or not at all. Those who disclose certain 

facts to a bank or phone company for a limited business purpose need not assume that this 

information will be released to other persons for other purposes.”459 Regarding bank 

records, for instance, he wrote: “The fact that one has disclosed private papers to the bank, 

for a limited purpose, within the context of a confidential customer-bank relationship, does 

not mean that one has waived all right to the privacy of the papers.”460 Likewise, merely 

because people know “that a phone company monitors calls for internal reasons, it does 

not follow that they expect this information to be made available to the public in general or 

the government in particular.”461

 

456 Smith, 442 U.S. at 751 (Marshall, J., dissenting).

457 Smith, 442 U.S. at 751 (Marshall, J., dissenting) (internal citations omitted).

458 Miller, 425 U.S. at 443.

459 Smith, 442 U.S. at 749 (Marshall, J., dissenting).

460 California Bankers Ass’n v. Shultz, 416 U.S. 21, 95-96 (1974) (Marshall, J., dissenting).

461 Smith, 442 U.S. at 749 (Marshall, J., dissenting). The fact that a bank or telephone company is itself a 

participant in its customers’ transactions, according to Justice Marshall, “is irrelevant to the question of 
119

The implications of this all-or-nothing approach to privacy have grown since the 

1970s, as Americans increasingly must share personal information with companies in 

order to avail themselves of services and products that have become typical features of 

modern living. Another major criticism of the third-party doctrine, which has gained 

increased salience in light of these developments, challenges the notion that a customer of 

such companies, simply by “revealing his affairs to another,” truly chooses to risk “that the 

information will be conveyed by that person to the Government.”462 This criticism rejects 

the idea that conducting business that is essential to contemporary life represents a 

voluntary decision to lay bare the details of one’s habits to governmental scrutiny.

“For all practical purposes,” Justice Brennan observed in his Miller dissent, “the 

disclosure by individuals or business firms of their financial affairs to a bank is not entirely 

volitional, since it is impossible to participate in the economic life of contemporary society 

without maintaining a bank account.”463 Justice Marshall, dissenting in Smith, expanded on 

this point:

Implicit in the concept of assumption of risk is some notion of choice. At least 

in the third-party consensual surveillance cases, which first incorporated risk 

analysis into Fourth Amendment doctrine, the defendant presumably had 

exercised some discretion in deciding who should enjoy his confidential 

communications. By contrast here, unless a person is prepared to forgo use 

of what for many has become a personal or professional necessity, he cannot 

help but accept the risk of surveillance. It is idle to speak of “assuming” risks 

in contexts where, as a practical matter, individuals have no realistic 

alternative.464

There are cases in which the Supreme Court has rejected the notion that there is no 

privacy interest in what is disclosed to a third party.465 The third-party doctrine was 

recently questioned at the Supreme Court by Justice Sonia Sotomayor, who wrote in United 

States v. Jones that the assumption-of-risk approach “is ill suited to the digital age, in which 

 

whether a Government search or seizure is involved.” California Bankers Ass’n, 416 U.S. at 95 (Marshall, J., 

dissenting).

462 Miller, 425 U.S. at 443 (citing White, 401 U.S. at 751-52); see Smith, 442 U.S. at 744.

463 Miller, 425 U.S. at 451 (Brennan, J., dissenting) (quoting Burrows v. Superior Court, 529 P.2d 590, 596 

(Cal. 1974)); see id. (“In the course of such dealings, a depositor reveals many aspects of his personal affairs, 

opinions, habits and associations. Indeed, the totality of bank records provides a virtual current biography.”).

464 Smith, 442 U.S. at 749-50 (Marshall, J., dissenting) (internal citations omitted).

465 See Stephen E. Henderson, The Timely Demise of the Fourth Amendment Third Party Doctrine, 96 IOWA 

L. REV. BULL. 39, 41-43 (2011). See also Department of Justice v. Reporters Committee for Freedom of the Press, 

489 U.S. 749 (1989) (in FOIA case, finding a privacy interest in the FBI’s compilation of police rap sheets, even 

though the events summarized in the rap sheets had previously been disclosed to the public, noting: “In an 

organized society, there are few facts that are not at one time or another divulged to another.”).
120

people reveal a great deal of information about themselves to third parties in the course of 

carrying out mundane tasks,” including “the phone numbers that they dial or text,” “the 

URLs that they visit and the e-mail addresses with which they correspond,” and “the books, 

groceries, and medications they purchase.”466 As this comment suggests, the lack of any 

meaningful option to withhold personal information from third-party institutions is even 

greater today than it was at the time of Smith v. Maryland, because of intervening 

developments in communications and commerce.

G. Fourth Amendment Implications of Technological Advancements

The societal developments noted above, abetted by changes in technology, have 

increased the range of information available to government investigators without a 

warrant. Meanwhile, the same technological advances fueling this trend have markedly 

heightened the government’s capacity to collect, aggregate, and analyze immense 

quantities of information — a development amply demonstrated by the NSA’s telephone 

records program. The Supreme Court has acknowledged that new technology has the 

potential to erode Fourth Amendment protections,467 and that it can also alter societal 

conceptions about the legitimacy of certain privacy expectations.468 Given these 

considerations, the Supreme Court’s decision in Smith v. Maryland may not forever settle 

the question of whether individuals have a reasonable expectation of privacy in their 

telephone calling records, especially in the context of bulk and indefinite collection.

The potential for enhanced surveillance technology to undermine privacy 

guarantees was already evident in the 1970s when the third-party doctrine was being 

developed by the Supreme Court — leading some Justices to warn in dissents that unless 

constitutional jurisprudence were to evolve in response to such developments, the liberty 

secured by the Fourth Amendment would irredeemably wither.

In United States v. Miller, for instance, Justice Brennan in his dissenting opinion 

noted that Fourth Amendment doctrine had long condemned “violent searches and 

invasions of an individual’s right to the privacy of his dwelling,” yet “[t]he imposition upon 

privacy, although perhaps not so dramatic, may be equally devastating when other 

methods are employed.”

 

466 Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring).

467 See Kyllo, 533 U.S. at 33-34.

468 See Quon, 130 S. Ct. at 2629-30 (“Rapid changes in the dynamics of communication and information 

transmission are evident not just in the technology itself but in what society accepts as proper behavior. . . . 

[T]he Court would have difficulty predicting how employees’ privacy expectations will be shaped by those 

changes or the degree to which society will be prepared to recognize those expectations as reasonable.”).
121

Development of photocopying machines, electronic computers and other 

sophisticated instruments have accelerated the ability of government to 

intrude into areas which a person normally chooses to exclude from prying 

eyes and inquisitive minds. Consequently judicial interpretations of the reach 

of the constitutional protection of individual privacy must keep pace with the 

perils created by these new devices.469

A failure of constitutional law to respond to developing technology, Justice Marshall 

similarly observed in a dissent, would functionally diminish the Amendment’s protections 

against the very sort of evils that it was designed to shield against: “Our Fourth 

Amendment jurisprudence should not be so wooden as to ignore the fact that through 

micro-filming and other techniques of this electronic age, illegal searches and seizures can 

take place without the brute force characteristic of the general warrants which raised the 

ire of the Founding Fathers.”470

More recently, the Supreme Court has acknowledged that it “would be foolish to 

contend that the degree of privacy secured to citizens by the Fourth Amendment has been 

entirely unaffected by the advance of technology.”471 The Court recognized that it must 

sometimes confront the question of “what limits there are upon this power of technology to 

shrink the realm of guaranteed privacy.”472 In a case involving a thermal-imaging device 

aimed at a private home from a public street, which revealed details about the interior of 

the home that previously could have been known only by physical entry, the Court declared 

use of the device to be a “search,” rejecting a rigid interpretation of the Fourth Amendment 

that “would leave the homeowner at the mercy of advancing technology.”473

Such technological advancement during the past thirty years, particularly in the 

storage, transmission, and manipulation of digital information, has allowed the NSA to 

institute a program of amassing and analyzing telephone records that is exponentially 

more far-reaching than the pen register surveillance addressed by the Supreme Court in 

 

469 Miller, 425 U.S. at 451-52 (Brennan, J., dissenting) (quoting Burrows, 529 P.2d at 593-96).

470 California Bankers Ass’n, 416 U.S. at 95 (Marshall, J., dissenting) (citing Entick v. Carrington, 19 How. 

St. Tr. 1029 (1765), and Stanford v. Texas, 379 U.S. 476, 483-84 (1965)); see also Smith, 442 U.S. at 746 

(Stewart, J., dissenting) (echoing observation that “the broad and unsuspected governmental incursions into 

conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment 

safeguards” (quoting United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. at 313)).

471 Kyllo, 533 U.S. at 33-34.

472 Kyllo, 533 U.S. at 34.

473 Kyllo, 533 U.S. at 35, 40.
122

1979. At the same time, the ubiquity of mobile phone technology has increasingly placed 

telephone-based connections at the center of human interaction.474

Given the unprecedented breadth of the NSA’s collection of telephone records under 

Section 215 of the Patriot Act, coupled with the agency’s enhanced ability to sift through 

those records and map out an individual’s communications network, and in light of changes 

in Americans’ habits caused by modern technology, it is possible that the contemporary 

Supreme Court — if called upon to evaluate the NSA’s program under the Fourth 

Amendment — would not consider Smith v. Maryland to have resolved the question. 

Reaching the conclusion that a Fourth Amendment interest was implicated by bulk, 

ongoing calling record collection would require the Court to scale back the third-party 

doctrine, a step the Court has not taken. But a recent decision, involving Global-PositioningSystem (“GPS”) monitoring, indicates that a majority of Justices believes that the rise of 

novel technological tools for the collection, aggregation, and analysis of large quantities of 

information demands judicial recognition that not everything an individual exposes to the 

public loses Fourth Amendment protection.

In United States v. Jones, the Supreme Court ruled that placing a GPS device on a Jeep 

driven by a criminal suspect, and then using the device to track the Jeep’s movements 

continuously for four weeks, was a “search” under the Constitution. The Court’s majority 

opinion based this conclusion on traditional, trespass-related Fourth Amendment 

principles: by installing a GPS device on the Jeep, the Court wrote, the government 

“physically occupied private property for the purpose of obtaining information,” and the 

Court had “no doubt” that “such a physical intrusion would have been considered a ‘search’

within the meaning of the Fourth Amendment when it was adopted.”475

By focusing on the physical placement of a GPS device on the vehicle, the opinion left 

unresolved whether its driver reasonably could expect privacy in its whereabouts — a 

matter that he exposed to others by driving on public streets. “It may be that achieving the 

same result through electronic means, without an accompanying trespass, is an 

unconstitutional invasion of privacy,” the majority said, “but the present case does not 

require us to answer that question.”476

 

474 See In re Orders Authorizing Use of Pen Registers & Trap & Trace Devices, 515 F. Supp. 2d 325, 328 

(E.D.N.Y. 2007) (“Telephone use has expanded rapidly since the constitutionality of pen registers was 

examined in 1979. Today, Americans regularly use their telephones not just to dial a phone number, but to 

manage bank accounts, refill prescriptions, check movie times, and so on.”).

475 Jones, 132 S. Ct. at 949. As Justice Sotomayor’s concurring opinion put it: “The Government usurped 

Jones’ property for the purpose of conducting surveillance on him, thereby invading privacy interests long 

afforded, and undoubtedly entitled to, Fourth Amendment protection.” Id. at 954 (Sotomayor, J., concurring).

476 Jones, 132 S. Ct. at 954.
123

Justice Samuel Alito, joined by three other justices, agreed with the majority’s result, 

but not its reasoning, which he wrote “largely disregards what is really important . . . the 

use of a GPS for the purpose of long-term tracking.”477 He would instead have applied the 

two-part Katz test to the GPS surveillance, asking whether monitoring the suspect’s vehicle 

continuously for four weeks “involved a degree of intrusion that a reasonable person would 

not have anticipated.”478 Answering that question, he concluded that “longer term GPS 

monitoring in investigations of most offenses impinges on expectations of privacy,” 

because in such cases “society’s expectation has been that law enforcement agents and 

others would not — and indeed, in the main, simply could not — secretly monitor and 

catalogue every single movement of an individual’s car for a very long period.”479

Similar concerns are reflected in the concurring opinion written by Justice 

Sotomayor, who provided the fifth vote for the majority opinion. Agreeing with Justice Alito 

“that, at the very least, longer term GPS monitoring in investigations of most offenses 

impinges on expectations of privacy,” Justice Sotomayor wrote that, even with respect to 

short-term monitoring, the ability of modern technology to generate “a precise, 

comprehensive record of a person’s public movements that reflects a wealth of detail about 

her familial, political, professional, religious, and sexual associations” has Fourth 

Amendment implications deserving of special attention.480 That is particularly so, she 

wrote, because the government “can store such records and efficiently mine them for 

information years into the future.”481 Thus, in assessing the constitutionality of such 

technology with respect to GPS tracking, Justice Sotomayor wrote that the proper question 

is “whether people reasonably expect that their movements will be recorded and 

aggregated in a manner that enables the Government to ascertain, more or less at will, their 

political and religious beliefs, sexual habits, and so on.”482

The observations of Justices Alito and Sotomayor echo the rationale of the Court of 

Appeals decision in Jones, which rested on the insight that knowing the whole of a person’s 

activity is different from knowing only parts of it, “because that whole reveals more —

sometimes a great deal more — than does the sum of its parts.”483 Prolonged surveillance, 

the appellate court wrote, “reveals types of information not revealed by short-term 

 

477 Jones, 132 S. Ct. at 961 (Alito, J., concurring in the judgment) (emphasis in original).

478 Jones, 132 S. Ct. at 964 (Alito, J., concurring in the judgment).

479 Jones, 132 S. Ct. at 964 (Alito, J., concurring in the judgment).

480 Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring).

481 Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring).

482 Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring).

483 United States v. Maynard, 615 F.3d 544, 558 (D.C. Cir. 2010), aff’d on other grounds sub nom. United 

States v. Jones, 132 S. Ct. 945 (2012). The circuit court invoked the term “mosaic theory” to describe this 

phenomena.
124

surveillance,” and these types of information “can each reveal more about a person than 

does any individual trip viewed in isolation.”484

Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by 

any single visit, as does one’s not visiting any of these places over the course 

of a month. The sequence of a person’s movements can reveal still more; a 

single trip to a gynecologist’s office tells little about a woman, but that trip 

followed a few weeks later by a visit to a baby supply store tells a different 

story.485

“A person who knows all of another’s travels,” the court continued, “can deduce 

whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful 

husband, an outpatient receiving medical treatment, an associate of particular individuals 

or political groups — and not just one such fact about a person, but all such facts.”486

If this approach were applied to the NSA’s collection of telephone records under 

Section 215, it might lead to the conclusion that customers’ disclosure of calling 

information to a telephone company — to enable the completion and billing of individual 

calls — is different from relinquishing the totality of their calling histories over a five-year 

period for digitally facilitated analysis. Just as the sum of one’s movements in a vehicle over 

a four-week period tells a different story than a smattering of individual trips, the 

comprehensive record of a person’s entire telephone communication history over five 

years reveals much more than the log of a day’s worth of calls.

We stress that there is no indication that the government has used the telephone 

records collected under Section 215 to trace religious or political affiliations or deduce 

other sensitive matters. But in Jones, the government likewise was not using the location 

data to deduce who was a weekly churchgoer, a heavy drinker or an unfaithful husband, yet 

five Justices agreed nevertheless that the long-term collection of location data constituted a 

search under the Fourth Amendment.

Justice Sotomayor’s Jones concurrence explicitly drew a connection between her 

analysis of GPS monitoring and Smith v. Maryland and other decisions applying the thirdparty doctrine. 487 Her concurrence suggested that “it may be necessary to reconsider the 

 

484 Maynard, 615 F.3d at 562.

485 Maynard, 615 F.3d at 562.

486 Maynard, 615 F.3d at 562.

487 In defense of warrantless GPS monitoring, the government’s brief had relied on Smith v. Maryland, 

arguing that disclosure of one’s location to the public is like the disclosures of calling information to a 

telephone company. See Brief for the United States at 20-21, 23-24, 31-33, United States v. Jones, No. 10-1259 

(U.S. Aug. 2011).
125

premise that an individual has no reasonable expectation of privacy in information 

voluntarily disclosed to third parties.”488 She elaborated:

This approach is ill suited to the digital age, in which people reveal a great 

deal of information about themselves to third parties in the course of 

carrying out mundane tasks. People disclose the phone numbers that they 

dial or text to their cellular providers; the URLs that they visit and the e-mail 

addresses with which they correspond to their Internet service providers; 

and the books, groceries, and medications they purchase to online 

retailers.489

As the disclosure of such information to third parties becomes more and more 

unavoidable, Justice Sotomayor observed, American society may or may not develop 

concomitant expectations of privacy in the confidentiality of this information vis-à-vis the 

government. But such expectations “can attain constitutionally protected status only if our 

Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.”490

Echoing and citing Justice Marshall’s dissenting opinion in Smith v. Maryland, Justice 

Sotomayor concluded: “I would not assume that all information voluntarily disclosed to 

some member of the public for a limited purpose is, for that reason alone, disentitled to 

Fourth Amendment protection.”491

H. Relevance of the Third-party Doctrine to the NSA Telephone Records 

Program

Beyond generalized criticisms of the third-party doctrine, the more pertinent 

question may be whether the doctrine can be stretched to exempt from Fourth Amendment 

scrutiny a program as broad and long-running as the Section 215 telephone metadata 

program. That program goes far beyond anything that has ever before been upheld under 

the doctrine. As suggested by the observations of Justices Alito and Sotomayor in United 

States v. Jones, collectively representing the views of five Justices, the Supreme Court might 

find that the third-party doctrine, regardless of its validity as applied to traditional 

pen/trap devices and particularized subpoenas, does not apply to the compelled disclosure 

of data on a scope as broad and persistent as the NSA’s telephone records program. One 

district court has recently stated an argument for limiting the third-party doctrine in a case 

challenging the constitutionality of the NSA telephone records program. In Klayman v. 

Obama, Judge Richard Leon analyzed in detail the changes in technology since Smith was 

 

488 Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring).

489 Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring).

490 Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring).

491 Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring) (citing Smith, 442 U.S. at 749 (Marshall, J., 

dissenting)).
126

decided in 1979 and compared the capabilities of the pen register at issue in Smith to the 

scope of the NSA telephone records program. He concluded that “present-day 

circumstances” are “so thoroughly unlike those considered by the Supreme Court thirtyfour years ago” that Smith should not apply to analysis of the telephone records 

program.492

However, the decision in Klayman v. Obama, which the government has appealed, 

represents the opinion of a single district court judge. Illustrating the deep split among 

courts over the breadth of the third-party doctrine, a different district court has upheld the 

215 program on the basis of Smith v. Maryland.

493Until the Supreme Court rules otherwise,

Smith v. Maryland and the third-party doctrine remain in force today. Government lawyers 

are entitled to rely on them when appraising the constitutionality of a given action.

I. Implications of Regarding the Metadata Program as a “Search”

If the Supreme Court reversed or narrowed Smith, for example, by holding that 

certain bulk collections of data were covered by the Fourth Amendment, this would 

establish only that the NSA’s collection of telephone records pursuant to Section 215 of the 

Patriot Act is a “search” under the Fourth Amendment. The next question would be 

whether this search — carried out to prevent international terrorism, not to prosecute 

ordinary crimes after they have been committed — requires a warrant. The Supreme Court 

has left open the question of whether there is a “foreign intelligence exception” to the 

Fourth Amendment’s warrant requirement that permits the executive branch to engage in 

warrantless surveillance “with respect to the activities of foreign powers, within or without 

this country.”494 A number of lower courts have concluded that such an exception exists 

“when the object of the search or the surveillance is a foreign power, its agent or 

collaborators.”495

 

492 Memorandum Opinion at 45, Klayman v. Obama, No. 13-0851 (D.D.C. Dec. 16, 2013).

493 See Memorandum & Order at 38-44, ACLU v. Clapper, No. 13-3994 (S.D.N.Y. Dec. 27, 2013).

494 United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. at 308. When the Court ruled in 

Katz that warrantless government eavesdropping on telephone conversations violates the Constitution, it was 

careful to note that “a situation involving the national security” might call for a different result, and that in 

such situations “safeguards other than prior authorization by a magistrate” might satisfy the Fourth 

Amendment’s reasonableness requirement. Katz, 389 U.S. at 358 n.23. A few years later, the Court concluded 

that there is no exception to the Fourth Amendment’s warrant requirement for domestic national security 

surveillance that does not involve foreign powers. United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 

407 U.S. at 324. The legitimacy of warrantless foreign intelligence surveillance has never been resolved by the 

Court, see In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004, 

1010 (FISA Ct. Rev. 2008), in part because the passage of FISA in the late 1970s established a statutory 

framework for such surveillance that was followed by the executive branch until the events of September 11, 

2001.

495 United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980); accord United States v. Butenko, 

494 F.2d 593 (3rd Cir. 1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973). In more recent years, the 
127

If no warrant is required for the government to collect telephone records in pursuit 

of foreign intelligence, a further decision would have to be made about whether the NSA’s 

collection of these records under Section 215 is constitutionally “reasonable,” which would 

involve balancing the governmental interests at stake with the program’s intrusion into 

privacy.496

J. “Just Because We Can Do Something Doesn’t Mean We Necessarily Should”497

To hold, as most courts have, that telephony metadata enjoys no privacy protection 

under the Fourth Amendment does not mean that such data is without privacy 

implications. Telephone calling records, especially when assembled in bulk, clearly 

implicate privacy interests as a matter of public policy. The significance of those privacy 

implications is magnified in the digital era. Although the government may rely on Smith v. 

Maryland and the third-party doctrine when formulating legal arguments, whether it 

should, as matter of sound public policy, make use of the fullest extent of its authority 

under current Fourth Amendment doctrine is a different question. The comprehensive 

scope of the 215 program is enabled by technology that did not exist when the Supreme 

Court decided Smith v. Maryland. While reaping the benefit of such technological prowess, 

the NSA’s program relies on a legal doctrine formulated before the privacy implications of 

such technology could be factored into the Court’s Fourth Amendment calculus. This legal 

doctrine, moreover, was fashioned at a time when American life did not involve sharing 

confidential information with as wide a range of institutions as it does today, and before 

telephone-based communication was as pervasive a feature of life.

It should be remembered that the Katz standard for evaluating the application of the 

Fourth Amendment was not always the standard. For almost forty years, from 1928, in 

Olmstead v. United States, reinforced by Goldman v. United States, in 1942, the Fourth 

Amendment trigger was physical penetration. The development of electronic surveillance 

technology, allowing the government to listen to and record telephone booth conversations 

electronically, led the Supreme Court to revise its approach to the Fourth Amendment. 

Now, forty-seven years after Katz, with dramatic changes in technology, including the 

 

Foreign Intelligence Surveillance Court of Review has found such an exception for surveillance “directed at a 

foreign power or an agent of a foreign power reasonably believed to be located outside the United States.” In 

re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d at 1011.

496 In Klayman v. Obama, the court concluded that, in light of “serious doubts about the efficacy of the 

metadata collection program” and the program’s infringement on “‘that degree of privacy’ that the Founders 

enshrined in the Fourth Amendment,” the “plaintiffs have a substantial likelihood of showing that their 

privacy interests outweigh the Government’s interest in collecting and analyzing bulk telephony metadata 

and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth 

Amendment.” Memorandum Opinion at 62-64, Klayman v. Obama, No. 13-0851 (D.D.C. Dec. 16, 2013).

497 Press Conference by the President (Dec. 20, 2013), available at http://www.whitehouse.gov/thepress-office/2013/12/20/press-conference-president.
128

ability to record calling data for almost every citizen on an ongoing basis, may be the 

occasion for the Supreme Court to, once again, expand on the Fourth Amendment to protect 

citizens’ calling patterns. These Fourth Amendment questions are currently being litigated 

in several cases pending in federal court which may ultimately find their way to the 

Supreme Court. We explore the policy questions in the next section of this Report, where 

we weigh the privacy interests implicated by the Section 215 program against the national 

security benefits it provides.

III. FIRST AMENDMENT 

The First Amendment to the United States Constitution protects several 

fundamental rights including the freedoms of speech and association. The Amendment 

reads:

Congress shall make no law respecting an establishment of religion, or 

prohibiting the free exercise thereof; or abridging the freedom of speech, or 

of the press; or the right of the people peaceably to assemble, and to petition 

the Government for a redress of grievances.

Although the amendment’s text does not explicitly refer to a freedom of association, 

the Supreme Court has long held that the First Amendment freedom of speech 

encompasses the “freedom to associate with others for the common advancement of 

political beliefs and ideas.”498

A. Freedom of Association Entails Privacy of Association

The Court first described the freedom of association as a critical constitutionally 

protected right in NAACP v. Alabama in 1958. In that case, the NAACP challenged a state 

court order requiring it to disclose its membership lists. The NAACP objected that revealing 

the identities of its members would impair the rights of these individuals to engage in 

“lawful association in support of their common beliefs.” In finding that this claim deserved 

constitutional protection, the Supreme Court stated: “Effective advocacy of both public and 

private points of view, particularly controversial ones, is undeniably enhanced by group 

association, as this Court has more than once recognized by remarking upon the close 

nexus between the freedoms of speech and assembly.”499 In subsequent years, the Supreme 

 

498 Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973).

499 NAACP v. Alabama, 357 U.S. 449, 460 (1958) (internal citations omitted). The Court rejected the State 

of Florida’s assertion that it was entitled to the membership lists in order to assess whether the NAACP was 

doing business in the state without properly registering. 
129

Court made clear that this freedom of association is grounded in the First Amendment.500

The freedom of association is thus protected as “an indispensable means of preserving” the 

First Amendment right of freedom of speech and other individual liberties.

501 It protects 

not only actual speech, but also the associations among people, especially when they come 

together to advance common beliefs such as those on political, religious, cultural or 

economic matters.502

Government action may impinge on such First Amendment rights even if it is not 

directly aimed at limiting freedom of speech or association. The Supreme Court has 

recognized that the First Amendment “rights of free speech and association . . . . are 

protected not only against heavy-handed frontal attack, but also from being stifled by more 

subtle governmental interference.”503 In particular, disclosure of associations among 

individuals, and of connections between individuals and advocacy groups, can have a 

chilling effect on the exercise of associational rights that impinges on these constitutional 

freedoms. In originally outlining the freedom of association in NAACP v. Alabama, the Court 

explained that individuals should be free not only to join together in advocacy but also to 

do so without fear that their associations will be revealed, noting that:

It is hardly a novel perception that compelled disclosure of affiliation with 

groups engaged in advocacy may constitute as effective a restraint on 

freedom of association as the forms of governmental action in the cases 

above were thought likely to produce upon the particular constitutional 

rights there involved. This Court has recognized the vital relationship 

between freedom to associate and privacy in one’s associations.

504

The Court continued by noting that this safeguard was particularly important 

“where a group espouses dissident beliefs.”505 Thus, the constitutional guarantee of 

 

500 See Buckley v. Valeo, 424 U.S. 1, 15 (1976) (noting that after NAACP v. Alabama, “[s]ubsequent 

decisions have made clear that the First and Fourteenth Amendments guarantee freedom to associate with 

others for the common advancement of political beliefs and ideas”) (internal quotation marks omitted).

501 Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).

502 See NAACP v. Alabama, 357 U.S. at 460-61.

503 Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 544 (1963) (internal citations and 

quotation marks omitted) (finding disclosure requirement chilled freedom of association); see also NAACP v. 

Alabama, 357 U.S. at 461 (“In the domain of these indispensable liberties, whether of speech, press, or 

association . . . abridgement of such rights, even though unintended, may inevitably follow from varied forms 

of governmental action.”). An indirect intrusion on First Amendment rights, such as that caused by disclosure 

requirements, can still have a serious chilling effect on associational rights and be subject to exacting scrutiny 

as described below. 

504 NAACP v. Alabama, 357 U.S. at 462.

505 NAACP v. Alabama, 357 U.S. at 462.
130

associational rights under the First Amendment “encompasses protection of privacy of 

association in organizations.”506

The protection for privacy of association stems from recognition that individuals 

who support controversial causes may be subject to harassment or intimidation if their 

connections with organizations promoting these causes are disclosed.507 The Court has also 

acknowledged the need to protect privacy where revealing associations to the government 

could subject an individual to detrimental government action. For example, the Court 

struck down a requirement that public school teachers identify all the organizations in 

which they were members, noting that “the pressure upon a teacher to avoid any ties which 

might displease those who control his professional destiny would be constant and 

heavy.”508

Since first recognizing this right to privacy in one’s associations, the Court has found 

in numerous cases that rules requiring disclosure of affiliations violated the First 

Amendment because they had a chilling effect that undermined the freedom of 

association.509 However, the Court has held that a disclosure requirement can be 

consistent with the First Amendment where it is closely tied to a compelling state 

interest.510

Accordingly, the right to associate privately is not absolute, nor are all government 

actions that reveal connections among individuals constitutionally suspect. The test to be 

applied in assessing whether the government action violates the First Amendment depends 

 

506 Gibson, 372 U.S. at 544.

507 Early cases recognized the pressures on NAACP supporters in the civil rights era. See NAACP v. 

Alabama, 357 U.S. at 462; Gibson v. Florida Legislative Investigation Committee, 372 U.S. at 556-57 (finding 

that privacy of association is “all the more essential here, where the challenged privacy is that of persons 

espousing beliefs already unpopular with their neighbors”). Later cases recognized the same dynamic in the 

case of minor political parties such as the Socialist Workers Party. See Brown v. Socialist Workers ‘74 

Campaign Comm., 459 U.S. 87 (1982).

508 Shelton v. Tucker, 364 U.S. 479, 486 (1960).

509 See, e.g., Brown, 459 U.S. at 88 (holding Ohio law requiring disclosure of political party’s campaign 

contributors and recipients of campaign disbursements violated First Amendment freedom of association); 

Baird v. State Bar of Arizona, 401 U.S. 1 (1971) (holding that the “First Amendment’s protection of 

association” prohibits states from inquiring about individuals’ membership in Communist Party in connection 

with applications for law licenses); Gibson, 372 U.S. at 558 (prohibiting state from compelling organization to 

reveal which of its members also appeared on a list of suspected members of the Communist party); see also 

Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 204 (1999) (holding that rules 

requiring disclosure of identities of individuals who paid to circulate ballot initiatives violated First 

Amendment). 

510 See John Doe No. 1, 130 S. Ct. 2811 (2010) (upholding state public records requirement that to initiate 

any citizen referendum, proponents must file petition disclosing names of signers, where most referenda 

involved uncontroversial matters and state had important interest in preserving integrity of electoral 

process).
131

on the strength of the chilling effect. Government actions that may significantly chill the 

exercise of this right by forcing disclosure of individuals’ associations to the government 

are subject to “exacting scrutiny.”511 This is a high standard, but it is not an impossible test. 

As the Supreme Court explained in John Doe No. 1 v. Reed, this “standard requires a 

substantial relation between the disclosure requirement and a sufficiently important 

governmental interest. To withstand this scrutiny, the strength of the governmental 

interest must reflect the seriousness of the actual burden on First Amendment rights.”512

Thus, where there is a significant chilling effect, a court must assess the importance 

of the government’s interest alongside the degree to which its action interferes with the 

freedom of association. In balancing these two considerations, the court will also evaluate 

whether the government may be able to achieve its purposes through means that are less 

intrusive on constitutionally protected liberties: “If the State has open to it a less drastic 

way of satisfying its legitimate interests, it may not choose a legislative scheme that 

broadly stifles the exercise of fundamental personal liberties.”513 In John Doe No. 1, the 

Court considered a Public Records Act requirement that to initiate any citizen referendum, 

proponents must file a petition disclosing the names of signers. The Court found that the 

disclosure requirement was closely tied to the state’s important interest in preserving the 

integrity of the electoral process, and held that this interest was sufficient to justify the 

chilling effect of this disclosure requirement.514 

The Supreme Court stressed the element of overbreadth in holding that a conviction 

for failing to turn over the NAACP membership list to a legislative committee investigating 

the Communist Party’s activities violated the First Amendment. The Court stressed that the 

state should demonstrate a nexus between the illegal conduct it is investigating and the 

organization whose members it seeks to identify. While noting that it did not deny “the 

existence of the underlying legislative right to investigate . . . subversive activities by 

Communists or anyone else,” the Court instructed that “groups which themselves are 

neither engaged in subversive or other illegal or improper activities nor demonstrated to 

have any substantial connections with such activities are to be protected in their rights of 

free and private association.”515

 

511 John Doe No. 1, 130 S. Ct. at 2818.

512 John Doe No. 1, 130 S. Ct. at 2818 (internal citations and quotation marks omitted); see also Buckley v. 

Valeo, 424 U.S at 25 (stating that even a “significant interference with protected rights of political association 

may be sustained if the State demonstrates a sufficiently important interest and employs means closely 

drawn to avoid unnecessary abridgment of associational freedoms”) (internal citations omitted).

513 Kusper, 414 U.S. at 58-59 (finding Illinois statute restricting voting in primaries infringes upon the 

right of free political association protected by the First and Fourteenth Amendments).

514 John Doe No. 1, 130 S. Ct. at 2819.

515 Gibson v. Florida Legislative Investigation Committee, 372 U.S. at 557-58.
132

A less stringent test applies if a court finds that the chilling effect of the government 

action is not significant. In the context of a minor political party’s attempt to open its 

primary election to all voters contrary to the existing state voting system, the Supreme 

Court stated that while “severe burdens on associational rights” are subject to “strict 

scrutiny,” a much lower standard of review applies when “regulations impose lesser 

burdens.”516 Where the burden on the freedom of association is minimal, the state’s 

“important regulatory interests will usually be enough to justify reasonable, 

nondiscriminatory restrictions.”517 Thus, the rigor of the Court’s inquiry will depend on the 

degree to which the government action is found to burden associational rights.

B. The NSA’s Telephone Records Program Implicates the First Amendment

Although the NSA’s telephone records program does not include an overt disclosure 

requirement of the type evaluated in such cases as NAACP v. Alabama, its operation 

similarly results in the compulsory disclosure of information about individuals’

associations to the government. Like the government’s collection of membership lists, its 

bulk collection of telephone records makes that information available for government 

analysis and can create a chilling effect on those whose records are being collected. As 

discussed in the next part of this Report, telephone metadata can be highly revealing of the 

patterns of individuals’ connections and associations, including the frequency of all 

contacts among individuals and organizations. The networks revealed will necessarily 

include individuals’ connections with advocacy groups and others whose political, social, 

religious, or cultural missions the individuals support — the type of associations at the core 

of the Constitution’s protection for freedom of association. 

The Supreme Court has acknowledged that government surveillance programs can 

implicate First Amendment rights in addition to Fourth Amendment rights.518 Most 

 

516 Clingman v. Beaver, 544 U.S. 581, 586-87 (2005). The case involved a state primary election system 

that only permitted the Libertarian Party of Oklahoma to open its primary to its own members and registered 

independents. The Court found that the state’s refusal to permit registered members of other political parties 

to vote in the Libertarian Party’s primary did not limit the party’s capacity to communicate with the public 

and its members or to recruit new members. The Court therefore found that the rule only “minimally” 

burdened the party’s freedom of association. Id. at 587-90. 

517 Id. at 586-87.

518 United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. at 313 (“National security cases, 

moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of 

‘ordinary’ crime. Though the investigative duty of the executive may be stronger in such cases, so also is there 

greater jeopardy to constitutionally protected speech.”) Some courts of appeals have concluded that 

government surveillance that complies with Fourth Amendment standards will also survive scrutiny under 

the First Amendment. See, e.g., Reporters Committee for Freedom of the Press v. American Telephone and 

Telegraph Company, 593 F.2d 1030, 1058 (D.C. Cir. 1978) (holding telephone companies’ release of toll call 

records to law enforcement did not violate First or Fourth Amendment); Gordon v. Warren Consol. Bd. Of 

Educ., 706 F.2d 778, 781 n.3 (6th Cir. 1983) (holding surveillance by undercover officer did not violate First 

or Fourth Amendments).
133

recently, Justice Sonia Sotomayor noted in her concurring opinion in United States v. Jones 

that “[a]wareness that the Government may be watching chills associational and expressive 

freedoms.”519 However, in the cases decided so far, the Court has not reached the 

underlying question of whether the First Amendment has been violated, because the Court 

has found that the individuals challenging the surveillance program are not legally entitled 

to do so because they are unable to show that they are directly affected by the monitoring. 

In Laird v. Tatum, for instance, the Supreme Court considered a challenge to an 

Army program that gathered information on “public activities that were thought to have at 

least some potential for civil disorder” in order to enable contingency planning for how the 

government should respond in the event of such disorder.520 The Court found that the 

individuals who filed the lawsuit were not legally entitled to challenge the government 

program, because they could only point to their “knowledge that a governmental agency 

was engaged” in a “data-gathering” plan and their fear that “in the future” they might suffer 

from some detrimental action as a result.521 Most recently, the Supreme Court held in 

Clapper v. Amnesty International USA that attorneys and advocacy groups could not 

challenge the FISA Amendments Act in court because they could not show that they 

themselves were imminently likely to be subject to surveillance.522 The Court did not reach 

the question of whether the surveillance under that program would have a sufficient 

chilling effect to implicate First Amendment rights.523 

Some federal courts of appeals have considered cases in which there was not a 

standing issue and have more explicitly recognized the impact of government surveillance 

 

519 Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring).

520 Laird v. Tatum, 408 U.S. 1, 6 (1972).

521 Laird, 408 U.S. at 10-11. The Court held that the plaintiffs lacked legal standing to bring their 

challenge.

522 Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013). The question of whether an individual 

is entitled to bring such a legal challenge is separate from the question of whether a surveillance program 

actually infringes First Amendment rights. The chilling effect that a surveillance program may impose on 

speech and association may implicate the First Amendment and yet still not be sufficient to support an 

individual’s right to file a lawsuit. As the U.S. Court of Appeals for the District of Columbia Circuit has 

explained: “The harm of ‘chilling effect’ is to be distinguished from the immediate threat of concrete, harmful 

action. The former consists of present deterrence from First Amendment conduct because of the difficulty of 

determining the application of a regulatory provision to that conduct, and will not by itself support standing. 

The latter — imminence of concrete, harmful action such as threatened arrest for specifically contemplated 

First Amendment activity — does support standing.” United Presbyterian Church in the U.S.A. v. Reagan, 738 

F.2d 1375, 1380 (D.C. Cir. 1984) (finding individuals lacked standing to challenge Executive Order 12333, 

which sets forth the framework for U.S. intelligence gathering).

523 The Court noted in passing that previous cases “had held that constitutional violations may arise 

from the chilling effect of regulations that fall short of a direct prohibition against the exercise of First 

Amendment rights,” but found that the attorneys and organizations lacked legal standing to bring the lawsuit 

since they did could not show “specific present objective harm or a threat of specific future harm.” Clapper v. 

Amnesty International USA, 113 S. Ct. at 1151-53 (internal quotation marks and citations omitted).
134

upon First Amendment rights. For example, in a case challenging FBI electronic 

surveillance of an organization’s headquarters, one court noted that the fear of electronic 

surveillance could chill “free and robust exercise of the First Amendment rights of speech 

and association,”524 citing in particular the harmful impact of permitting the government to 

review the names and addresses of the many individuals who called the organization.525

Similarly, another appeals court found that individuals were entitled to challenge a 

surveillance program of the City of Albuquerque Police Department where the individuals 

alleged that they were the targets of police surveillance, that the city maintained files on 

their activities, and that this caused a chilling effect on their First Amendment rights.526

Furthermore, Congress has recognized that collection of information under Section 

215 can implicate the free exercise of speech and associational activities. In reauthorizing

Section 215 in 2006, Congress added safeguards for government applications seeking 

records that directly implicate particular constitutional protections; specifically, Congress 

required that applications for 215 orders seeking such records be signed by high level 

officials and provided that this authority may not be delegated to lower level personnel.527

That requirement covers applications seeking records that are especially sensitive from the 

standpoint of the First Amendment right to free speech and association, such as library 

circulation records and patron lists and book sales records and customer lists. 528

By indefinitely collecting information about all Americans’ telephone calls, the NSA’s 

telephone records program clearly implicates the First Amendment freedoms of speech 

and association. The connections revealed by the extensive database of telephone records 

gathered under the program will necessarily include relationships established among 

 

524 Zweibon v. Mitchell, 516 F.2d 594, 633 (D.C. Cir. 1975) (holding warrant required for surveillance of 

organization even though conducted for foreign intelligence, and finding that “prior judicial review [of 

warrant process] can serve to safeguard both First and Fourth Amendment rights”). This case involved 

surveillance for foreign intelligence purposes and predates passage of the Foreign Intelligence Surveillance 

Act. However, its analysis of the First Amendment interests at stake is still relevant to our inquiry. 

525 Id. at 634-35.

526 Riggs v. City of Albuquerque, 916 F.2d 582 (10th Cir. 1990) (reversing district court’s dismissal for 

lack of standing in case challenging surveillance program as unconstitutional). The federal courts of appeals 

have also considered a variety of cases in which individuals alleged that government surveillance had chilled 

their First Amendment rights and the courts found a lack of standing to bring such claims. See, e.g., ACLU v. 

NSA, 493 F.3d 644 (6th Cir. 2007) (dismissing constitutional challenge to Terrorist Surveillance Program for 

lack of standing).

527 See 50 U.S.C § 1861(a)(3).

528 The amendment to Section 215 also provided special treatment for records of firearms sales that are 

sensitive under the Second Amendment. See 50 U.S.C § 1861(a)(3). In addition, Section 215 requires that if 

the government seeks to collect information about a U.S. person, the application for a 215 order may not be 

sought “solely upon the basis of activities protected by the first amendment to the Constitution.” 50 U.S.C. 

§ 1861(a)(1). While this latter requirement pertains to the evidence used to justify a Section 215 collection 

rather than the information obtained through an order, it nonetheless shows a recognition that collection of 

information about individuals can impact their freedom to engage in First Amendment activities.
135

individuals and groups for political, religious, and other expressive purposes. Compelled 

disclosure to the government of information revealing these associations can have a 

chilling effect on the exercise of First Amendment rights. 

Any First Amendment inquiry must next ask whether the chilling effect of the 

program is significant or only minimal, since this will determine the applicable legal 

standard for review. If the chilling effect is found to be minimal, then the program is not 

subject to stringent review. If, however, the burden is found to be significant, then the 

“exacting scrutiny” test applies, and the question becomes whether the government 

possesses “a sufficiently important interest and employs means closely drawn to avoid 

unnecessary abridgment of associational freedoms.”529 

As we explain in the next section of this Report, the NSA’s bulk collection of 

telephone records can be expected to exert a substantial chilling effect on the activities of 

journalists, protestors, whistleblowers, political activists, and ordinary individuals. This 

effect stems from the government’s collection of telephony metadata and the knowledge 

that the government has access to millions of individuals’ records — regardless of whether 

the individuals have any suspected connection to terrorist activity. More particularized 

methods of government access to data do not create the same broad impact, because 

individuals can expect that their records will not be collected unless they are connected to 

a specific criminal or terrorism investigation. We think the likely deterrence of these 

associational activities by the 215 bulk collection program rises to the level of a “significant 

interference” with the protected rights of political association, and thus the exacting 

scrutiny test should apply. 

Combatting terrorism is a compelling government interest that may justify 

intrusions on First Amendment rights.530 However, we find it doubtful that the NSA’s 

program satisfies the requirement that the program be drawn narrowly to minimize the 

intrusion on associational rights.531 As with the legislative investigation at issue in Gibson

 

529 Buckley, 424 U.S. at 25.

530 See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2730-31 (2010) (finding government’s 

compelling interest in counterterrorism overcame First Amendment speech and association interests of 

organization seeking to teach peaceful tactics to designated terrorist groups).

531 See Buckley, 424 U.S. at 25; Gibson, 372 U.S. at 557-58 (in First Amendment challenge to law 

enforcement investigation by state legislature seeking disclosure of NAACP’s membership list, emphasizing 

that the state should demonstrate a nexus between the illegal conduct it is investigating and the organization 

whose members it seeks to identify, finding this nexus lacking, and instructed that “groups which themselves 

are neither engaged in subversive or other illegal or improper activities nor demonstrated to have any 

substantial connections with such activities are to be protected in their rights of free and private 

association”).
136

discussed above, the NSA program gathers information about individuals who have no 

demonstrated connection to illegal activities.

However, as with the Fourth Amendment questions described above, we note that 

the right of association questions are likely to be assessed in litigation that is already 

proceeding in the courts. However, we can say clearly that the 215 program implicates 

First Amendment rights — rights that must be considered in any policy assessment of the 

program. In the next section of this Report, we explore from a policy perspective the nature 

and strength of the chilling effect created by the telephone records program. We examine, 

as a matter of policy, whether the national security benefits provided by the calling records 

program outweigh its implications for privacy and civil liberties. In that assessment we 

consider the program’s effectiveness and balance its value against its intrusions on privacy 

as well as on speech and association. 
137

Part 7:

POLICY ANALYSIS AND RECOMMENDATIONS REGARDING

THE NSA SECTION 215 PROGRAM

I. Introduction

Even where measures taken to protect the nation from terrorism comply with the 

law and the Constitution, the question remains: do they strike the proper balance between 

security and liberty, between the need to safeguard the nation and to uphold the freedoms 

that define it? The 9/11 Commission, which first recommended the creation of our Board, 

expressed a firm belief that striking the proper balance is attainable and essential. As the 

Commission said in its report:

We must find ways of reconciling security with liberty, since the success of 

one helps protect the other. The choice between security and liberty is a false 

choice, as nothing is more likely to endanger American’s liberties than the 

success of a terrorist attack at home. Our history has shown us that 

insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the 

values that we are struggling to defend.532

Consistent with the importance of reconciling security and liberty, the Board’s 

statutory role includes the duty to “analyze and review actions the executive branch takes 

to protect the Nation from terrorism, ensuring that the need for such actions is balanced 

with the need to protect privacy and civil liberties.”533

Below, we set forth the capabilities that the NSA’s bulk collection of telephone 

records offers in the government’s effort to safeguard the nation from terrorism. We then 

discuss the extent to which the program has contributed in a demonstrable way to that 

effort. Next, we explore the threats to privacy and civil liberties entailed by such a widescale assembly of communications records by the government. Finally, we provide our 

assessment of how the value of the NSA’s program weighs against its implications for 

privacy and civil liberties and our assessment of how security and liberty concerns can best 

be reconciled with respect to this program.

 

532 9/11 Commission Report at 395; see also 42 U.S.C. § 2000ee(b)(3) (quoting 9/11 Commission 

Report).

533 42 U.S.C. § 2000ee(c)(1).
138

II. The Terrorism Threat and the Challenges of Combating It

The threat of terrorism faced today by the United States is real. While the core group 

of Al Qaeda that planned the 9/11 attacks from Afghanistan largely has been decimated by 

military action, recent years have seen the rise of new al Qaeda affiliates in other nations 

plotting operations against the United States and Europe. President Obama described the 

emergence of these groups in a speech last May on the dangers currently posed by 

international terrorism: “From Yemen to Iraq, from Somalia to North Africa, the threat 

today is more diffuse, with Al Qaeda’s affiliates in the Arabian Peninsula — AQAP — the 

most active in plotting against our homeland.”534 Most of these affiliates presently are 

focused on executing attacks in their own regions, but such attacks can claim U.S. lives in 

addition to wreaking devastation on residents of the nations where they occur. Moreover, 

failed attacks against the United States, such as the attempted 2009 Christmas Day airplane 

bombing and the attempted 2010 Times Square bombing, serve as a reminder that foreign 

terrorist organizations continue to pose a danger to residents of this nation. 

Political upheavals in the Middle East, meanwhile, threaten to create opportunities 

for safe havens where new terrorist affiliates can plan attacks. At the same time, the United 

States has seen evidence that radicalized individuals inside this country with connections 

to foreign extremists can carry out horrifying acts of violence, as appears to have been the 

case with the shooting at Fort Hood in Texas and the bombing of the Boston Marathon.535

Thus, while al Qaeda’s core group has not carried out a successful attack on U.S. soil 

since 2001 and is less capable of doing so, and while the violence now being attempted by 

emergent terrorist affiliates has not yet approached the scope of the 9/11 attacks, the 

danger posed to the United States by international terrorism is by no means over.536

Communications are essential to the facilitation of a terrorist attack against the 

United States, but awareness of those same communications can permit the United States 

to discover and thwart the attack. A key challenge — and a key opportunity — facing those 

who are tasked with preventing terrorism is that would-be terrorists utilize the same 

communications networks as the rest of the world. Identifying the communications of 

individuals plotting terrorism within those networks, without intruding on the 

communications of law-abiding individuals, is a formidable task. This challenge is 

compounded by the fact that terrorists, aware that attempts are being made to uncover 

 

534 Remarks by the President at the National Defense University, Fort McNair, Washington, D.C. (May 23, 

2013), available at http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-nationaldefense-university.

535 See id.

536 See id.
139

their communications, may employ a range of measures to evade those efforts and keep 

their plans secret.

III. Capabilities Provided by the NSA’s Bulk Collection of Telephone Records

Because communication by telephone is useful, if not indispensable, in the 

coordination of terrorist efforts, would-be terrorists can be expected to employ this 

method of communication in planning and carrying out their violent attacks. Records of 

telephone calls therefore can serve as a trail helping counterterrorism investigators piece 

together the networks of terrorist groups and the patterns of their communications. 

Ultimately, such analysis can support the intelligence community’s efforts to identify and 

locate individuals planning terrorist attacks and to discover and disrupt those attacks 

before they come to fruition.

The NSA’s wholesale collection of the nation’s telephone records, under the 

authority granted by the FISA court pursuant to Section 215, is but one method of 

gathering and analyzing telephone records for counterterrorism purposes. As described 

below, this method offers certain logistical advantages that may not be available through 

other means of gathering calling records. The broad scale of this collection, however, even 

when combined with strict rules on the use of the records obtained, carries serious 

implications for privacy and civil liberties.

A. Alternative Means of Collecting Telephone Records

Apart from the NSA’s bulk collection program, the government has several means at 

its disposal to obtain telephone calling records for use in counterterrorism or criminal 

investigations.

Under the Electronic Communications Privacy Act (“ECPA”), which governs 

communications records, a governmental entity can use an administrative, grand jury or 

trial subpoena to require a telephone company to provide calling records to the 

government.537 The government can also use a judicial warrant or court order issued under 

ECPA or the Federal Rules of Criminal Procedure to compel disclosure of calling records,538

though it primarily relies on subpoenas.

When utilizing a grand jury subpoena, the government is entitled to whatever 

records it seeks unless there is “no reasonable possibility” that its request “will produce 

information relevant to the general subject of the grand jury’s investigation.”539 Under a 

 

537 See 18 U.S.C. § 2703(c)(2).

538 See 18 U.S.C. § 2703(c)(1)(B); FED. R. CRIM. P. 41.

539 United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991).
140

provision of ECPA dealing with counterterrorism and counterintelligence investigations, 

the government also can issue a national security letter (“NSL”) to a telephone company 

directing it to provide calling records to the government.540 These NSLs, which are a form 

of administrative subpoena, do not require permission from a court. To issue an NSL, a 

government official must certify in writing to the company that the records being sought 

are “relevant to an authorized investigation to protect against international terrorism or 

clandestine intelligence activities.”541

In order to obtain telephone records using either subpoenas or NSLs, the 

government must specify the phone numbers or other identifiers for which it is seeking 

records and it must reasonably believe that those records have some connection to a 

criminal or counterterrorism investigation. The government cannot use these authorities 

preemptively to collect records concerning numbers that it has no reason to believe are 

connected to such an investigation, with the intent of looking at them later when it 

develops some particularized suspicion.

Court orders, subpoenas, and NSLs can all entail a delay between the point at which 

the government becomes suspicious about a particular number and the point at which it 

obtains the calling records of that number. Even though judicial approval is not required 

when the government issues a subpoena or NSL, it takes some time for governmental 

personnel to assure themselves that the proper conditions for the use of the subpoena or 

NSL have been met, obtain the necessary supervisory approval, deliver the request to the 

telephone company, and receive the records back from the company. The government does 

have means available, however, to streamline this process and eliminate delays. It has been 

reported, for instance, that one telephone company has placed its employees in offices of 

the Drug Enforcement Agency with access to the company’s call records database, to 

disclose records pursuant to administrative subpoenas.542 Under a similar arrangement, 

from April 2003 through January 2008, employees of certain communications providers 

were located at the FBI’s Communications Assistance Unit, where they accessed call 

records databases in response to NSLs.543 The on-site providers’ employees would deliver 

 

540 See 18 U.S.C. § 2709(a), (b).

541 18 U.S.C. § 2709(b)(1). If the investigation is of a U.S. person, it cannot be conducted solely on the 

basis of activities protected by the First Amendment to the Constitution. Id.

542 See Scott Shane and Colin Moynihan, Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.’s, The New 

York Times (Sept. 1, 2013) (“The government pays AT&T to place its employees in drug-fighting units around 

the country. Those employees sit alongside Drug Enforcement Administration agents and local detectives and 

supply them with the phone data from as far back as 1987.”).

543 See A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal 

Requests for Telephone Records, Oversight Review Division, Office of the Inspector General, at 24 (January 

2010), available at http://www.justice.gov/oig/reports/FBI/index.htm.
141

records to the FBI in an electronic format compatible with FBI databases, using compact 

disks and email.544

Normally, obtaining records with a subpoena or NSL only provides the government 

with the telephone contacts of the original number about which information is sought. 

However, at least in the past, NSLs and grand jury subpoenas have requested of at least one 

telephone company, which had this capacity, a “community of interest” for specified 

telephone numbers — going beyond the direct contacts of the target number.545 It could 

therefore be possible for the government to seek contacts out to two hops in the contact 

chain through such alternate tools, although an individual request would only cover a 

single provider’s records.

When using court orders, subpoenas, or NSLs, the government is able to obtain only 

those records that the telephone company has retained on file. Data retention practices 

vary among providers. Telephone service providers currently are required by regulation to 

maintain records of the calls made by each telephone number only for eighteen months.546

Even during that limited period, some providers switch the format in which calling records 

are stored from digital formats — which enable quick searching and analysis — to less 

accessible formats such as back-up tapes. On the other hand, it has been reported that one 

provider’s database includes calls dating back twenty-six years.547

B. Logistical Advantages of Collecting Telephone Records in Bulk

Under Section 215, the NSA does not limit its collection of telephone records to 

those with a suspected terrorism connection. Instead, orders of the FISA court permit the 

agency to collect potentially all of the calling records generated by United States telephone 

companies on a daily basis. Those records are maintained for five years in the NSA’s 

databases. When the agency develops a “reasonable articulable suspicion” that a particular 

telephone number is associated with terrorism, the agency may view and analyze the 

complete calling records of that number, along with the complete calling records of all the 

numbers it has been in contact with, and the complete calling records of all the numbers 

that those numbers have been in contact with.548

 

544 Id. at 52.

545 Id. at 54-64. The IG stated that one company had particular capabilities to conduct community of 

interest searches, which it made available to the FBI under contract. 

546 See 47 C.F.R. § 42.6.

547 Scott Shane and Colin Moynihan, Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.’s, The New York 

Times (Sept. 1, 2013).

548 See Part 3 of this Report for a more detailed description of the NSA’s collection and analysis of 

telephone calling records.
142

This arrangement provides the government with three main logistical advantages: 

greater speed, greater historical depth, and greater breadth of records available for 

analysis.

1. Speed

Under the NSA’s bulk telephone records collection program, at the point when the 

agency learns that a particular telephone number may be associated with terrorism and 

worth investigating, the agency’s database already contains the calling records of numbers 

that have been in contact with the number to be investigated. The only significant delay 

comes from the time required for agency personnel to assure themselves that the 

“reasonable articulable suspicion” standard for that number has been met — and, with 

respect to a number believed to be used by a U.S. person, that the agency’s suspicions are 

not based solely on activity protected by the First Amendment. Once the necessary reviews 

have been conducted, the calling records associated with a telephone number — up to 

three “hops” away from that number — can be retrieved nearly instantaneously.

In contrast, obtaining the calling records of a particular number by subpoena or NSL 

might take days or longer. And this process would normally reveal only the direct contacts 

of the target number, although as noted, it could be possible to acquire contacts out to two 

hops. This alternative process would require separate subpoenas or NSLs to be directed to 

each provider; the NSA would then need to compile the results and check for connections 

among them. 

2. Historical Depth 

By collecting telephone records soon after they are created and storing them for five 

years, the NSA guarantees their continued availability during that period. Thus when the 

agency searches for the records of a telephone number of interest, it will have at its 

disposal calling records extending back five years. 

In contrast, if the NSA waited to collect the records of a particular number until it 

came under suspicion, much of the older calling history of that number may not be 

available. As noted, telephone companies are required to maintain the records of an 

individual telephone call for eighteen months only. Beyond that, retention periods vary 

widely. A company receiving a government request for the records of a particular number 

might be able to furnish only a year and a half of records.

The farther back a telephone number’s calling records stretch, the more telephone 

calls they will reveal. The NSA asserts that a greater historical depth of records therefore is 

more likely to show connections with numbers of interest. A larger historical repository of 

a suspect’s calling records also may permit the NSA to better understand the typical 
143

communications pattern of that suspect, alerting the agency to unusual or aberrational 

activity.

3. Breadth

Once the NSA develops reasonable suspicion about a particular telephone number, 

the agency is able to view and analyze all the telephone contacts made by that number (a 

first “hop”), all the contacts made by every number identified at the first tier (a second 

“hop”), and all the contacts made by every number identified at the second tier (a third 

“hop”). In contrast, obtaining telephone records through alternative means — absent the 

community of interest approach described above — would normally provide the agency 

with only the first tier: the immediate contacts of the original number. Although 

investigators could then pursue the full calling records of any of those contacts, based upon 

the information discernable at the first tier, automatic access to additional tiers provides 

insight that might not be gained any other way.

For instance, if target A is in contact with another number, B, that is unknown to the 

NSA, and if the timing, frequency, and pattern of their calls suggest nothing out of the 

ordinary, the agency might have no articulable reason to obtain the full calling records of B. 

Those records, however, might show that B is in contact with C, a number that is of high 

interest to the agency. Notwithstanding the agency’s lack of information about B, the calling 

records thus would have shown a “two hop” link between A and C. Such information could 

help analysts piece together a connection between suspects who were not previously 

known to be connected. The same information might also suggest that B is a number of 

potential interest to the agency — something that would not be fully apparent from the 

mere fact that B had been in contact with A. 

In another hypothetical example, the same calling records might show that target A 

frequently contacts numbers D, E, and F. Viewing the full calling records of those three 

numbers might reveal that E and F also frequently communicate with each other, and 

always around the same time that one of them has been in touch with A. Number D, on the 

other hand, might have no evident connection to any of A’s other contacts. This information 

might lead investigators to prioritize E and F in their inquiry, while deemphasizing D. The 

relationship between E and F would not have been apparent by looking only at A’s first-tier 

contacts, and as a result investigators might not have explored those two numbers further.

Thus, immediate access to a second tier of contacts offers the promise of fleshing out 

networks of linked individuals in a way that working step-by-step, one tier of contacts at a 

time, may not. The difference is not merely that additional time is saved because the agency 

does not have to make a new request for each number. Rather, as a matter of practical 

reality, that new number might never be pursued at all. Simply put, the pressures of limited 

time and resources may deter investigators from further examining some important first-
144

tier contacts whose significance becomes apparent only when a second tier of calling 

records is automatically available. Losing that automatic access may translate into losing 

some degree of analytic insight.

IV. Demonstrated Efficacy of the NSA’s Bulk Collection of Telephone Records

Clearly, the NSA’s bulk acquisition of telephone records provides the government 

with certain capabilities that would otherwise be lacking in the endeavor to combat 

terrorism. But the question remains whether those capabilities have demonstrably 

enhanced the government’s efforts to safeguard the nation. Answering this question 

requires examining the instances in which telephone records obtained by the NSA under 

Section 215 of the Patriot Act were used in counterterrorism investigations. That 

examination in turn must seek to ascertain whether similar results could have been 

achieved using telephone records obtained through other means.

Any attempt to assess the value of the NSA’s telephone records program must be 

cognizant of a few considerations. First, the information that the NSA obtains through 

Section 215 is not utilized in a vacuum. Rather, it is combined with information obtained 

under different legal authorities, including the Signals Intelligence that the NSA captures 

under Executive Order 12333, traditional wiretaps and other electronic surveillance of 

suspects conducted under FISA court authority, the interception of telephone calls and 

emails authorized by the FISA Amendments Act of 2008, the collection of communications 

metadata through FISA’s pen register and trap and trace provision, physical surveillance, 

and the development of informants. The intelligence community views the NSA’s Section 

215 program as complementing and working in tandem with these and other intelligence 

sources, enabling analysts to paint a more comprehensive a picture when examining 

potential national security threats.

Moreover, what the Section 215 program yields is the identification of telephone 

numbers of potential interest, or the revelation of connections between telephone numbers 

of interest, which must be passed on to the FBI or other agencies as leads for further 

investigation. Any assessment of the program’s value, and any expectations about what it 

can be expected to accomplish, must bear this consideration in mind.

Finally, an intelligence-gathering tool like the NSA’s Section 215 program can 

provide value that materially enhances the safety of the nation even if it never provides the 

single critical piece of insight enabling the government to thwart an imminent terrorist 

attack. Because the work of intelligence gathering and analysis is cumulative, it is rare that 

any particular technique or legal authority can be identified as the key component without 

which a terrorist plot would have succeeded. Intelligence-gathering tools can provide value 
145

in more indirect ways, by helping to advance investigations and focus efforts in ways that 

are sometimes more difficult to measure.

That being said, in the Board’s view, an intelligence-gathering tool with significant 

ramifications for privacy and civil liberties cannot be regarded as justified merely because 

it provides some value in protecting the nation from terrorism. Particularly when an 

intelligence program reaches as broadly as the NSA’s bulk collection of telephone records 

— potentially touching the lives of nearly every American, and in the process investing 

considerable power in the hands of the government to monitor the communication 

patterns of its citizens — we believe it is necessary to measure the value provided by the 

program by considering whether comparable results could be achieved through less 

intrusive means and whether any unique value offered by the program outweighs its 

implications for privacy and civil liberties.

In our effort to carry out this balancing task with respect to the NSA’s Section 215 

program, we have examined a wealth of classified materials regarding the operation of the 

program. As we have reviewed such materials, the intelligence community has provided us 

with follow-up information responding to specific questions or concerns we have posed to 

them. We have taken public testimony from government officials and have received a series 

of classified briefings with a range of personnel from the NSA and other elements of the 

intelligence community. We have spoken with representatives of private companies who 

have received and complied with court orders under the NSA’s surveillance program. We 

have heard from academics, technology experts, civil liberties advocates, and former 

government officials through written submissions provided to us and through commentary 

at public workshops that we have conducted.

In particular, we have closely scrutinized the specific cases cited by the government 

as instances in which telephone records obtained under Section 215 were useful in 

counterterrorism investigations. In the wake of the unauthorized disclosures during the 

summer of 2013, the intelligence community compiled a list of fifty-four counterterrorism 

events in which Section 215 or Section 702 of the FISA Amendments Act of 2008 

“contributed to a success story.” Twelve of those incidents involved the use of Section 215. 

We have examined those incidents in depth, attempting to discern precisely what was 

accomplished in each case through the use of Section 215 records and whether similar 

results could have been achieved using more tailored means of gathering telephone 

records.

Our deliberations have led us to conceptualize seven broad ways in which an 

intelligence-gathering tool such as the NSA’s bulk telephone records program can provide 

value in safeguarding the nation from terrorism. We explain these seven categories of 

success below and discuss how often the NSA’s Section 215 program has achieved each of 

them.
146

Our analysis suggests that where the telephone records collected by the NSA under 

its Section 215 program have provided value, they have done so primarily in two ways. The 

first is by offering additional leads regarding the contacts of terrorism suspects already 

known to investigators, which can help investigators confirm suspicions about the target of 

an inquiry or about persons in contact with that target. But our review suggests that the 

Section 215 program offers little unique value here, instead largely duplicating the FBI’s 

own information-gathering efforts. The second is by demonstrating that known foreign 

terrorism suspects do not have U.S. contacts or that known terrorist plots do not have a U.S. 

nexus. This can help the intelligence community focus its limited investigatory resources by 

avoiding false leads and channeling efforts where they are needed most. But the value of 

this benefit must be kept in perspective, as discussed below.

Based on the information provided to the Board, we have not identified a single 

instance involving a threat to the United States in which the telephone records program 

made a concrete difference in the outcome of a counterterrorism investigation. Moreover, 

we are aware of no instance in which the program directly contributed to the discovery of a 

previously unknown terrorist plot or the disruption of a terrorist attack. And we believe 

that in only one instance over the past seven years has the program arguably contributed 

to the identification of an unknown terrorism suspect. In that case, moreover, the suspect 

was not involved in planning a terrorist attack and there is reason to believe that the FBI 

may have discovered him without the contribution of the NSA’s program.

Even in those instances where telephone records collected under Section 215 

offered additional information about the contacts of a known terrorism suspect, in nearly 

all cases the benefits provided have been minimal — generally limited to corroborating 

information that was obtained independently by the FBI. And in those few cases where 

some information not already known to the government was generated through the use of 

Section 215 records, we have seen little indication that the same result could not have been 

obtained through traditional, targeted collection of telephone records. The classified 

briefings and materials the Board has received have not demonstrated that the increased 

speed, breadth, and historical depth of the Section 215 program have produced any 

concrete results that were otherwise unattainable. In other words, we see little evidence 

that the unique capabilities provided by the NSA’s bulk collection of telephone records 

actually have yielded material counterterrorism results that could not have been achieved 

without the NSA’s Section 215 program.

As noted, the Board has examined closely the twelve cases compiled by the 

intelligence community in which telephone records collected under Section 215 

“contributed to a success story” in a counterterrorism investigation. We have assigned each 

of these cases to one or more of seven “categories of success” that we have devised to 

illustrate the different forms of value that a counterterrorism program like this one could 
147

provide. We do not ascribe any talismanic significance or scientific precision to these 

broad, non–mutually exclusive categories. But we believe they help illustrate what the 

Section 215 program has and has not accomplished to date. These seven categories, and 

our analysis of how the government’s twelve examples fit within them, are as follows: 

1. Enabling “Negative Reporting.” Analysis of telephone calling records can 

establish that a known terrorism suspect overseas has not been in telephone 

contact with anyone in the United States, suggesting that a known terrorist 

or terrorist plot in a foreign country does not have a U.S. nexus. Such 

information can help the government focus its limited investigative 

resources where they are needed most. We found five instances in which 

Section 215 records were used in this way.

2. Adding or Confirming Details. Analysis of telephone calling records can 

also help focus investigative efforts by providing additional information 

about terrorism suspects or plots already known to the government. The 

information obtained might confirm suspicions about a suspect, enable 

greater understanding about that suspect’s connections, or establish links 

between known suspects. We found seven instances in which Section 215 

telephone records served this function. The value provided by the records, 

however, was limited. In nearly every case, the information supplied by the 

NSA through Section 215 offered no unique value, but simply mirrored or 

corroborated information that the FBI obtained independently using other 

means. And in none of these cases did the rapid speed with which Section 

215 records can be analyzed lead to any tangible benefits. In sum, we believe 

that the limited value provided by the Section 215 program in these cases 

could have been achieved without the NSA’s bulk collection of telephone 

records.

3. “Triaging.” In time-sensitive scenarios, where investigators have reason 

to believe that a terrorist attack may be imminent, or where they are 

otherwise conducting a fast-breaking investigation, prompt analysis of a 

suspect’s telephone records may help the government prioritize leads based 

on their urgency. While this category is not fundamentally different from the 

previous one, as it also involves adding more information about plots or 

suspects already known to the government, its special value may lie in the 

potentially critical production of swift results. We identified four instances in 

which telephone numbers derived from the Section 215 program were 

disseminated quickly to the FBI in this type of scenario. In none of these 

cases, however, did the information contribute to the disruption of a terrorist 

attack.
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4. Identifying Terrorism Suspects. Analysis of telephone records can 

contribute to the discovery of terrorism suspects previously unknown to the 

government. We found only one instance in which Section 215 telephone 

records arguably served this purpose and helped to identify a previously 

unknown suspect. In that case, however, the suspect was not involved in 

planning a terrorist attack — rather, he had sent money to support a foreign 

terrorist organization — and there is reason to believe that the FBI may have 

discovered him without the information it received from the NSA.

5. Discovering U.S. Presence of Known Terrorism Suspects. The use of 

Section 215 records theoretically could help alert the government that a 

known terrorism suspect has entered the United States from abroad. We are 

not aware of any instances in which this has occurred.

6. Identifying Terrorist Plots. The Board is not aware of any instances in 

which the use of Section 215 telephone records directly contributed to the 

discovery of a terrorist plot.

7. Disrupting Terrorist Plots. The Board is not aware of any instances in 

which the use of Section 215 telephone records directly contributed to the 

disruption of a terrorist plot.

To help illustrate the concrete benefits provided by the NSA’s Section 215 program, 

we elaborate below on four counterterrorism investigations that members of the 

intelligence community have cited as demonstrating successful use of the program. These 

cases, which are among the twelve “success stories” referenced above, have been discussed 

by government officials in public statements, legal filings, and congressional testimony.549

We believe that scrutiny of these examples demonstrates the limited value provided by the 

NSA’s Section 215 program.

 

549 Although the Board has benefitted from classified information obtained directly from members of the 

Intelligence Community, some information about these four cases has been made available to the public. See, 

e.g., Declaration of Acting Assistant Director Robert J. Holley, Federal Bureau of Investigation, ¶¶ 24-26, ACLU 

v. Clapper, No. 13-3994 (S.D.N.Y. Oct. 1, 2013); Hearing of the Senate Appropriations Committee on 

Cybersecurity: Preparing for and Responding to the Enduring Threat, 113th Cong. (June 12, 2013); Hearing of 

the House Permanent Select Committee on Intelligence on How Disclosed NSA Programs Protect Americans, 

and Why Disclosure Aids Our Adversaries, 113th Cong. (June 18, 2013); Hearing of the House Judiciary 

Committee on Oversight of the Administration’s Use of the Foreign Intelligence Surveillance Act (FISA) 

Authorities, 113th Cong. (July 17, 2013); Hearing of the Senate Judiciary Committee on Strengthening Privacy 

Rights and National Security: Oversight of FISA (Foreign Intelligence Surveillance Act) Surveillance Programs, 

113th Cong. (July 31, 2013). Transcripts of much of this congressional hearing testimony are available at 

http://icontherecord.tumblr.com/.
149

A. New York City Subway Attack Plot

Since the disclosure of the NSA’s Section 215 and Section 702 programs, one of the 

most frequently discussed cases in which these programs were utilized has been the 

thwarted 2009 plot to bomb the New York City subway. Section 215, however, played no 

role in disrupting this attack. It made a minor contribution by providing corroborating 

information about one of the plot’s already known coconspirators, who was arrested 

months after the plot was disrupted. There is no reason to believe that bulk collection of 

telephone records was necessary for this minor contribution.

On September 6 and 7, 2009, the NSA intercepted emails sent from an unknown 

individual in the United States to an Al Qaeda courier in Pakistan whom it was monitoring. 

These emails sought advice on the correct mixture of ingredients to use for certain 

explosives, and the urgency of their tone suggested an imminent attack. The NSA passed 

this information on to the FBI, which used a national security letter to identify the 

unknown individual as Najibullah Zazi, located near Denver, Colorado. Beginning on 

September 7, the FBI set up 24-hour surveillance of Zazi’s residence, began monitoring his 

Internet activity, and undertook other investigative efforts.

On September 8, Zazi conducted Internet searches suggesting that he was looking 

for home improvement stores in Queens, New York, where he could purchase acid that can 

be used in explosives. That same day, he rented a car. The next day, Zazi began driving from 

Colorado to New York City, arriving on September 10. His plan, he later said, was to meet 

up with associates, obtain and assemble the remaining components to build explosives, and 

detonate them on subway lines in Manhattan.

The FBI followed Zazi as he drove from Colorado to New York. By this time, over 

100 agents from the Bureau’s Denver field office were working on the investigation, and 

the Bureau’s New York field office also became involved, along with local New York City 

law enforcement — by one account “every terrorism squad in New York City.”550

After arriving in New York, Zazi learned that law enforcement was monitoring him. 

His suspicions may have been triggered when he was pulled over by police on September 

10 as he crossed the George Washington Bridge, for what he was told was a random drug 

search. After consenting to an inspection of his vehicle, he was allowed to proceed. Any 

suspicions Zazi might have had were confirmed when an associate of his tipped him off 

about the government’s investigation. About the time of Zazi’s arrival in New York, law 

enforcement agents working on the investigation interviewed Ahmad Wais Afzali, an imam 

whom the government allegedly had used in the past as an informant. These agents showed 

 

550 Transcript of Jury Trial, United States v. Mohammed Wali Zazi, Crim. No. 10-0060 (E.D.N.Y. July 18, 

2011) (Testimony of Eric Jurgenson, Special Agent, Federal Bureau of Investigations, Denver Field Office, 

National Security Squad 3).
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Afzali photos of Zazi and asked questions about him. Thereafter, Afzali spoke by phone with 

Zazi and related to him what the authorities had asked about him. 

Having been alerted about the government’s investigation, Zazi purchased an airline 

ticket and returned to Colorado on September 12. He later stated that he and his associates 

abandoned their plans after learning that the government was monitoring him.

On September 14, two days after Zazi returned to Colorado, government agents 

searched three apartments in a Queens neighborhood. The agents found components that 

could be used to make bombs, along with evidence tying these materials to Zazi. The FBI 

first interviewed him on September 16 at the Bureau’s Denver field office, where he 

appeared voluntarily with counsel, and he was arrested on September 19. Initially denying 

any involvement in terrorism, he later admitted his guilt and cooperated with investigators. 

Several other individuals were arrested in connection with the plot as well.

While Section 215 was used during the Zazi investigation, it played no role in 

thwarting the subway bombing plot. The plot was discovered through email monitoring, 

and its details were fleshed out through additional electronic surveillance, physical 

surveillance, and other traditional investigative measures. The plot was disrupted when 

law enforcement inadvertently tipped off Zazi that he was being monitored, leading him 

and his associates to abandon their plans and prompting him to return to Colorado. 

Although the NSA provided the FBI with a report early in the investigation showing calls 

made from Zazi’s telephone, and later provided additional leads based on the Section 215 

data, these reports did not identify Zazi’s associates in New York City or the apartments 

where materials intended to support the bombing were found. Rather, other investigative 

techniques led to those discoveries.

The only concrete result obtained in the Zazi case through the use of Section 215 

was to identify an unknown telephone number of one of Zazi’s New York coconspirators, 

Adis Medunjanin. The FBI, however, already was aware of Medunjanin and his connection 

to Zazi’s plot, having obtained that information independently using other means. And 

while the NSA’s information may have further heightened the FBI’s interest in Medunjanin, 

there is no indication that use of the NSA’s bulk collection program was necessary for the 

government to identify the unknown telephone number, or that this information was not 

obtainable through more traditional law enforcement techniques. Despite being under 

suspicion from the outset of the plot’s discovery in September 2009, Medunjanin was not 

arrested until January 2010, several months after Zazi returned to Colorado and was taken 

into custody. As far as we can tell, the particular speed associated with Section 215 queries 

offered no apparent benefit in corroborating the FBI’s interest in Medunjanin. Nor did the 

ability to search through five years of records or to have immediate access to several 

“hops” of telephone calls.
151

The Zazi case shows how Section 215 is used to complement other investigative 

tools, as intelligence community officials have emphasized. In our view, it also illustrates 

the minimal added benefit provided by the program in light of those other tools.

B. Operation Wi-Fi

Our analysis of another 2009 case, which involved an early stage plot to attack the 

New York Stock Exchange, also fails to demonstrate that the Section 215 program has 

offered significant added value to the government’s counterterrorism efforts.

While conducting Internet surveillance of an extremist based in Yemen, the NSA 

discovered a connection between that extremist and an unknown person in Kansas City, 

Missouri. The NSA provided information about this connection to the FBI. In the course of 

its investigation, the FBI subsequently identified the unknown person as an individual 

named Khalid Ouazzani, and it discovered that he was in communication with other 

individuals located in the United States who were in the very initial stages of devising a 

plan to bomb the New York Stock Exchange. All of these individuals eventually were 

convicted for their roles in the nascent plot.

After the FBI discovered the plot and identified the individuals involved, the NSA 

queried telephone numbers associated with those individuals using Section 215, providing 

additional telephone numbers as leads to the FBI. Those numbers simply mirrored 

information about telephone connections that the FBI developed independently using 

other authorities.

Thus, while Section 215 was used in the Operation Wi-Fi investigation, we are aware 

of no indication that bulk collection of telephone records was necessary to the 

investigation, or that the information produced by Section 215 provided any unique value.

C. David Coleman Headley Investigation

In October 2009, Chicago resident David Coleman Headley was arrested and 

charged for his role in plotting to attack the Danish newspaper that published 

inflammatory cartoons of the Prophet Mohammed. He was later charged with helping 

orchestrate the 2008 Mumbai hotel attack, in collaboration with the Pakistan-based 

militant group Lashkar-e-Taiba. He pled guilty and began cooperating with authorities.

Headley, who had previously served as an informant for the Drug Enforcement 

Agency, was identified by law enforcement as involved in terrorism through means that did 

not involve Section 215. Further investigation, also not involving Section 215, provided 

insight into the activities of his overseas associates. In addition, Section 215 records were 

queried by the NSA, which passed on telephone numbers to the FBI as leads. Those 

numbers, however, only corroborated data about telephone calls that the FBI obtained 

independently through other authorities. 
152

Thus, we are aware of no indication that bulk collection of telephone records 

through Section 215 made any significant contribution to the David Coleman Headley 

investigation.

D. Basaaly Moalin Investigation

The investigation of Basaaly Moalin is the only case in which Section 215 records 

demonstrably contributed to the identification of an unknown terrorism suspect. 

In 2007, the NSA provided the FBI with information showing an indirect connection 

between a telephone number in Somalia, which the NSA was tracking because of its 

association with the Al Shabaab terrorist organization, and an unknown telephone number 

in San Diego. The NSA reported this information to the FBI, which realized that the 

telephone number was linked to pending FBI investigations. Based on the NSA’s report and 

the link between this telephone number and pending investigations, the FBI opened a 

preliminary investigation into the number.

Using a national security letter and database checks, the FBI identified the user of 

the San Diego telephone number as Basaaly Moalin, the subject of a previous FBI 

investigation that was closed several years earlier for lack of sufficient information. The FBI 

reopened the case, and through subsequent investigation it learned that Moalin and three 

others were providing material support to Al Shabaab. All four men were convicted in 2013 

of providing funds to the terrorist organization.

The NSA’s report was the catalyst that prompted the FBI to investigate Moalin’s San 

Diego number. Even without the NSA’s tip-off, however, FBI agents may well have 

discovered that the number was a common link among pending FBI investigations. 

Moreover, given that the NSA’s tip came from monitoring a specific foreign number it was 

tracking, it is not clear to us that bulk collection of telephone records was necessary to 

discovering the connection between this number and Moalin’s. Conventional techniques 

may have been less likely to discover it, or at least more time-consuming. But we know of 

no indication that speed or Section 215’s five-year depth of records were important to the 

discovery.

In addition, we believe it worthy of note that Moalin and his associates were not 

charged or convicted of involvement in planning or executing any specific terrorist plots. 

Their crime was sending money to Al Shabaab. While there is a critical value in cutting off 

funds to deadly foreign terrorist organizations such as this one, we find it significant that in 

the seven-year history of the NSA’s Section 215 program, this material-support prosecution 

remains the only time that the program has directly contributed to the identification of an 

unknown terrorism suspect. And even in this instance, as noted, Moalin was not entirely 

unknown to law enforcement, but rather was the subject of a previous FBI investigation 

and was the user of a telephone number already linked to pending FBI investigations. 
153

In our view, therefore, it is telling that the Moalin case represents perhaps the strongest 

success story produced by the NSA’s Section 215 program. Like the other three cases 

discussed above, the Moalin investigation shows that the program does provide some 

demonstrable value in supporting the government’s counterterrorism efforts. But it also 

starkly illustrates the limits of what the program has accomplished, and perhaps what it is 

capable of accomplishing.

E. Remaining Success Stories

Three of the remaining cases included among the government’s twelve “success 

stories” are similar to the narratives described above. In these three cases, the NSA queried 

Section 215 telephone records and passed information on to the FBI to be used as leads in 

its investigations. But in all three cases, that information simply mirrored or corroborated 

intelligence that the FBI obtained independently through other means. In none of these 

cases has the Board identified any unique value supplied to the FBI by the Section 215 

program. Nor can the Board point to any concrete way in which the program altered the 

outcome of these investigations.

The last five success stories provided by the government are all examples of 

“negative reporting,” as described above — situations in which the Section 215 data helped 

investigators eliminate the possibility of a U.S. connection to a foreign terrorist plot. While 

the value of such “peace of mind” is not to be discounted, especially in time-sensitive 

scenarios where it may permit investigators to better focus their attention on the true 

threats, it also must be kept in perspective. Particularly in light of the policy considerations 

discussed below, we question whether the government’s routine collection of all 

Americans’ telephone records is justified on the basis that it can be helpful to identify 

situations where there is no threat to the United States.

F. 9/11

Some have suggested that if the NSA’s calling records program were in place before 

9/11, it could have alerted the government that one of the future airplane hijackers was in 

the United States, and perhaps have led to the prevention of the attacks. For several years, 

beginning in the late 1990s, the NSA intercepted telephone calls to and from a prominent Al 

Qaeda safe house in Yemen. A number of calls were made in early 2000 between this safe 

house and a person named Khalid, who after 9/11 was identified as hijacker Khalid 

al-Mihdhar. Although the NSA was able to listen to these conversations, it did not have the 

telephone number that was calling the safe house, and thus it did not know that Mihdhar 

made the calls from San Diego, California. Had the NSA known this information, it is argued, 

the government could have identified Mihdhar as the caller and been aware of his presence 
154

in the United States, perhaps leading to his apprehension and the identification and 

detention of other hijackers.551

For two reasons, we do not believe the Mihdhar example supports continuance of 

the NSA’s Section 215 program. First, the failure to identify Mihdhar’s presence in the 

United States stemmed primarily from a lack of information sharing among federal 

agencies, not of a lack of surveillance capabilities. As documented by the 9/11 Commission 

and others, this was a failure to connect the dots, not a failure to collect enough dots. 

Second, in order to have identified the San Diego telephone number from which Mihdhar 

made his calls, it was not necessary to collect the entire nation’s calling records.

As explained by the 9/11 Commission Report, the joint inquiry into the 9/11 attacks 

by the House and Senate intelligence committees, and a Department of Justice Inspector 

General report, the government had ample opportunity before 9/11 to pinpoint Mihdhar’s 

location, track his activities, and prevent his 2001 reentry into the United States. By early 

2000, the CIA was aware of Mihdhar and knew that he had a visa enabling him to travel to 

the United States. Yet despite having information that Mihdhar and fellow hijacker Nawaf 

al-Hazmi “were traveling to the United States,” the CIA “missed repeated opportunities to 

act based on the information in its possession.” The agency did not advise the FBI of what it 

knew or “add their names to watchlists.”552 Furthermore, at the time that Mihdhar and 

Hazmi were in San Diego in early 2000, when the calls to Yemen were made, they were 

living with “a long-time FBI asset.”553 Mihdhar left the United States in June 2000, and he 

was able to return in 2001 because he still had not been placed on any watchlists. And “[o]n 

four occasions in 2001, the CIA, the FBI, or both had apparent opportunities to refocus on 

 

551 The executive branch has highlighted the Mihdhar case in its applications to the FISA court seeking 

authorization for the NSA’s program, in litigation defending the program in other courts, and in briefing 

papers provided to the congressional intelligence committees urging the extension of Section 215’s sunset 

date. Officials have also discussed the case in congressional testimony. See, e.g., Testimony of General Keith 

Alexander, Commander, U.S. Cyber Command, Director of the National Security Agency and Chief of the 

Central Security Service, Hearing of the Senate Appropriations Committee on Cybersecurity: Preparing for 

and Responding to the Enduring Threat, 113th Cong. (June 12, 2013); Testimony of the Honorable Robert S. 

Mueller, III, Director, Federal Bureau of Investigation, Hearing before the Committee on the Judiciary, House 

of Representatives: Oversight of the Federal Bureau of Investigation, 113th Cong. (June 13, 2013); Testimony 

of Sean Joyce, Deputy Director, Federal Bureau of Investigation, Hearing of the House Permanent Select 

Committee on Intelligence on How Disclosed NSA Programs Protect Americans, and Why Disclosure Aids Our 

Adversaries, 113th Cong. (June 18, 2013). 

552 Report of the U.S. Senate Select Committee on Intelligence and U.S. House Permanent Select 

Committee on Intelligence: Joint Inquiry into Intelligence Community Activities Before and After the Terrorist 

Attacks of September 11, 2001, S. Rep. No. 107-351, H.R. Rep. No. 107-792, at 12-16 (Dec. 2002).

553 Office of the Inspector General, Department of Justice, A Review of the FBI’s Handling of Intelligence 

Information Prior to the September 11 Attacks, Chapter 5 (Nov. 2004), available at

http://www.justice.gov/oig/special/0506/chapter5.htm.
155

the significance of Hazmi and Mihdhar and reinvigorate the search for them.”554 Yet these 

opportunities were missed.555

It is argued, however, the NSA’s bulk telephone records program could have made 

up for these intelligence lapses and failures of information sharing. Knowledge that the 

telephone calls from “Khalid” to the Yemen safe house were made from San Diego 

theoretically could have led the government to discover Mihdhar’s presence in the United 

States. But obtaining this knowledge did not require a bulk telephone records program. The 

NSA knew the telephone number of the Yemen safe house. If the telephone calls with 

Mihdhar were deemed suspicious at the time, the government could have used existing 

legal authorities to request from U.S. telephone companies the records of any calls made to 

or from that Yemen number. Doing so could have identified the San Diego number on the 

other end of the calls.556 Thus we do not believe that a program that collects all telephone 

records from U.S. telephone companies was necessary to identify Mihdhar’s location in 

early 2000, nor that such a program is necessary to make similar discoveries in the future. 

Finally, in the absence of evidence that the NSA’s Section 215 program has made any 

significant contribution to counterterrorism efforts to date, some officials have suggested 

to us that the program should be preserved because it might do so in the future. Like a 

burglar alarm or a fire insurance policy, under this reasoning, the program is valuable even 

if it has not yet been triggered by a break-in or a fire. Yet, it is worth noting that the 

program supplied no advance notice of attempted attacks on the New York City subway, 

the failed Christmas Day airliner bombing, or the failed Times Square car bombing. Given 

the limited value this program has demonstrated to date, as outlined above, we find little 

reason to expect that it is likely to provide significant value, much less essential value, in 

safeguarding the nation in the future.

V. Privacy and Civil Liberties Implications of the NSA’s Bulk Collection of 

Telephone Records

Having described what we believe to be the value of the NSA’s telephone records 

program in combating terrorism, we now turn to the implications of that program for 

privacy and civil liberties. We believe those implications are serious. The design of the 

NSA’s program shows that the government recognizes the privacy concerns raised by the 

 

554 THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE 

UNITED STATES, at 266 (2004).

555 See 9/11 Commission Report at 266-72.

556 The government could have sought this information through any of the alternative means of seeking 

telephone records described earlier, although the speed with which telephone companies could respond to 

such requests would likely vary by provider.
156

collection and analysis of telephone calling records. The government has responded to 

those concerns by imposing rules that limit the NSA’s use of telephone records after their 

collection by the agency. These rules offer many valuable safeguards designed to curb the 

intrusiveness of the program. But in our view, they cannot fully ameliorate the implications 

for privacy, speech, and association that follow from the government’s ongoing collection of 

virtually all telephone records of every American. 

Because telephone calling records can reveal intimate details about a person’s life, 

particularly when aggregated with other information and subjected to sophisticated 

computer analysis, the government’s collection of a person’s entire telephone calling 

history has a significant and detrimental effect on that person’s privacy. Beyond such 

individual privacy intrusions, permitting the government to routinely collect the calling 

records of the entire nation fundamentally shifts the balance of power between the state 

and its citizens. Moreover, as outlined below, this practice can be expected to have a 

chilling effect on the free exercise of speech and association, because law-abiding 

individuals and groups engaged in sensitive or controversial work cannot trust in the 

confidentiality of their relationships as revealed by their calling patterns. Finally, for the 

reasons explained below, we do not believe that these concerns are eliminated by the 

detailed rules placed on the NSA’s use of telephone calling records after their collection.557

A. The Revealing Nature of Telephone Calling Records

Telephone calling records, which indicate who called whom, at what time, and for 

how long, but do not include the contents of any conversations, are a form of “metadata.”558

Like the address on the outside of an envelope, which announces the envelope’s destination 

but does not reveal the content of the letter inside, telephone calling records provide 

information about the existence and details of a call without revealing what was said. 

 

557 In assessing the privacy intrusions associated with the NSA’s bulk collection of telephone records, the 

widely recognized Fair Information Practice Principles (“FIPPs”) help inform our analysis. The FIPPs offer 

guidance for privacy safeguards that have formed the basis for the Privacy Act of 1974 and many federal 

agencies’ approaches to privacy protection. See Federal Trade Commission, Fair Information Practice 

Principles, available at http://www.ftc.gov/reports/privacy3/fairinfo.shtm. The Department of Homeland 

Security describes the FIPPs as a set of eight principles: Transparency, Individual Participation, Purpose 

Specification, Data Minimization, Use Limitation, Data Quality and Integrity, Security, and Accountability and 

Auditing. Department of Homeland Security, Privacy Policy Guidance Memorandum, No. 2008-01, at 1 (Dec. 

29, 2008), available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_policyguide_2008-01.pdf 

(memorializing DHS adoption of the FIPPs).

558 Telephony metadata might also include cell site location information, but the NSA does not presently 

obtain location information as part of its collection efforts under Section 215. The technological 

infrastructure through which the NSA receives calling records from the telephone companies supports the 

collection of cell site location information but the information is filtered out. As recently as 2010 and 2011, 

the government has confirmed, the NSA conducted a pilot project to test the collection of cell site information 

about mobile telephones. See Charlie Savage, In Test Project, N.S.A. Tracked Cellphone Locations, N.Y. TIMES

(Oct. 2, 2013). The information that is collected by the NSA under Section 215 does include telephone area 

codes, prefixes, and other data that allows the agency to locate callers geographically in a very broad sense.
157

But while telephone calling records are distinct from the spoken content of any 

conversation, they can be highly revealing nonetheless. As Justice Stewart noted over thirty 

years ago, the telephone numbers that a person dials “easily could reveal the identities of 

the persons and the places called, and thus reveal the most intimate details of a person’s 

life.”559 Because the circumstances of a particular call can be highly suggestive of its 

content, the mere record of a call potentially offers a window into the caller’s private 

affairs. Some illustrative examples cited by a privacy advocacy organization include the 

following: calling a suicide prevention hotline; calling a telephone sex service at 2:30 a.m.; 

calling an HIV testing service, then one’s doctor, then one’s health insurance company 

within the same hour; receiving a call from the local NRA office during a campaign against 

gun legislation, then calling one’s congressional representatives immediately afterward; 

and calling one’s gynecologist, speaking for half an hour, then calling the local Planned 

Parenthood number later that day.560

At bottom, telephone metadata is information about a person’s conduct. Just as it 

reveals something about a person to know that he or she visited the doctor’s office, 

likewise it reveals something about that person to know that he or she called the doctor’s 

office on the telephone. When the government collects metadata about its citizens, 

therefore, it is collecting information about its citizens’ activity.

Moreover, when the government collects all of a person’s telephone records, storing 

them for five years in a government database that is subject to high-speed digital searching 

and analysis, the privacy implications go far beyond what can be revealed by the metadata 

of a single telephone call. The frequency with which two numbers are in contact with each 

other, along with the timing and duration of their calls, provides insight into the nature of 

the relationship between the two callers. When both of those numbers are in contact with a 

third number, the pattern of calls among these three numbers adds to the story that can be 

gleaned from their communications records. Thus, aggregation of numerous calling records 

over an extended period of time can paint a clear picture of an individual’s personal 

relationships and patterns of behavior. This picture can be at least as revealing of those 

relationships and habits as the contents of individual conversations — if not more so.561

 

559 Smith, 442 U.S. at 748 (Stewart, J., dissenting).

560 Kurt Opsahl, Why Metadata Matters, EFF.ORG (June 7, 2013), available at

https://www.eff.org/deeplinks/2013/06/why-metadata-matters.

561 All four expert technologists who testified at the Board’s July 2013 public workshop agreed on this 

point. See Privacy and Civil Liberties Oversight Board, Transcript of Workshop Regarding Surveillance 

Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the Foreign 

Intelligence Surveillance Act, at 140-41 (July 9, 2013) (statement of Ashkan Soltani, Independent Researcher 

and Consultant) (“The metadata is actually more sensitive at times than the content.”); id. at 184-85 

(statement of Daniel Weitzner, MIT Computer Science and Artificial Intelligence Lab (“Metadata at scale is at 

least as revealing as content.”); id. at 189-90 (statement of Steven Bellovin, Columbia University Computer 

Science Department); id. at 137 (statement of Marc Rotenberg, Electronic Privacy Information Center), 
158

The power of such communications metadata to illustrate a person’s social connections 

with stark accuracy has been illustrated vividly by technology researchers.562

Based on our consideration of this issue, the Board is convinced that telephone 

calling records, when collected in bulk and subjected to powerful analytic tools, can reveal 

highly sensitive personal information. The government acknowledges as much, arguing 

that “sophisticated analytic tools” can reveal “chains of communication” and “connections 

between individuals.”563 As one former general counsel of the NSA recently was quoted as 

saying: “Metadata absolutely tells you everything about somebody’s life. . . . [It’s] sort of 

embarrassing how predictable we are as human beings. . . . If you have enough metadata 

you don’t really need content.”564

There is a paradox here. We have concluded, based on the evidence provided by the 

government, that the NSA’s Section 215 program has not proven useful in identifying 

unknown terrorists or terrorist plots, in part because the program often merely 

corroborates information about connections among individuals that have already been 

obtained independently through other means. Yet we also conclude that telephone calling 

records, if used in more expansive ways than the government currently employs them, can 

reveal a great deal about an innocent person’s habits, private affairs, and network of social, 

familial, and professional connections. This capability is magnified when calling records are 

aggregated across customers and carriers and over a long period of time. The very power 

that inheres in the analysis of telephone calling records — a power that the government 

has emphasized in defending the intelligence value of the NSA’s Section 215 program —

illustrates the depth of the privacy implications entailed by the program without proving 

its effectiveness as a counterterrorism tool.565

 

available at http://www.pclob.gov/. See also Steven Bellovin, Submission to the Privacy and Civil Liberties 

Oversight Board: Technical Issues Raised by the Section 215 and Section 702 Programs, at 2-4 (July 31, 2013) 

(“Metadata is often far more revealing than content”).

562 For instance, researchers at the Massachusetts Institute of Technology have developed a program 

called “Immersion” that can generate a telling visual rendering of an individual’s web of social connections 

simply through the use of email metadata — the record of who sent email messages to whom. See Immersion: 

A People-Centric View of Your Email Life, available at https://immersion.media.mit.edu/. See also Abraham 

Riesman, What Your Metadata Says About You, BOSTON GLOBE (June 29, 2013).

563 Administration White Paper, Bulk Collection of Telephony Metadata under Section 215 of the USA 

PATRIOT Act, at 13-14 (Aug. 9, 2013).

564 Alan Rusbridger, The Snowden Leaks and the Public, N.Y. REVIEW OF BOOKS (Nov. 21, 2013) (quoting 

former NSA general counsel Stewart Baker).

565 While the apparent lack of a case in which the 215 program actually detected terrorist activity may 

be a paradox in light of the revealing nature of call detail records, it should not be a surprise. In 2008, the 

National Research Council of the Academies of Science published a report in which a committee comprised of 

some of the nation’s leading experts on computer science, data mining, behavioral science, terrorism and law 

concluded, after two years of study, the same thing we find here: "Modern data collection and analysis 

techniques have had remarkable success in solving information-related problems in the commercial sector; 
159

B. Privacy Implications of Bulk Collection of Telephone Calling Records

Given the ability of telephone calling records to reveal intimate details of a person’s 

life, significant privacy interests are at stake when the government collects all of a person’s 

calling records, particularly when it retains this information for years in a database that 

enables swift mapping of one’s pattern of communications and network of contacts.

At the most basic level, routine government collection of telephone records defeats 

the core concept of information privacy — the ability of individuals to control information 

about themselves. This loss of control is heightened when it is the government collecting

personal records. With its powers of compulsion and criminal prosecution, the government 

poses unique threats to privacy when it collects data on its own citizens.566 Allowing it to 

gather vast quantities of information about the conduct of individuals as a routine matter 

where those individuals are not suspected of any crimes affects the balance of power 

between the state and its people.

567

Collection and analysis of information on the scale of the NSA’s Section 215 program 

also heightens the risk of the types of mistakes that often accompany the implementation of 

large information systems. Indeed, privacy violations, including the inadvertent collection 

of unauthorized personal data, improper use of the data collected, or dissemination of that 

data to persons or entities not approved to receive it, may be inevitable.568 As discussed in 

detail in Part 4 above, since the NSA began collecting telephone and Internet metadata 

 

for example, they have been successfully applied to detect consumer fraud. But such highly automated tools 

and techniques cannot be easily applied to the much more difficult problem of detecting and preempting a 

terrorist attack, and success in doing so may not be possible at all." National Research Council, Protecting 

Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment, at 2 (National 

Academies Press, 2008) (emphasis added). See also Constitution Project, Principles for Government Data 

Mining: Preserving Civil Liberties in the Information Age at 10 (2010) (examining data mining programs and 

finding the value of programs to identify potential terrorists “is unclear due to the particular difficulties of 

developing a predictive model to identify plans for terrorist acts.”). These studies only focus on the power to 

detect terrorist activity and do not address other potential benefits from the 215 program discussed above.

566 See, e.g., Jim Harper, Understanding Privacy — and the Real Threats to It (Cato Policy Analysis No. 520)

(Aug. 4, 2004).

567 See Neil Richards, The Dangers of Surveillance, 126 Harvard Law Review 1934, 1952-53 (2013) (“the 

gathering of information affects the power dynamic between the watcher and the watched, giving the watcher 

greater power to influence or direct the subject of surveillance.”).

568 As Professor Steven Bellovin explained: “It is a truism in the computer security business that data 

that does not exist cannot be compromised. This includes both organizational misuse and misuse by 

individuals. Conversely, databases that do exist can be and are misused. . . . I am by no means suggesting that 

intelligence agencies should not collect or store information. That said, any form of collection does pose 

additional risks to personal privacy and security; an evaluation of the desirability of creating new databases 

of this type should take potential misuse into account as well. Put bluntly, it will happen; technical and 

personnel precautions will at best limit the extent.” Steven Bellovin, Submission to the Privacy and Civil 

Liberties Oversight Board: Technical Issues Raised by the Section 215 and Section 702 Programs, at 8 (July 

31, 2013) (emphasis in original).
160

under the supervision of the FISA court, there have been repeated instances of precisely 

these sorts of violations.569

Government collection of personal information on such a massive scale also courts 

the ever-present danger of “mission creep.” At the moment, telephone records obtained by 

the NSA under Section 215 may exclusively be used in furtherance of clearly defined 

counterterrorism efforts, and only in the manner prescribed by the FISA court’s orders. 

Once collected, however, information is always at risk of being appropriated for new 

purposes. Thus, when the government assembles a database containing the calling 

histories of millions of individuals, proposals to make this information available for other 

important governmental functions may be inevitable.570 Already, it has been reported in 

the press, officials from numerous federal agencies have exerted pressure on the NSA to 

share its data and surveillance tools for investigations into “drug trafficking, cyberattacks, 

money laundering, counterfeiting and even copyright infringement.”571

An even more compelling danger is that personal information collected by the 

government will be misused to harass, blackmail, or intimidate, or to single out for scrutiny 

individuals or groups adhering to minority religions or holding unpopular views. To be 

clear, the Board has seen no evidence suggesting that anything of the sort is occurring at 

the NSA. But while the danger of such abuse may seem remote, it is more than merely 

theoretical. The government’s rampant misuse of its surveillance authority during the 

twentieth century to squelch domestic dissent in the name of national security was amply 

documented by the reports of the Church Committee, and was in fact the impetus for 

passage of the Foreign Intelligence Surveillance Act. In recent months, allegations have 

emerged at the national and local level involving the targeting of particular groups based 

on their ideology or religion — whether it be the Internal Revenue Service’s reported 

singling out of Tea Party–affiliated organizations or the New York Police Department’s 

alleged secret labeling of entire mosques as terrorist organizations. Prudence cautions 

 

569 See pages 46 to 56 of this Report for a discussion of compliance issues in the NSA’s bulk telephone 

records program.

570 See Privacy and Civil Liberties Oversight Board, Transcript of Workshop Regarding Surveillance 

Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the Foreign 

Intelligence Surveillance Act, at 127 (July 9, 2013) (Bellovin statement) (“One of the things that’s the biggest 

problem in privacy is not the primary uses of data collected for a legitimate reason but the secondary uses 

that are often found later on for some particular database.”); id. at 137-38 (Rotenberg statement) (“Once you 

have information collected and stored in a database, you will not surprisingly find new uses for it. In fact, it 

would be surprising if you didn’t find new uses”). See also Ashkan Soltani, Watching the Watchers: Increased 

Transparency and Accountability for NSA Surveillance Programs, Submission to the PCLOB, at 9-10 (July 9, 

2013).

571 Eric Lichtblau & Michael S. Schmidt, Other Agencies Clamor for Data N.S.A. Compiles, N.Y. TIMES (Aug. 

3, 2013). According to this report, the NSA generally has fended off these requests, but not without reportedly 

generating complaints from other agencies that its stance has “undermined their own investigations into 

security matters.” Id. 
161

against assuming that abuse of surveillance powers is a problem that will never reoccur, 

and any decision to invest the government with a broad surveillance power must duly take 

into account the abuse that this power could enable, whether or not such abuse is evident 

today. Regardless of the good faith with which it may be wielded today, the immense power 

afforded the government by routine collection of all telephone records enables significant 

abuse and intrusion into Americans’ privacy.

C. Chilling of Free Speech and Association

The NSA’s bulk collection of telephone records also directly implicates freedom of 

speech and association. The readiness with which individuals engage in certain political 

and social activities understandably may be chilled by knowledge that the government 

collects a record of virtually every telephone call made by every American. Inability to 

expect privacy vis-à-vis the government in one’s telephone communications means that 

people engaged in wholly lawful activities — but who for various reasons justifiably do not 

wish the government to know about their communications — must either forgo such 

activities, reduce their frequency, or take costly measures to hide them from government 

surveillance. Among the important freedoms that may be threatened by this chilling effect 

are the rights to participate in political activism, communicate with and benefit from the 

press, and promote novel or unpopular ideas. 

“Awareness that the Government may be watching chills associational and 

expressive freedoms,” as Justice Sonia Sotomayor noted in a 2012 concurring opinion.572

Her predecessors on the Supreme Court observed decades ago that national security cases 

“often reflect a convergence of First and Fourth Amendment values not present in cases of 

‘ordinary’ crime” and that “[h]istory abundantly documents the tendency of Government —

however benevolent and benign its motives — to view with suspicion those who most 

fervently dispute its policies.”573 Years earlier, the Court recognized the “vital relationship 

between freedom to associate and privacy in one’s associations,” explaining: “Inviolability 

of privacy in group association may in many circumstances be indispensable to 

preservation of freedom of association, particularly where a group espouses dissident 

beliefs.”574 More recently, in discussing NSA surveillance, President Obama has 

acknowledged that privacy in communications is part of “our First Amendment rights and 

expectations in this country.”575

 

572 United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring).

573 United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 313 (1972).

574 Nat’l Ass’n for Advancement of Colored People v. State of Ala. ex rel. Patterson, 357 U.S. 449, 462 

(1958).

575 Josh Gernstein, Obama plans new limits on NSA surveillance, POLITICO.COM (Dec. 5, 2013).
162

Following public disclosure of the NSA’s bulk telephone records program, numerous 

advocacy organizations from across the political spectrum have joined legal challenges to 

the program, asserting that it hinders their ability to communicate confidentially with 

members, donors, legislators, whistleblowers, members of the public, and others.576

For instance, the NRA has asserted in a legal filing that, as an organization advancing 

often-controversial political stances, it “has jealously guarded information about its 

members and supporters” who have expressed concern about “repercussions either at 

work or in their community” if their NRA membership were disclosed.577 The organization 

likens the government’s bulk telephone records program to a compelled disclosure of its 

membership list, because the program supplies the government with the calling records of 

“everyone who might communicate with the NRA or its affiliates by phone.”578 In a different 

lawsuit, organizations ranging from environmentalists to gun-rights activists to religious 

and political advocacy groups have filed affidavits declaring that they have been chilled in 

their ability to associate with their supporters.579 For example, Greenpeace has declared 

that it “cannot reassure those who contact Greenpeace” or “those we actively seek out for 

collaboration that their communications with Greenpeace will be confidential” —

frustrating the organization’s advocacy mission, which depends on “free and open 

communication with colleagues, members, experts, and leaders of government and 

industry,” as well as the ability to receive confidential tips about threats to the 

organization’s protest activities.580

Knowledge that the government continuously gathers a comprehensive record of 

the nation’s telephone calls may also deter whistleblowers from calling attention to 

corporate or government wrongdoing, for fear of reprisals if their identities become 

known.581 More broadly, these considerations may constrain the work of anyone who seeks 

 

576 See Complaint ¶¶ 3, 24-27, ACLU v. Clapper, No. 13-3994 (S.D.N.Y. June 11, 2013); Complaint ¶¶ 2, 

17-39, First Unitarian Church of Los Angeles v. NSA, No. 13-3287 (N.D. Cal. Oct. 30, 2013).

577 Brief of Amicus Curiae, National Rifle Association of America, Inc., in Support of Plaintiff, at 7, ACLU v. 

Clapper, No. 13-3994 (S.D.N.Y. Sept. 4, 2013).

578 Id.

579 In the lawsuit, First Unitarian Church of Los Angeles v. NSA, No. 13-3287 (N.D. Cal.), twenty-two

organizations have filed affidavits making such assertions.

580 Declaration of Deepa Padmanabha for Greenpeace, Inc., in Support of Plaintiffs’ Motion for Partial 

Summary Judgment, ¶¶ 11, 14-15, First Unitarian Church of Los Angeles v. NSA, No. 13-3287 (N.D. Cal. Oct. 30, 

2013).

581 In support of a legal challenges to the NSA’s calling records program, the Patient Privacy Rights 

Foundation, which seeks to “protect citizens’ rights to health information privacy,” claims that “phone calls 

are essential for discussion of sensitive matters concerning hidden use, disclosure, and sale of the nation’s 

personal health information.” Declaration of Deborah C. Peel, MD, for Patient Privacy Rights Foundation, 

¶¶ 3-6, 9, First Unitarian Church of Los Angeles v. NSA, No. 13-3287 (N.D. Cal. Oct. 29, 2013). The organization 

reports in its declaration that following public disclosure of the NSA’s program it experienced a significant 
163

to communicate with activists, dissidents, and others involved in sensitive work as part of 

his or her research and writing. Stunting the unimpeded exchange of ideas on which such 

writers thrive carries implications for freedom of information as well as freedom of 

expression. As argued in a legal filing by the PEN American Center, a nonprofit association 

of writers, “[t]he prospect that telephone metadata can reveal the entire web of a writer’s 

associations and interactions — and the contacts of all the writer’s contacts, and their 

contacts — will inevitably limit and deter valuable interactions.”

Writers in the United States who support human rights or who communicate 

with human rights activists, for instance, are acutely aware of the dangers 

that comprehensive telephone metadata may create. The government’s 

records of calling activity may permit reprisals or sanctions to be visited on 

writers, or on people with whom they speak, or on those people’s families 

and friends, here and in other countries where they may be more 

vulnerable.582

Awareness that complete connection data on all telephone communications is 

stored in a government database may have debilitating consequences for journalism as 

well. Sources in a position to offer crucial information about newsworthy topics may 

remain silent out of fear that their telephone records could be used to trace their contacts 

with journalists — or they may be deterred by the onerous measures required to avoid 

leaving such a record. 

Reporters and news organizations recently have warned about the danger of “selfcensorship from sources and harm to the public discourse.”583 Pointing out that many 

significant pieces of American journalism have relied heavily on confidential sources, the 

Reporters Committee for Freedom of the Press, joined by thirteen other news 

organizations, has asserted: “When the risk of prosecution reaches such sources, quality 

reporting is diminished. Since the public has become aware of the call tracking, many 

reporters at major news outlets have said that this program and other NSA surveillance 

efforts have made sources less willing to talk with them, even about matters not related to 

national security.”584

 

decrease in telephone calls from whistleblowers and others who would have reason to communicate

anonymously. Id.

582 Brief of Amicus Curiae PEN American Center in Support of Plaintiffs’ Motion for a Preliminary 

Injunction and in Opposition to Defendants’ Motion to Dismiss, at 20, ACLU v. Clapper, No. 13-3994 (S.D.N.Y. 

Sept. 4, 2013).

583 Brief Amici Curiae of Reporters Committee for Freedom of the Press and 13 Other News 

Organizations in Support Plaintiffs’ Motion for Partial Summary Judgment, at 3, First Unitarian Church of Los 

Angeles v. NSA, No. 13-3287 (N.D. Cal. Nov. 18, 2013).

584 Brief Amici Curiae of Reporters Committee for Freedom of the Press and 13 Other News 

Organizations in Support Plaintiffs’ Motion for Partial Summary Judgment, at 1-2, First Unitarian Church of 
164

These accounts describe changes in behavior on the part of journalists, sources, 

whistleblowers, activists, dissidents, and others upon learning that the government 

maintains a comprehensive and daily updated repository of call detail records on their 

telephone calls. The Board believes that such a shift in behavior is entirely predictable and 

rational. Although we cannot quantify the full extent of the chilling effect, we believe that 

these results — among them greater hindrances to political activism and a less robust 

press — are real and will be detrimental to the nation.

All of these accounts cited above refer to a chilling effect created by the collection of 

telephone calling records. The journalists, members of political organizations, and ordinary 

Americans discussed above assert that they are inhibited in their associations by the 

knowledge that the government is compiling a comprehensive record of phone calls that 

are then available for government review and analysis. While the government urges that 

the odds of any particular telephone record being reviewed by analysts is very small —

noting that the NSA only queried the database for fewer than 300 “selectors” in 2012 — the 

government acknowledges that the number of individuals whose phone records are 

returned through this query process is substantially larger than 300 per year.585 Under the 

automated system approved by the FISC, the results of all queries may be compiled in the 

“corporate store” database. As explained elsewhere in this Report, the compiled records 

that may be aggregated in the corporate store could contain the complete calling records of 

1.5 million telephone numbers — which could encompass records of telephone calls made 

between these numbers and over 100 million other numbers.586 Once contained in the 

corporate store, analysts may further examine these records without the need for any new 

reasonable articulable suspicion determination. With such vast numbers of telephone 

records readily subject to review, it would not be speculative for these individuals to fear 

that their own records may be culled from the NSA’s collection repository and subject to 

review by government analysts.

 

Los Angeles v. NSA, No. 13-3287 (N.D. Cal. Nov. 18, 2013). In addition, a report by the Committee to Protect 

Journalists spearheaded by the former Executive Editor of the Washington Post examined the combined 

impact of the Section 215 and 702 programs on journalism. It quoted one journalist as noting that “I worry 

now about calling somebody because the contact can be found out through a check of phone records or 

e-mails. . . . It leaves a digital trail that makes it easier for the government to monitor those contacts. ” Leonard 

Downie Jr. & Sara Rafsky, Committee to Protect Journalists, The Obama Administration and the Press: Leak 

Investigations and Surveillance in Post-9/11 America (Oct. 10, 2013), http://cpj.org/reports/2013/10/obamaand-the-press-us-leaks-surveillance-post-911.php.

585 Declaration of Teresa H. Shea, Signals Intelligence Director, National Security Agency, ¶ 24, ACLU v. 

Clapper, No. 13-3994 (S.D.N.Y. Oct. 1, 2013). While fewer than 300 identifiers were used to query the NSA’s 

call detail records in 2012, that number “has varied over the years.” Id. ¶ 24.

586 See pages 29 to 31 of this Report.
165

D. Significance of Rules Limiting the NSA’s Use of Telephone Records

In the government’s view, concerns about the privacy and civil liberties implications 

of the NSA’s bulk acquisition of calling records should be allayed by the detailed rules that 

limit the agency’s use of those records after collection. We disagree.

To begin with, the current rules governing the NSA’s Section 215 program permit 

analysts to view the complete calling records of individuals who have no suspected 

connections to terrorist activity. In defense of the program, the government emphasizes 

that NSA analysts may access telephone records collected under Section 215 only through a 

“query” that begins with a telephone number reasonably suspected of being associated

with terrorism. As described earlier in this Report, when designated agency personnel 

develop “reasonable articulable suspicion” or “RAS” that a number is “associated” with 

terrorism, they are permitted to enter that number (the “seed”) into the NSA’s database of 

Section 215 records and identify all numbers (say, seventy-five) that have been in contact 

with the seed over the course of five years (the “first hop”). Most if not all of the individuals 

behind those seventy-five numbers will have no connection with terrorism. Yet the 

program rules allow the system to search those seventy-five numbers against the full 

database with no RAS determination (the “second hop”) and acquire all of the numbers 

(say, seventy-five) that have been in touch with each of the first seventy-five numbers over 

the course of five years (amounting now to 5,625 numbers). Again, the vast majority of the 

individuals behind those 5,625 numbers would have no connection with terrorism and 

quite likely none would, yet the rules allow all 5,625 to be searched against the database 

(the “third hop”) with no RAS determination, yielding possibly over 400,000 phone 

numbers of individuals called or receiving calls from the 5,625. 

Moreover, under the new technical system that has received FISA court approval,587

the results of those queries (the full calling records of over 5,000 numbers generated by a 

three hop analysis of one seed) are placed into a central repository termed the “corporate 

store.”588 The NSA has estimated that in the year 2012 approximately 300 numbers were 

approved as reasonably suspicious and used as seeds to query its database. If that figure 

holds true, then during the course of one year the corporate store could acquire the 

complete calling records of 1.5 million telephone persons (5,625 times 300, since the third 

hop produces full calling records on the 5,625 numbers yielded by the second hop) —

which could encompass records of telephone calls made between these numbers and over 

100 million other numbers (1.5 million persons, each calling or receiving a call from 

seventy-five other numbers). The rules of the FISA court for the 215 program impose no 

 

587 See Primary Order at 11 & n.11, In re Application of the Federal Bureau of Investigation for an Order 

Requiring the Production of Tangible Things, No. BR 13-158 (FISA Ct. Oct. 11, 2013).

588 See id.
166

limits on how long data can be held in the corporate store, in contrast to the five-year 

retention limit on collection store data.

Furthermore, under the rules approved by the FISA court, NSA personnel may then 

search any phone number, including the phone number of a U.S. person, against the 

corporate store — as long as the agency has a valid foreign intelligence purpose in doing so 

— without regard to whether there is “reasonable articulable suspicion” about that 

number.589 Unlike with respect to the initial RAS query, the FISA court’s orders specifically 

exempt the NSA from maintaining an audit trail when analysts access records in the 

corporate store.590 The Board does not believe that this system adequately protects 

individual privacy, particularly as to those who are not reasonably suspected of any 

involvement in terrorism.

Not only do we find the existing rules inadequate in light of the depth and breadth of 

the data collected by the government, but we also must note again the difficulties that the 

NSA has had in following those rules, as described earlier in this Report. The complexity of 

a system like the NSA’s Section 215 program may unavoidably entail inadvertent violations 

of the rules that govern the handling of individuals’ calling records. From the beginning of 

the Section 215 program, the government assured the FISA court that software measures 

would prevent analysts from viewing calling records of telephone numbers that had not 

been approved for searching. Yet those assurances turned out to be wrong, leading the FISA 

court to conclude in 2009 that, from the inception of the program, “the NSA’s data 

accessing technologies and practices were never adequately designed to comply with the 

governing minimization procedures.”591 Since then, a range of inadvertent violations 

resulting from the complexity of the program and the NSA’s technological systems has 

continued up to the present day. And beyond the government’s self-reported compliance 

failures (the reporting of which is laudable), the FISA court has acknowledged that it has 

little independent means of verifying whether the NSA’s program is being implemented 

according to the court’s orders and in a manner that protects privacy interests.592

Finally, we note the risk that rules could be changed. The government could, in the 

future, be permitted to use the NSA’s Section 215 records for purposes other than the 

narrow counterterrorism efforts for which they are authorized now. It might be permitted 

to store the records for longer than five years, or to disseminate them more broadly among 

federal agencies and personnel than current standards permit. The “reasonable articulable 

suspicion” standard could be loosened or eliminated. 

 

589 See Primary Order at 11 & n.11, In re Application of the Federal Bureau of Investigation for an Order 

Requiring the Production of Tangible Things, No. BR 13-158 (FISA Ct. Oct. 11, 2013).

590 See id. at 7 n.6. All records in the corporate store will be the results of RAS-approved queries.

591 Order at 14-15, In re Production of Tangible Things, No. BR 08-13 (FISA Ct. Mar. 2, 2009).

592 See, e.g., id. at 12.
167

The rules could also be impacted by changes in technology. That is in evidence right 

now, as the NSA moves to an updated system of handling its Section 215 records that 

involves a new system of automated queries (described above) that places substantial 

information outside the database controlled by the court-imposed rules. Technology 

upgrades also present opportunities for mistakes and miscommunication regarding the 

manner in which individuals’ calling records are being treated, a problem that has occurred 

in the past with the Section 215 data. 

In sum, even under the rules that are in place today, the permissibility of three-hop 

querying makes a huge number of telephone records pertaining to innocent Americans 

subject to viewing by intelligence analysts. Moreover, under the new automated query 

process approved by the FISA court, all of those records may be retained indefinitely and 

analyzed through a variety of means without auditing. Even if the data were subject to 

stricter rules, the record casts doubt on whether those outside the government could 

reasonably be assured that those rules were being complied with. Thus, even if such 

stricter rules, consistently followed, were adequate to prevent invasions of privacy, they

could not fully ameliorate the legitimate concerns raised by the government’s possession of 

such a comprehensive dataset. Under the Section 215 program, individuals and groups who 

desire privacy in their activities and associations must contend with a novel and troubling 

dynamic: all of their calling records must be presumed to be in the hands of the 

government, under circumstances that give them no ability to know whether the 

government is scrutinizing their records or disseminating them to other agencies. That 

scenario threatens to impose a unique chilling effect on speech and association.

VI. Conclusion

The 9/11 Commission, noting that the Patriot Act “vested substantial new powers in 

the investigative agencies of the government” and acknowledging “concerns regarding the 

shifting balance of power to the government,” made the following recommendation: “The 

burden of proof for retaining a particular governmental power should be on the executive, 

to explain,” among other things, “that the power actually materially enhances security.”593

Based on our study of the NSA’s bulk telephone records program, which has included 

access to classified material and numerous briefings with intelligence officials, we do not 

believe the government has demonstrated that the program materially enhances security 

to a degree that justifies its effects on privacy, free speech, and free association.

If the program’s implications for privacy and civil liberties were minor, then the 

showing made by the government might perhaps warrant retention of the program on the 

 

593 9/11 Commission Report at 394-95.
168

chance that it may offer critical counterterrorism insights in the future, even if it has not yet 

done so. As we have explained above, however, in our view the daily governmental 

collection of the telephone calling records of nearly every American has deep privacy 

ramifications, fundamentally alters the relationship between citizens and the state, and 

threatens to substantially chill the speech and associational freedoms that are essential to 

our democracy. Any governmental program that entails such costs requires a strong 

showing of efficacy. We do not believe the NSA’s telephone records program conducted 

under Section 215 meets that standard.

VII. Recommendations for Section 215 Program

Recommendation 1. The government should end its Section 215 bulk telephone 

records program.

 

The Section 215 bulk telephone records program is not sustainable from a legal or 

policy perspective. As outlined in this Report, the program lacks a viable legal foundation 

under Section 215, implicates constitutional concerns under the First and Fourth 

Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has 

shown only limited value. For these reasons, the government should end the program. 

As intelligence community officials have emphasized, the Section 215 program is 

but one tool used in the government’s counterterrorism efforts. Without the program, the 

government would still be able to seek telephone calling records directly from 

communications providers for records held in their own databases, through national 

security letters or, in investigations of potential criminal conduct, with grand jury 

subpoenas, court orders or warrants.594 And the government would still be able to use pen 

registers and trap and trace devices under FISA and, in criminal investigations, under Title 

18 for the prospective collection of new calling records as they are generated. The Board 

believes that the Section 215 program has contributed only minimal value in combating 

terrorism beyond what the government already achieves through these and other 

alternative means. Cessation of the program would eliminate the privacy and civil liberties 

concerns associated with bulk collection without unduly hampering the government’s 

efforts, while ensuring that any governmental requests for telephone calling records are 

tailored to the needs of specific investigations.

 

594 We recognize that the use of national security letters, which are issued without judicial approval, 

present its own privacy and civil liberties concerns and has been the subject of extensive debate. In this 

study, we did not examine the government’s use of NSLs. We merely recognize here that they remain a tool 

available to the government for the acquisition of telephone calling records on a particularized basis.
169

The Board does not recommend that the government impose data retention 

requirements on communications providers in order to facilitate any system of seeking 

records directly from private databases. The Board also does not recommend creating a 

third party to hold the data; such an approach would pose difficult questions of liability, 

accountability, oversight, mission creep, and data security, among others.

Once the Section 215 bulk collection program has ended, the government should 

purge the database of telephone records that have been collected and stored during the 

program’s operation, subject to limits on purging data that may arise under the federal 

records laws or as a result of any pending litigation. This should include purging both the 

“collection store,” which contains all records obtained under the program over the past five 

years, and the “corporate store,” which contains the results of all automated contact 

chaining queries. NSA and other agencies could retain copies of data already disseminated 

in reports.

The Board also recommends against the enactment of legislation that would merely 

codify the existing program or any other program that collected bulk data on such a 

massive scale regarding individuals with no suspected ties to terrorism or criminal activity. 

While new legislation could provide clear statutory authorization for a program that 

currently lacks a sound statutory footing, any new bulk collection program would still pose 

grave threats to privacy and civil liberties. If the government and Congress seek to develop 

a new program to replace the Section 215 program, any such new program should be 

crafted far more narrowly, and the government should demonstrate that its effectiveness 

will clearly outweigh any intrusions on privacy and civil liberties interests.595 

Moreover, the Board’s constitutional analysis above should provide a message of 

caution to policymakers. As Fourth Amendment doctrine continues to evolve in order to 

address powerful new electronic surveillance technologies, the Supreme Court may be on 

the cusp of modifying the third-party doctrine on which the Section 215 program rests. 

Freedoms under the First Amendment, such as free speech, religion, and association, are 

clearly implicated by bulk collection of information on telephone communications. It is not 

necessary to find constitutional violations in order to urge — as a policy matter — that 

Congress should exercise restraint to respect the important individual interests involved. 

Given the significant privacy and civil liberties interests at stake, Congress should seek the 

least intrusive alternative and should not legislate to the outer bounds of its authority.

 

595 In theory the government could seek authorization from Congress for a new and significantly more 

targeted program, limited, for example, to telephone numbers that are more likely to be associated with 

potential terrorists, if such a program could be developed. The government might seek the private sector’s 

assistance in developing a methodology for targeting this narrower, more relevant pool of information.
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The Board recognizes that immediate shutdown of the 215 program could be 

disruptive, and the government may need a short period of time to explore and 

institutionalize alternative approaches, and believes it would be appropriate for the 

government to wind down the 215 program over a short interim period. If the government 

does find the need for a short wind-down period, the Board urges that it should follow the 

procedures under Recommendation 2 below.

Recommendation 2. The government should immediately implement additional 

privacy safeguards in operating the Section 215 bulk collection program.

The Board recommends that the government immediately implement several 

additional privacy safeguards to mitigate the privacy impact of the present Section 215 

program. The recommended changes can be implemented without any need for 

congressional or FISC authorization. Specifically, the government should: 

(a) reduce the retention period for the bulk telephone records program from five 

years to three years; 

(b) reduce the number of “hops” used in contact chaining from three to two; 

(c) submit the NSA’s “reasonable articulable suspicion” determinations to the FISC 

for review after they have been approved by NSA and used to query the database; 

and

(d) require a “reasonable articulable suspicion” determination before analysts may 

submit queries to, or otherwise analyze, the “corporate store,” which contains the 

results of contact chaining queries to the full “collection store.”

At present, the NSA retains all collected call detail records for five years, but this 

retention period can and should be limited to three years. Over time, people change their 

telephone numbers as well as their patterns of contacts and communications. Government 

officials have already said that reducing the retention period from five years to three would 

preserve the greatest value that the program offers.596 

Similarly, changing program rules to limit contact chaining to two hops — that is, 

permitting each query to return only records of calls from the selector number out to the 

telephone numbers it calls, and from those “first hop” telephone numbers out to the 

numbers they have called — would not unduly diminish the value of the telephony 

 

596 Privacy and Civil Liberties Oversight Board, Transcript of Public Hearing, Consideration of 

Recommendations for Change: The Surveillance Programs Operated Pursuant to Section 215 of the USA 

PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act, at 118 (Nov. 4, 2013) (testimony of 

Rajesh De, General Counsel, NSA) (“[T]hree years probably would be where the knee of the curve is in terms 

of the greatest value”), available at http://www.pclob.gov/.
171

metadata program. No third hops (the telephone numbers called by the second hop 

numbers) should be permitted based on a single RAS determination. If the government 

wishes to search for connections from identifiers it obtained at the second hop, it should be 

required to obtain a new RAS approval for each such telephone number. Each additional 

hop from the original “selector” makes the connection more remote and adds exponentially 

greater numbers of “false positives” to the query results. The value of connections becomes 

more limited as the contact chain is extended and it becomes more difficult to sift through 

the results. 

The third immediate change that the Board recommends is that the NSA should 

submit its RAS determinations to the FISC for review after queries have been run. NSA 

officials would still make the RAS determinations under existing minimization rules and 

this would provide sufficient authorization to run a query. The NSA would submit these 

RAS determinations to the FISC periodically over the coming months or as part of the next 

renewal application for the program. Submission of RAS determinations would allow the 

FISC to assess whether the RAS standard has properly been met as part of the evaluation of 

whether to renew the program and potentially modify its terms and protections. 

The Board notes that review of RAS determinations will increase the workload of 

the FISC, and urges Congress to take into account the growing responsibilities of the FISC 

overall as it considers the judiciary’s budget, but the Board does not believe that the 

burden will be excessive. The government has stated that in 2012 there were fewer than 

300 RAS-approved selectors over the course of the entire year, so the number of RAS 

determinations submitted to the FISC for any quarterly renewal application should be 

manageable. Further, this after the fact procedure would not present the time pressure of 

individualized FISC review prior to querying the database. 

The fourth immediate change is to extend privacy safeguards to the database that 

contains all of the metadata generated by queries run on RAS-approved selectors. As 

described above, NSA uses RAS-approved selectors to run queries on the full database of 

calling records termed the “collection store.” Under the automated query process approved 

by the FISC, the results of all queries, containing millions of call detail records retrieved 

through contact chaining, are compiled in a database called the “corporate store.” The vast 

majority of the call detail records transferred will concern U.S. persons as to whom there is 

no suspicion of any connection to terrorism. In essence, the corporate store will contain an 

ever-growing subset of telephone calling records. Under the current minimization 

procedures approved by the FISC, analysts may query the corporate store database with 

any selector, without prior RAS approval — so long as they have a valid foreign intelligence 

purpose — and seemingly may engage in data mining or other forms of analysis besides 

querying. The Board recommends that this rule be changed. Telephony metadata on 
172

presumptively innocent Americans, whether in the large database or a subset, should be 

subject to query only based on the same reasonable articulable suspicion standard.
173

Part 8:

DISCUSSION AND RECOMMENDATIONS REGARDING THE

FOREIGN INTELLIGENCE SURVEILLANCE COURT

I. Overview of the Foreign Intelligence Surveillance Court 

The Foreign Intelligence Surveillance Court (“FISC” or “FISA court”) is a critical 

component of the system of checks and balances that our nation has created around the 

exercise of national security powers. When Congress created the court in 1978 in response 

to concerns about the abuse of electronic surveillance,597 it represented a major 

restructuring of the domestic conduct of foreign intelligence surveillance, with 

constitutional implications. Until then, successive Presidents of both parties had authorized 

national security wiretaps and other searches solely on the basis of their powers under 

Article II of the Constitution. The Foreign Intelligence Surveillance Act (“FISA”) of 1978 

provided a procedure under which the Attorney General could obtain a judicial warrant 

authorizing the use of electronic surveillance in the United States for foreign intelligence 

purposes.598 As the House Permanent Select Committee on Intelligence explained in its 

1978 report recommending adoption of FISA:

The history and law relating to electronic surveillance for "national security" 

purposes have revolved around the competing demands of the President’s 

constitutional powers to gather intelligence deemed necessary to the 

security of the nation and the requirements of the fourth amendment. The 

U.S. Supreme Court has never expressly decided the issue of whether the 

President has the constitutional authority to authorize warrantless electronic 

surveillance for foreign intelligence purposes. Whether or not the President 

has an “inherent power" to engage in or authorize warrantless electronic 

surveillance and, if such power exits, what limitations, if any, restrict the 

scope of that power, are issues that have troubled constitutional scholars for 

decades.599

 

597 See S. Rep. No. 95-604(I), at 7 (1978) (“Senate Judiciary Committee Report”) (“The legislation is in 

large measure a response to the revelations that warrantless electronic surveillance in the name of national 

security has been seriously abused.”); H.R. Rep. No. 95-1283(I), at 111 (1978) (“HPSCI Report”) (dissenting 

views of Reps. Wilson, McClory, Robinson and Ashbrook) (“No one can deny that abuses of electronic 

surveillance have taken place in the past under the claim of ‘national security.’”). 

598 Senate Judiciary Committee Report at 5. When enacted, FISA did not cover activities occurring 

outside the United States. By and large, that remains true today, the only exception being acquisitions of 

foreign intelligence that intentionally target a U.S. person reasonably believed to be outside the United States, 

which were brought within the jurisdiction of the FISC under the FISA Amendments Act of 2008. See 50 U.S.C. 

§ 1881c.

599 HPSCI Report at 15. 
174

In essence, FISA represented an agreement between the executive and legislative 

branches to leave that debate aside600 and establish a special court to oversee foreign 

intelligence collection. While the statute has required periodic updates, national security 

officials have agreed that it created an appropriate balance among the interests at stake, 

and that judicial review provides an important mechanism regulating the use of very 

powerful and effective techniques vital to the protection of the country.601 

Currently, the FISA court is comprised of eleven judges. The Chief Justice of the 

United States appoints these judges from among sitting U.S. district court judges, who 

previously have been appointed by the President and confirmed by the Senate. The Chief 

Justice also appoints one of the FISC judges to serve as presiding judge. These judges serve 

on the FISC for staggered seven-year terms while continuing to maintain a full docket of 

cases in their home districts. FISA requires that the judges be drawn from at least seven 

different U.S. judicial circuits. At least three of the eleven must reside within twenty miles 

of Washington, D.C.,602 to ensure that there will be a judge available to hear emergency 

matters. 

Over time, the scope of FISA and the jurisdiction of the FISA court have evolved. 

When FISA was first enacted, the jurisdiction of the court was limited to reviewing 

applications for “electronic surveillance.” That term has its own unique and complex 

definition under the statute but largely it concerns the acquisition of the contents of 

electronic communications.

603 In 1994, Congress amended FISA to permit applications for 

and orders authorizing physical searches.604 In 1998, Congress further amended the statute 

 

600 “[T]he bill does not recognize, ratify, or deny the existence of any Presidential power to authorize 

warrantless surveillance in the United States in the absence of the legislation. It would, rather, moot the 

debate over the existence or non-existence of this power[.]” HPSCI Report at 24. This agreement between 

Congress and the executive branch to involve the judiciary in the regulation of intelligence collection 

activities did not and could not resolve constitutional questions regarding the relationship between 

legislative and presidential powers in the area of national security. See In re: Sealed Case, 310 F.3d 717, 742 

(FISA Ct. Rev. 2002) (“We take for granted that the President does have that authority [inherent authority to 

conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could 

not encroach on the President’s constitutional power.”). 

601 See, e.g., FISA Hearing: Hearing before the Permanent Select Committee on Intelligence, 110th Cong. 

(2007) (statement of Michael McConnell, Director of National Intelligence) (“It is my steadfast belief that the 

balance struck by the Congress in 1978 was not only elegant, it was the right balance to allow my Community 

to conduct foreign intelligence while protecting Americans.”); Joint Statement for the Record of James R. 

Clapper, Director of National Intelligence, and General Keith B. Alexander, Director, National Security Agency, 

before the Senate Committee on the Judiciary, at 9 (Oct. 2, 2013) (“On the issue of FISC reform, we believe 

that the ex parte nature of proceedings before the FISC is fundamentally sound and has worked well for 

decades in adjudicating the Government’s applications for authority to conduct electronic surveillance or 

physical searches in the national security context under FISA.”).

602 50 U.S.C. § 1803(a). The Patriot Act expanded the number of judges on the FISC from seven to eleven 

and added the requirement that three of the judges must reside within twenty miles of Washington, D.C.

603 50 U.S.C. § 1801(f).

604 Pub. L. No. 103-359, § 807, 108 Stat. 3423, 3443 (1994) (codified at 50 U.S.C. §§ 1821 to 1829).
175

to add authority for the FISC to review and approve applications for the installation and use

of pen registers and trap and trace devices to collect foreign intelligence.605 Also in 1998, 

Congress amended the statute to create a “business records” provision, which authorized 

the FISA court, at the government’s request, to order a common carrier, public 

accommodation facility, physical storage facility, or vehicle rental facility to release records 

in its possession pertaining to a foreign power or agent of a foreign power.606 That

authority was substantially amended by Section 215 of the Patriot Act.607

However, despite these changes, the main business of the Court prior to 2004 

remained the consideration of government applications relating to a specific person, a 

specific place, or a specific communications account or device. Numerically, consideration 

of such particularized applications still constitutes the vast majority of the court’s 

workload. In considering these applications, judges sitting on the FISC perform a role very 

similar to that performed by judges and magistrates in ordinary criminal cases. 

Proceedings are conducted ex parte; that is, with only government attorneys appearing 

before the court, which is the same way that applications for a search warrant or a wiretap 

are considered in criminal proceedings. Such individualized applications tend to be very 

fact-specific; often the only question is whether the application meets the express standard 

set forth in FISA. As a former judge of the FISA court recently explained, “approving search 

warrants and wiretap orders and trap and trace orders and foreign intelligence 

surveillance warrants one at a time is familiar ground for judges.”608

There is one major difference between these individualized FISC and criminal 

proceedings. FISA applications and the proceedings associated with them are not only ex 

parte, they are also secret, to a degree that makes it very difficult for a target of surveillance 

to ever challenge the legality of the government’s actions.609 As Judge James G. Carr, a 

senior district court judge and former member of the FISA court, has pointed out “[T]he 

subject of a conventional Fourth Amendment search warrant knows of its execution, can 

challenge its lawfulness if indicted, and can, even if not indicted, seek to recover seized 

property or possibly sue for damages. In contrast, except in very, very rare instances, 

 

605 Pub. L. No. 105-272, § 601, 112 Stat. 2396, 2404 (1998) (codified at 50 U.S.C. §§ 1841 to 1846).

606 Pub. L. No. 105-272, § 602, 112 Stat. 2396, 2410 (1998) (codified at 50 U.S.C. §§ 1861 to 1863).

607 Pub. L. No. 107-56, § 215, 115 Stat. 272, 287 (2001) (codified at 50 U.S.C. § 1861). See pages 40 to 41 

of this Report for a discussion of this expanded authority.

608 Privacy and Civil Liberties Oversight Board, Transcript of Workshop Regarding Surveillance 

Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the Foreign 

Intelligence Surveillance Act, at 35 (July 9, 2013) (statement of Judge James Robertson), available at

http://www.pclob.gov/.

609 FISA directs that the “record of proceedings under this Act, including applications made and orders 

granted, shall be maintained under security measures established by the Chief Justice in consultation with the 

Attorney General and the Director of National Intelligence.” 50 U.S.C. § 1803(c).
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suppression or other means of challenging the lawfulness of a FISA order is simply not 

available to the subject of a FISA order.”610 Although criminal defendants must be notified if 

the government intends to enter into evidence or otherwise use against them evidence 

derived from FISA surveillance, special procedures under the statute limit what can be 

disclosed to defendants, and proceedings on a motion to suppress must be held ex parte if 

the Attorney General files an affidavit that disclosure or an adversary hearing would harm 

the national security of the United States.611 In practice, the government always files such 

an affidavit, and it appears that no defendant has ever obtained a copy of the government’s 

statement of probable cause or other documents that served as the basis for FISA 

surveillance.612

II. The FISC’s Role after 9/11

Beginning in 2004, the role of the FISA court changed as a result of two significant 

developments. First, in 2004, the government approached the court with a request to 

approve a program involving what is now referred to as “bulk collection.” Specifically, the 

government requested that the court approve, under the FISA provisions for pen registers 

and trap and trace devices, the bulk collection of “to and from” data concerning the Internet 

communications of many unspecified persons. Both the government and the court 

recognized that the application raised novel legal issues not presented in the individualized 

applications that had characterized the court’s work until then. The government submitted 

a lengthy memorandum of law supporting its request, and the court, when it approved the 

request, issued a lengthy opinion addressing the legal issues presented. That request for 

collection of Internet metadata was followed by one in 2006 concerning telephony 

metadata, filed under a different provision of FISA and thus presenting further unique 

questions. 

 

610 Prepared Remarks of James G. Carr, Senior U.S. District Judge, N.D. Ohio, Senate Judiciary Committee 

Hearing: Strengthening Privacy Rights and National Security: Oversight of FISA Surveillance Programs (July 31, 

2013), available at http://www.judiciary.senate.gov/pdf/7-31-13CarrTestimony.pdf.

611 50 U.S.C. § 1806(f).

612 Jimmy Gurulé, FISA and the Battle Between National Security and Privacy, JURIST (Feb. 17, 2012)

(noting that no court has ever disclosed FISA documents to a defendant and concluding that defendants face 

“insurmountable legal hurdles” to suppress evidence derived from electronic surveillance or physical 

searches authorized under FISA). It is our understanding that these practices will not be affected by the DOJ’s 

recent decision to notify defendants when surveillance under FISA leads to other evidence that the 

government intends to introduce against them. See Charlie Savage, Door May Open for Challenge to Secret 

Wiretaps, N.Y. TIMES (Oct. 16, 2013) (reporting that the DOJ had been taking a narrow view of “derived from” 

and had not been notifying defendants if they had been targeted under FISA but the information obtained was 

not itself introduced but had led to other evidence that was introduced).
177

A second major development occurred when Congress enacted the FISA 

Amendments Act of 2008 (“FAA”), which authorized the Attorney General and the Director 

of National Intelligence (“DNI”) to target the electronic communications of persons 

reasonably believed to be located outside the United States, for the purpose of acquiring 

foreign intelligence information. The FAA authorized the Attorney General and the DNI to 

issue directives requiring electronic communications service providers to assist the 

government in collecting these communications. In contrast to other acquisitions of 

content authorized under FISA, the FAA did not require the government to seek the FISA 

court’s approval of its decisions about which individuals to target; instead, the Act 

authorized the court to review annual “certifications” by the government and to review the 

targeting and minimization procedures adopted by the government for this program. The 

required certifications must include an affidavit by an appropriate official attesting that 

there are targeting and minimization procedures in place that meet statutory requirements 

and stating that a significant purpose of the acquisition is to obtain foreign intelligence 

information.613 The FAA required the government to assess its compliance with the 

targeting and minimization procedures and to report its assessment to the court on a semiannual basis and to report other implementation details to the court on an annual basis. 

From time to time, in response to compliance lapses brought to the FISA court’s attention 

by the government614 the FISC has conducted detailed inquiries into specific technical and 

constitutional issues arising in the implementation of the government’s authority.

III. Process for FISC Review of Government Applications

Whether the FISA court is considering a particularized request or a programmatic 

one such as the bulk metadata collection program under Section 215, even before an 

application reaches the court, it undergoes extensive review in the executive branch. It is 

first reviewed by lawyers at the FBI, the NSA, or other agencies, and then by lawyers at the 

National Security Division of the Department of Justice (“NSD”), who present the 

government’s applications to the court. Review by the NSD frequently involves substantial 

back and forth between the agency seeking authorization and the DOJ lawyers, as the 

lawyers seek additional factual details about the target of the surveillance, technical 

information about the surveillance methodology, or assurances about how the information 

acquired will be used and disseminated. Agency personnel would say that at times these 

interactions are quasi-adversarial. At the conclusion of the process, the application will 

generally be quite lengthy and may have extensive supporting documentation, and it must 

 

613 50 U.S.C. § 1881a(g).

614 See pages 46 to 56 of this Report for a discussion of these compliance incidents.
178

be approved by the Attorney General, the Deputy Attorney General, or upon designation, 

the Assistant Attorney General for National Security.615 

At the FISC, each week one of the eleven judges who comprise the court is on duty in 

Washington. 616 Normally, a proposed application must be submitted to the duty judge by 

the DOJ at least seven days before the government seeks to have the matter entertained. 

Upon the court’s receipt of a proposed application, a member of the FISA court’s legal staff 

will review the application and evaluate whether it meets the legal requirements under 

FISA. The FISC’s legal staff are career employees who have developed substantial expertise 

in FISA. They are much more senior and experienced than typical judicial law clerks in 

federal courts, who are often recent law school graduates. However, the legal staff’s job 

responsibilities and role are analogous to those of most judicial law clerks in that they 

serve as staff to the judges rather than as advocates.617 They conduct research to probe 

whether the government’s application should be granted. While their role includes 

identifying any flaws in the government’s statutory or constitutional analysis, it does not 

reach to contesting the government’s arguments in the manner of an opposing party. As 

part of their evaluation of a proposed application, the court attorneys will often have one or 

more telephone conversations with the DOJ lawyers to seek additional information and/or 

raise concerns about the application.618 The legal staff will prepare a written analysis of 

the application for the duty judge, which includes an identification of any weaknesses, 

flaws or other concerns. For example, the court attorney may recommend that the judge 

consider requiring the addition of information to the application; imposing special 

reporting requirements; or shortening the requested duration of an application. 

The duty judge will then review the proposed application along with the legal staff’s 

analysis and will make a preliminary determination about how to proceed. The judge’s 

 

615 50 U.S.C. § 1801(g) (defining Attorney General to include delegation to other specified officials); id

§ 1804(g) (Attorney General approval required).

616 The description of the FISC’s procedures in this section is based on its published Rules of Procedure 

and on two detailed letters from FISC presiding judge Reggie B. Walton to the chairman of the Senate 

Judiciary Committee. See United States Foreign Intelligence Surveillance Court, Rules of Procedure (Nov. 1,

2010); Letter from the Honorable Reggie B. Walton, Presiding Judge, U.S. Foreign Intelligence Surveillance 

Court, to the Honorable Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. Senate (July 29, 2013) 

(“Walton Letter of July 29, 2013”); Letter from the Honorable Reggie B. Walton, Presiding Judge, U.S. Foreign 

Intelligence Surveillance Court, to the Honorable Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. 

Senate (Oct. 11, 2013) (“Walton Letter of Oct. 11, 2013”).

617 See, David Kris, On the Bulk Collection of Tangible Things, LAWFARE RESEARCH PAPER SERIES, at 38-39 

(Sept. 29, 2013), available at http://www.lawfareblog.com/. Kris notes that Congress could expand the 

number of FISC legal advisers and “allow and encourage” FISC judges to designate one or more to draft briefs 

opposing the DOJ attorneys’ legal arguments. 

618 The legal staff interact with the government by telephone on a daily basis; they meet in person with 

the government as often as two to three times a week, or as few as one to two times a month, in connection 

with the various matters pending before the court. See Walton Letter of July 29, 2013, at 6.
179

responses might include indicating to the court staff that he or she is prepared to approve 

the application without a hearing; indicating an inclination to impose conditions on the 

approval of the application; determining that additional information is needed about the 

application; determining that a hearing would be appropriate before deciding whether to 

grant the application; or indicating an inclination to deny the application. The staff attorney 

will then relay the judge’s inclination to the government, and the government will then 

submit a final application, which may include additional information in response to the 

court’s feedback. The government may seek a hearing, for example, to challenge the judge’s 

proposed conditions. In some cases, the government may decide not to submit a final 

application or to withdraw one that has been submitted, after learning that the judge does 

not intend to approve it. Unless the government withdraws the application, the FISC judge, 

either with or without a hearing, will decide whether to approve or deny it or to approve it 

with conditions.

When a FISA court judge holds a hearing, it will be attended, at a minimum, by the 

Department of Justice attorney who prepared the application and a fact witness from the 

agency seeking the Court’s authorization. FISC judges have the authority to take testimony, 

for example, from government employees familiar with the technical issues associated with 

a particular technique or program or from personnel responsible for the operation of a 

program. Although it is an open question, in theory, at least, the court could also hear from 

outside experts on technical questions.619

It is frequently reported that the FISA court approves a very large percentage of 

government applications. In fact, however, the approval rate for wiretap applications in 

ordinary criminal cases is higher than the approval rate for FISA applications.620 Moreover, 

the FISA statistics do not take into account the changes to the final applications that are 

ultimately submitted, made as a result of the back and forth between the FISC legal staff 

and government attorneys. Nor does the percentage of approvals take into account the 

applications that are withdrawn or never submitted in final form due to concerns raised by 

the court or its legal staff. The FISA court has recently kept track of such actions and has 

found that, during the three month period from July through September 2013, 24.4% of 

matters submitted to the FISA court ultimately involved substantive changes to the 

 

619 Judge James Carr, former FISC judge, and James Baker, who previously practiced before the FISC, 

both testified at the PCLOB’s hearing on November 4, 2013, about the role of in-house legal counsel and the 

court’s ability to consult outside technologists. See Privacy and Civil Liberties Oversight Board, Transcript of 

Public Hearing, Consideration of Recommendations for Change: The Surveillance Programs Operated 

Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act, 

at 175-77, 204-08 (Nov. 4, 2013), available at http://www.pclob.gov/.

620 Walton Letter of July 29, 2013, at 3 n.6.
180

information provided by the government or to the authorities granted as a result of court 

inquiry or action.621

Applications that are novel or more complex, such as applications under Section 702 

and applications for renewal of bulk phone call metadata collection under Section 215, are 

handled using a process that is similar to the one described above, but more exacting. The 

government typically submits a proposed application of this type more than one week in 

advance; in the case of Section 702, proposed applications are typically filed approximately 

one month before filing a final application. Programmatic applications are accompanied by 

even more detailed information than an individualized application, and the court attorney 

who reviews that application spends more time reviewing it, as does the judge. In addition, 

under the court’s rules, if an application involves an issue not previously presented to the 

court, including novel issues of technology or law, the government must advise the FISC in 

writing of the nature and significance of the issue and submit a memorandum explaining 

the novel technique, novel implementation of an existing technique, or legal issue not 

previously considered by the court.622

FISA does not provide a mechanism for the FISC to invite non-governmental parties 

to provide views on pending government applications or otherwise participate in FISA 

court proceedings prior to approval of an application. After an order has been issued, the 

statute and the FISC rules provide opportunities for recipients of such orders (or of 

government directives issued under Section 702) to challenge those orders or directives.623 

Such challenges are very rare. There has been one instance in which the court heard 

arguments from a non-governmental party that sought to substantively contest a directive 

from the government.624 In another case that did not address the legality of a particular 

order but concerned service providers’ ability to disclose information about the number of 

orders they had received, the court heard from outside lawyers, but even though those 

outside attorneys had security clearances, they were not granted full access to the 

 

621 See Walton Letter of Oct. 11, 2013, at 1-2.

622 FISC Rule of Procedure 11.

623 In the case of particularized orders issued under Title I of FISA, a recipient of an order can refuse to 

comply, in which case the government may seek to compel, setting up the opportunity for the recipient to 

challenge the order. The FAA provides that an electronic communication service provider receiving a 

directive issued under Section 702 may file a petition to modify or set aside such directive with the FISC, 

which shall have jurisdiction to review such petition. See 50 U.S.C. § 1881a(h)(4). Likewise, a person receiving 

a production order under Section 215 may challenge the legality of that order or of the nondisclosure 

provision that accompanies Section 215 orders by filing a petition with FISC. See 50 U.S.C. § 1861(f).

624 Specifically, in 2007, the government issued directives to Yahoo!, Inc., pursuant to the Protect 

America Act of 2007. Yahoo! refused to comply, and the government filed a motion with the FISC to compel 

compliance. The court ordered and received briefing from both parties. See In Re Directives, 551 F.3d 1004 

(FISA Ct. Rev. 2008).
181

information that DOJ attorneys submitted to the FISC.625 Outside parties have participated 

as an amicus or friend of the court in several matters before the FISA court, but to date, 

those have involved proceedings seeking the release of various records and not an 

assessment of the government’s legal authorization to conduct surveillance.626

FISA also established a Foreign Intelligence Court of Review (“FISCR”), comprised of 

three judges drawn from U.S. district courts or courts of appeals. These judges are also 

appointed by the Chief Justice of the United States and also serve staggered seven-year 

terms. The appellate jurisdiction of the FISCR was originally limited to reviewing the denial 

of applications.627 Since 2006, when recipients of FISC orders under Section 215 were 

permitted to challenge those orders, the statute was amended to allow appeal to the FISCR 

whenever the FISA court denies a challenge to a Section 215 order.628 Likewise, the FISA 

Amendments Act of 2008 granted electronic communication service providers the right to 

appeal FISC decisions denying challenges to directives issued under the FAA.629 Appeals to 

the FISCR have been rare.630 FISA does not provide a way for the FISCR to receive the 

views of other non-governmental parties on appeals pending before it. However, the court 

has in one case accepted amicus curiae or friend of the court briefs on a significant legal

question pending before it.631 FISA also provides that the Supreme Court of the United 

 

625 At the PCLOB’s November 4, 2013, hearing, Marc Zwillinger, of ZwillGen PLLC, testified regarding his 

experience representing Internet service providers before the FISC, including a challenge by five Internet 

service providers seeking the right to disclose information about the number of FISA orders they receive. He 

noted that the outside counsel in the case with security clearances were denied access to certain government 

filings. See Privacy and Civil Liberties Oversight Board, Transcript of Public Hearing, Consideration of 

Recommendations for Change: The Surveillance Programs Operated Pursuant to Section 215 of the USA 

PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act, at 156-59 (Nov. 4, 2013), available 

at http://www.pclob.gov/. The litigation in this matter is ongoing.

626 See Walton Letter of July 29, 2013. Recently, the Center for National Security Studies sought 

permission to file an amicus brief urging that Section 215 does not permit bulk collection of telephone 

records in connection with the renewal of the Section 215 program. The FISC granted permission for CNSS to 

file such an amicus brief, but only in a miscellaneous docket where it can be accessed by any FISC judge. See 

Memorandum Opinion, In re Application of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things No. BR 13-158 (FISA Ct. Dec. 18, 2013).

627 50 U.S.C. § 1803(b).

628 See 50 U.S.C. § 1861(f)(2). This provision was added as part of the modifications to Section 215 by 

the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 191 (2006).

629 Electronic communications service providers may also appeal an adverse decision when the DOJ has 

moved to compel their compliance with such a directive. See 50 U.S.C. § 1881a(h)(6).

630 Only two opinions from the FISCR have been released. These are In Re Sealed Case, 310 F.3d 717 

(FISA Ct. Rev. 2002) (an appeal by the government), and In Re Directives, 551 F.3d 1004 (FISA Ct. Rev. 2008) 

(an appeal by Yahoo! in the case described above). Based upon the best information available to the Board, 

these are the only two cases decided by the FISCR to date.

631 See In Re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002).
182

States has jurisdiction to review FISCR decisions,632 but to date, no FISC decision has come 

before the Supreme Court for review.633

IV. Proposals for Reform of the FISC Process 

In recent months, numerous proposals have been offered to modify the process by 

which the FISA court considers government applications, especially in cases involving 

novel legal or technical issues. These proposals have arisen in part from a concern that the 

FISC’s ex parte, classified proceedings do not take adequate account of positions other than 

those of the government. In considering these proposals, the Board gives great weight to 

two points: that the FISC, its judges, their staff, and the government lawyers who appear 

before the court operate with integrity and give fastidious attention and review to 

surveillance applications; but also that it is critical to the integrity of the process that the 

public have confidence in its impartiality and rigor.634

Proposals to change the FISA court process must take into account the imperative of 

secrecy in the application of some of the nation’s most sensitive intelligence collection 

techniques; the importance of speed in responding to often fast-breaking events posing 

severe risk to the national security; the resource limits faced by the court and its judges 

(who carry an ordinary civil and criminal caseload in their “home” districts); and 

constitutional issues. 

With those considerations in mind, we believe that some reforms are appropriate 

and would help bolster public confidence in the operation of the court. The most important 

reforms concern three sets of issues: (1) providing a greater range of views and legal 

arguments to the FISC as it considers novel and significant issues; (2) facilitating appellate 

review of such decisions; and (3) providing increased opportunity for the FISC to receive 

technical assistance and legal input from outside parties. In addition, in the next section of 

this Report, we discuss and make recommendations regarding the need for greater public 

transparency for the legal opinions adopted by the court.

 

632 50 U.S.C. § 1803(b), § 1861a(f), § 1881a(h)(6), § 1881a(i)(4).

633 The Supreme Court has not heard any appeals of FISC orders, nor has it ever considered the merits of 

a FISA order or ruled on the constitutionality of the statue. In Clapper v. Amnesty International USA, 133 S. Ct. 

1138 (2013), the Court held that the petitioners lacked standing to bring a constitutional challenge to the 

FAA, and on November 18, 2013, the Court denied a mandamus petition filed by the Electronic Privacy 

Information Center that had sought to challenge the FISC’s order approving the Section 215 telephony 

metadata program. See In Re Electronic Privacy Information Center, No. 13-58 (U.S. Nov. 18, 2013).

634 The PCLOB heard from three judges who formerly served on the FISC. Judge James Robertson, who 

served on the FISC from 2002 through 2005, participated in the Board’s July 9, 2013, public workshop; Judge 

James Carr, who served on the FISC from 2002 through 2008, participated in our November 4, 2013, public 

hearing; Judge John Bates, who served on the Court from 2006 to February, 2013 and as its presiding judge 

from 2009 to 2013, met with the Board on October 16, 2013.
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V. Recommendations Regarding FISC Operations

Recommendation 3. Congress should enact legislation enabling the FISC to hear 

independent views, in addition to the government’s views, on novel and 

significant applications and in other matters in which a FISC judge determines 

that consideration of the issues would merit such additional views.

Although the FISC continues to review applications for individualized FISA 

warrants, in the past decade it has also been called upon to evaluate requests for broader 

collection programs, such as the 215 telephony metadata program, and to review extensive 

compliance reports regarding the implementation of the surveillance authorized under 

Section 702. This expansion of the FISC’s jurisdiction has presented it with complex and 

novel issues of law and technology. Currently, these issues are adjudicated by the court 

based only on filings by the government, supplemented by the research and analysis of the 

judges and their experienced legal staff. 

Our judicial system thrives on the adversarial presentation of views. As Judge 

Robertson noted: 

[A]nybody who has been a judge will tell you that a judge needs to hear both 

sides of a case before deciding. It’s quite common, in fact it’s the norm to read 

one side’s brief or hear one side’s argument and think, hmm, that sounds 

right, until we read the other side.635

Nonetheless, the ex parte process works well when the FISC is considering 

individualized applications presenting no novel legal or technical questions. The inquiry 

there is fact-based, and the legal standard is familiar and explicit in the statute. 

Consideration of individualized surveillance applications is a function that judges in other 

courts all over the country routinely perform on an ex parte basis, and it is no less 

appropriate in the national security context. 

However, there is a growing consensus that the ex parte approach is not the right

model for review of novel legal questions or applications involving broad surveillance 

programs that collect information about the communications of many people who have no 

 

635 Privacy and Civil Liberties Oversight Board, Transcript of Workshop Regarding Surveillance 

Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the Foreign 

Intelligence Surveillance Act, at 34 (July 9, 2013) (statement of Judge James Robertson); see also Privacy and 

Civil Liberties Oversight Board, Transcript of Public Hearing, Consideration of Recommendations for Change: 

The Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the 

Foreign Intelligence Surveillance Act, at 151 (Nov. 4, 2013) (testimony of Judge James Carr) (“[I]t’s how we 

[judges] work, through the adversary process.”), available at http://www.pclob.gov/.
184

apparent connection to terrorism. 636 The Board believes that, when FISC judges are

considering requests for programmatic surveillance affecting numerous individuals or 

applications presenting novel issues, they should have the opportunity to call for thirdparty briefing on the legal issues involved. In addition to assisting the court, a mechanism 

allowing FISC judges to call upon independent expert advocates for a broader range of legal 

views could bolster the public’s trust in its operations and in the integrity of the FISA 

system overall. 

Accordingly, the Board recommends that Congress amend FISA to authorize the 

FISC to create a pool of “Special Advocates” who would be called upon to present 

independent views to the court in important cases. Even in the absence of such legislative 

authority, the Board believes the court has discretion to call upon outside lawyers, if they 

have the necessary national security clearances, to offer analysis of legal or technical issues, 

and the Board would urge the court to amend its rules to allow for such advocacy. 

However, it would be preferable to have a statutory basis for such a system.

The Board has examined the myriad bills introduced in Congress and proposals 

offered by advocates, scholars and others. The Board does not attempt to draft legislative 

language or to express views on which program details should be expressed in statute and 

which may be left to court rules of procedure. However, the Board has identified key 

elements of an advocacy process that should offer the court the benefit of outside expert 

participation without unduly disturbing the structure or functioning of the vast majority of 

the court’s proceedings. 

To serve this purpose, Congress should authorize the establishment of a panel of 

outside lawyers to serve as Special Advocates before the FISC in appropriate cases. These 

lawyers would not become permanent government employees, but would be available to 

be called upon to participate in particular FISC proceedings. The presiding judge of the FISC 

should select the attorneys to serve on the panel. The attorneys should be drawn from the 

private sector, and the Board expects that they would possess expertise in national 

security, privacy and civil liberties issues and be capable of obtaining appropriate security 

clearances. The attorneys would need office space with appropriate secure facilities, ideally 

within the FISA court. Congress should ensure that the FISC has adequate appropriations to 

 

636 See Transcript of July 9, 2013 Public Workshop, supra, at 34-37 (statement of Judge James 

Robertson); Transcript of November 4, 2013 Hearing, supra, at 148-52 (testimony of Judge James Carr). Judge 

Carr also presented his views in a New York Times op-ed, see James G. Carr, A Better Secret Court, N.Y. TIMES

(July 22, 2013), and in testimony before the Senate Judiciary Committee. See Prepared Remarks of James G. 

Carr, Senior U.S. District Judge, N.D. Ohio, Senate Judiciary Committee Hearing: Strengthening Privacy Rights 

and National Security: Oversight of FISA Surveillance Programs (July 31, 2013), available at

http://www.judiciary.senate.gov/pdf/7-31-13CarrTestimony.pdf.
185

implement and operate the Special Advocate program. The Board is confident that such a 

system would not raise any serious constitutional issues.637

In the Board’s view, the FISC should have discretion to choose the applications or 

other matters on which it would seek the Special Advocate’s views. In such cases, the FISC 

judge assigned to the matter would call upon one of the lawyers on the Special Advocate 

panel to participate in it. The FISC can establish specific rules for inviting a Special 

Advocate’s participation, including whether the lawyers on the panel would be invited on a 

rotating basis. The Board expects that the court would invite the Special Advocate to 

participate in matters involving interpretation of the scope of surveillance authorities, 

other matters presenting novel legal or technical questions, or matters involving broad 

programs of collection, but would not mandate the participation of the Special Advocate in 

any particular case. In addition, the Board would leave flexibility for a FISC judge to identify 

other matters that merit Special Advocate participation. The Board does not believe it is 

necessary or appropriate for Special Advocates to participate in all applications for 

individualized FISA orders, but the court should have the option of seeking input when 

such applications present novel legal or technical questions.

The role of the Special Advocate, when invited by the court to participate, would be 

to make legal arguments addressing privacy, civil rights, and civil liberties interests. The 

Board does not propose requiring the Special Advocate to serve as the government’s 

adversary, as opposing lawyers would do in traditional litigation. The Special Advocate

should not be expected to oppose every argument made by the government. Rather, the 

Special Advocate would review the government’s application and exercise his or her 

judgment about whether the proposed surveillance or collection is consistent with law or 

unduly affects privacy and civil liberties interests. The Special Advocate would rely on both 

statutory and constitutional arguments as appropriate. The Special Advocate would have 

discretion to make legal arguments opposing the application in its entirety, advocating 

modifications to the application that would address privacy and civil liberties-related legal 

concerns, or to conclude that the application was lawful and did not unduly burden privacy 

or civil liberties.

As noted above, current FISC Rule of Procedure 11 requires that if an application 

involves any novel issues, including novel issues of technology or law, the government 

must advise the FISC in writing of the nature and significance of the issue and submit a 

memorandum explaining the novel technique or legal interpretation. This existing 

 

637 For example, the Appointments Clause would not be implicated because the role we suggest would 

not provide the Special Advocate with the requisite legal authority to qualify as an officer under this clause. 

See Andrew Nolan, Richard M. Thompson II, & Vivian S. Chu, Introducing a Public Advocate into the Foreign 

Intelligence Surveillance Act’s Courts: Select Legal Issues, CONGRESSIONAL RESEARCH SERVICE, at 8-13 (Oct. 25, 

2013) (outlining circumstances under which a public advocate role might cause an Appointments Clause 

problem).
186

requirement provides a useful mechanism to trigger consideration of whether Special 

Advocate participation would be beneficial. If the presiding judge determined that Special 

Advocate participation would be helpful based on the government’s Rule 11 submission, 

the judge could immediately invite Special Advocate participation. Otherwise, FISC rules 

could require that, upon receiving such a notification, the presiding judge should seek a 

Special Advocate’s preliminary views on whether the matter poses privacy or civil rights 

issues and whether the judge’s resolution of these issues would benefit from Special 

Advocate participation. Upon reviewing the Special Advocate’s submission, the judge would 

determine whether to invite his or her full participation. 

However, the circumstances prescribed in FISC Rule 11 are not the only 

circumstances where participation by the Special Advocate might be appropriate. FISC 

judges should also consider inviting Special Advocate participation for applications to 

renew already approved programs or implementations of techniques. This may be 

appropriate in matters that raised issues that were novel or significant at the time the 

original application was filed but were not fully considered at that time; matters in which 

intervening circumstances have raised issues that did not exist at the time of the original 

application; or in other matters where the judge concludes that it would be helpful to have 

a more thorough briefing with a diversity of views presented.

Once a Special Advocate has been invited to participate with respect to an 

application or other matter, the Special Advocate should be permitted to participate in all 

proceedings related to that application or matter and should have access to all government 

filings.

The procedures for participation by a Special Advocate should recognize that 

Special Advocate participation might not be possible in emergency circumstances before 

electronic surveillance begins. Tracking the existing rules for emergency employment of 

electronic surveillance under FISA, the procedures should permit the Special Advocate to 

participate when the court subsequently reviews the application after commencement of 

the emergency surveillance. 

The Board does not intend this proposal to confer on the Special Advocate any 

absolute right to participate in any matter. Instead, the Board intends that Special Advocate 

participation would be at the discretion of the court. Based on statements by former FISC 

judges, the Board believes that the FISC judges themselves will find value in hearing the 

views of independent advocates in difficult cases. Their experience with and dedication to 

the more expansive proceedings in their regular district court roles will insure that the 

Special Advocate will be invited to participate in the type of novel and difficult cases that 

have inspired the current debate. 
187

One of the policy underpinnings of the Board’s recommendation is that providing an 

independent voice in FISC proceedings will increase public confidence in the integrity of 

those proceedings. Toward this end, the Board recommends that the rules for the Special 

Advocate program be made public and that the Attorney General provide regular and 

public reports on the program’s operation. Those recommendations are discussed in detail 

in the next section of this Report concerning transparency. 

Recommendation 4. Congress should enact legislation to expand the 

opportunities for appellate review of FISC decisions by the FISCR and for review 

of FISCR decisions by the Supreme Court of the United States.

Over the past decade, the FISC has generated a significant body of law interpreting 

FISA authorities and other potentially applicable statutes, and analyzing related 

constitutional questions. However, FISC opinions have been much less likely to be subject 

to appellate review than the opinions of ordinary federal courts. Virtually all proponents of 

FISC reform, including judges who have served on the court, agree that there should be a 

greater opportunity for appellate review of FISC decisions by the FISCR and for review of 

the FISCR’s decisions by the Supreme Court of the United States.638 Providing for greater 

appellate review of FISC and FISCR rulings will strengthen the integrity of judicial review 

under FISA. Providing a role for the Special Advocate in seeking that appellate review will 

further increase public confidence in the integrity of the process.

Identifying the precise mechanism by which the Special Advocate could seek 

appellate review of a FISC decision that has rejected arguments based on alleged 

infringements of privacy or civil liberties is a hard task, but such a mechanism should not 

be impossible to design.

There are two basic ways in which the Special Advocate could seek judicial review 

of a FISC order: by directly filing a petition for review with the FISCR of orders that the 

Special Advocate believes are inconsistent with FISA or the Constitution; or by requesting 

that the FISC certify an appeal of its order. Under either approach, the Board would expect 

the Special Advocate, in deciding whether to seek an appeal, to exercise his or her judgment 

about the importance of the legal questions at stake and the severity of the implications for 

 

638 See, e.g., Transcript of November 4, 2013 Hearing, supra, at 148-52 (testimony of Judge James Carr) 

(“[C]ertainly, in my day-to-day functions as an ordinary Article III judge, it [appellate review] is very 

important.”). See also Angela Canterbury (Project On Government Oversight), Kel McClanahan (National 

Security Counselors), & Patrice McDermott (OpenTheGovernment.org), Submission to the Privacy and Civil 

Liberties Oversight Board, at 4 (Aug. 1, 2013) (recommending that attorney representing the public “have the 

opportunity to appeal adverse decisions”), available at 

http://www.regulations.gov/#!documentDetail;D=PCLOB-2013-0005-0029; Gregory T. Nojeim (Center for 

Democracy and Technology), Submission to the Privacy and Civil Liberties Oversight Board, at 6-7 (Aug. 1, 

2013) (recommending that ombudsman representing civil liberties interests be able to address “whether an 

order that is granted should be appealed to the FISA Court of Review”), available at 

http://www.regulations.gov/#!documentDetail;D=PCLOB-2013-0005-0034.
188

privacy or civil liberties. The Special Advocate would not be considered an adversary in the 

traditional sense, and would not be required to seek an appeal of every order that did not 

adopt the position he or she took before the FISC.

If Congress were to adopt the first approach, the Board would recommend a 

structure allowing the Special Advocate to file a petition with the FISCR seeking review of a 

FISC order and giving the FISCR discretionary review of the petition. This would be similar 

to the process of seeking certiorari in the Supreme Court of the United States. Congress or 

the FISCR could enact or adopt standards by which the FISCR would decide which petitions 

to grant, similar to the standards by which the Supreme Court decides when to grant a 

petition for certiorari.639 If the FISCR granted review, the Special Advocate would be 

permitted to participate in the matter, just as in the FISC. Similarly, Congress could 

authorize the Special Advocate to file a petition for certiorari seeking the Supreme Court’s 

review of a FISCR decision in which the Special Advocate had participated. This approach 

would be consistent with the Board’s recommendation above, which grants the court some 

discretion to manage the Special Advocate’s role in proceedings. It also would have the 

benefit of allowing the Special Advocate to appeal without the permission of the court that 

issued the order in question. 

Under the second approach, Congress would enact legislation authorizing FISC 

judges to certify their decisions to the FISCR for review. The Special Advocate would be 

eligible to file a motion with the FISC requesting the court to certify its decision to the 

FISCR and, if it were denied by the FISC, to appeal that denial. The Special Advocate could 

participate in any appellate proceedings that followed. In addition, Congress could amend 

28 U.S.C. § 1254(2) to add the FISCR as a court authorized to certify a question of law to the 

Supreme Court for review,640 and the Special Advocate could be authorized to petition the 

FISCR to certify its decision to the Supreme Court for review. Under this approach, the 

decision whether to certify a case for review to the FISCR would be left to the discretion of 

the FISC or the FISCR, and the decision whether to certify a case for review to the Supreme 

Court would be left to the discretion of the FISCR. 

Both approaches avoid concerns by some commentators that a Special Advocate 

lacks Article III standing to directly appeal a FISC decision.641

 

639 See Rules of the Supreme Court of the United States, Rule 10 (July 1, 2013), available at 

http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf.

640 This statute currently provides that one of the methods by which cases in the courts of appeals may 

be reviewed by the U.S. Supreme Court is as follows: “By certification at any time by a court of appeals of any 

question of law in any civil or criminal case as to which instructions are desired, and upon such certification 

the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the 

entire matter in controversy.” 28 U.S.C. § 1254(2).

641 See e.g., Andrew Nolan, Richard M. Thompson II, & Vivian S. Chu, Introducing a Public Advocate into 

the Foreign Intelligence Surveillance Act’s Courts: Select Legal Issues, CONGRESSIONAL RESEARCH SERVICE, at 20-24 
189

Our recommendations for enhancing appellate review are based on the assumption 

that, as with traditional litigation in federal court, a FISC order would take effect 

immediately unless the court granted a stay of its order. Thus, when a Special Advocate 

appeals or seeks certification of an appeal of a FISC order, the surveillance approved by the 

FISC should generally be permitted to proceed pending any further review. The Special 

Advocate should be permitted to file a motion for a stay pending appeal that, if granted, 

would prohibit the government from immediately undertaking the approved surveillance. 

The government should be allowed to oppose this order and, as with similar stay motions 

in U.S. District Court, the FISC judge should determine whether to grant the stay. If the 

motion is denied, the Special Advocate should also be permitted to file similar motions in 

the FISCR and Supreme Court. FISA Section 103(f) already makes clear that judges of the 

FISC and FISCR and justices of the Supreme Court have the authority to order such stays 

pending review.

Recommendation 5. The FISC should take full advantage of existing authorities 

to obtain technical assistance and expand opportunities for legal input from 

outside parties.

FISC judges should take advantage of their ability to appoint Special Masters or 

other technical experts to assist them in reviewing voluminous or technical materials, 

either in connection with initial applications or in compliance reviews. 

In addition, the FISC and the FISCR should develop procedures to facilitate amicus 

participation by third parties in cases involving questions that are of broad public interest, 

where it is feasible to do so consistent with national security. The Board recognizes that it 

will be difficult to take advantage of amicus participation by parties who lack national 

security clearances and cannot be privy to the facts of the case. Nevertheless, the fact that 

there has already been a case in which the FISCR has accepted input from amici and the 

FISC’s recent order granting permission for the filing of an amicus brief642 demonstrate that 

it is sometimes possible. The Special Advocate could advise the FISC or FISCR that amicus 

participation would be helpful in a particular case and ask the court to provide appropriate 

public notice of the opportunity for amicus participation.

 

(Oct. 25, 2013); Marty Lederman & Steve Vladeck, The Constitutionality of a FISA “Special Advocate,” JUST 

SECURITY (Nov. 4, 2013), http://justsecurity.org/2013/11/04/fisa-special-advocate-constitution/. The Board 

does not take a position on whether these concerns about lack of standing would ultimately prevail in 

litigation. 

642 See Memorandum Opinion, In re Application of the Federal Bureau of Investigation for an Order 

Requiring the Production of Tangible Things No. BR 13-158 (FISA Ct. Dec. 18, 2013).
190

Part 9:

DISCUSSION AND RECOMMENDATIONS REGARDING TRANSPARENCY

I. Introduction

In a representative democracy, the tension between openness and secrecy is 

inevitable and complex. The challenges are especially acute in the area of intelligence 

collection, where the powers exercised by the government implicate fundamental rights 

and our enemies are constantly trying to understand our capabilities in order to avoid 

detection. In this context, both openness and secrecy are vital to our survival, and we must 

strive to develop and implement intelligence programs in ways that serve both values.643

Transparency is one of the foundations of democratic governance.644 Our 

constitutional system of government relies upon the participation of an informed 

electorate. This in turn requires public access to information about the activities of the 

government. Transparency supports accountability. It is especially important with regard 

to activities of the government that affect the rights of individuals, where it is closely 

interlinked with redress for violations of rights. 

There are also instrumental benefits to openness, as summarized by the Moynihan 

Commission:

Broad access to information promotes better decisions. It permits public 

understanding of the activities of government and promotes more informed 

debate and accountability. It increases the Government’s ability to respond to 

criticism and justify its actions to the public. It makes possible the free 

exchange of scientific information and encourages new discoveries that 

foster economic growth. By allowing a better understanding of our history, it 

provides opportunities to learn lessons from the past, and it makes it easier 

to quash unfounded speculation about the Government’s past actions. 

Reducing the amount of information in the classification system allows for 

better management and cost controls of that system and increases respect 

for the information that needs to stay protected. Greater access thus provides 

ground in which the public’s faith in its government can flourish.645

 

643 “Protecting information critical to our Nation’s security and demonstrating our commitment to open 

Government . . . are equally important priorities.” Exec. Order No. 13,526 (Dec. 29, 2009).

644 See Exec. Order No. 13,292 (Mar. 25, 2003) (“Our democratic principles require that the American 

people be informed of the activities of their Government”).

645 Report of the Commission on Protecting and Reducing Government Secrecy (“Moynihan Commission 

Report”), S. Doc. No. 105-2 at 49-50 (1997), available at

http://www.fas.org/sgp/library/moynihan/index.html. The Moynihan Commission report remains one of 
191

In the intelligence context, transparency regarding collection authorities and their 

exercise can increase public confidence in the intelligence process and in the monumental 

decisions that our leaders make based on intelligence products.646 With respect to 

electronic surveillance in particular, where the government depends on the cooperation of 

service providers and those service providers in turn depend for their commercial success 

on the trust of their customers, transparency, if coupled with a system of appropriate 

controls, can help boost public confidence in the security and confidentiality of 

communications services. Public disclosure showing that certain techniques are applied 

with more precision and under stricter controls than many fear can help allay concerns, 

benefiting U.S.-based companies in the global marketplace. Transparency also works in 

tandem with other forms of oversight and control, alerting Congress, courts, inspectors 

general and others, including this Board, to issues that merit deeper scrutiny in public and 

classified settings. As the 9/11 Commission noted, “[s]ecrecy, while necessary, can also 

harm oversight.”647

However, we must also recognize the critical functions served by government 

secrecy. To quote again from the Moynihan Commission:

Effective secrecy has proven indispensable to the functioning of government, 

serving the interests not only of the officials in power but of the governed as 

well. . . . The primary objective of government secrecy in the national security 

realm . . . is to protect U.S. interests by controlling information that provides 

an advantage (including the element of surprise) over an adversary or 

prevents that adversary from gaining an advantage that could damage the 

United States. . . . The maintenance of secrecy has proven essential to the 

successful development, implementation, and completion (or, conversely, the 

abandonment) of plans and missions. . . . The successful conduct of plans and 

missions in turn may depend on protecting key technologies. . . . Secrecy also 

is essential to the effective conduct of diplomatic negotiations. . . . Closely 

linked to [these] is the protection of internal policy deliberations: the 

negotiations among government officials that precede and accompany the 

development of the plans, missions, and external negotiations cited above. . . . 

Thus, drafts and memoranda used in negotiations often remain classified 

 

the best sources on both the importance of protecting secrets and the costs of secrecy. See id. at 6-10 

(discussing both principles).

646 See Nick Hopkins, Former NSA Chief: Western Intelligence Agencies must be more Transparent, THE 

GUARDIAN (Sept. 30, 2013) (quoting former NSA Director Michael Hayden: “It’s clear to me now that in liberal 

democracies the security services don’t get to do what they do without broad public understanding and 

support. And although the public cannot be briefed on everything, there has to be enough out there so that 

the majority of the population believe what they are doing is acceptable.”). 

647 9/11 Commission Report, supra, at 103.
192

even when the final positions and statements do not. . . . Finally, secrecy is 

essential in protecting confidential relationships with individuals.648

Despite widespread support for balancing openness and secrecy, there has been 

equally widespread consensus within and without the government that the system tilts too 

far in the direction of secrecy.649 Even officials who themselves have implemented the 

classification system have long been saying that the government has far too many 

secrets.650

Undoubtedly, “we can, and must, be more transparent.”651 The question is how. 

Generalities about the value of transparency do not go far in answering the hard questions 

of what can be disclosed and what must remain secret. Instead, progress may best be 

achieved by considering specific problems.652 In that spirit, our focus here will be on 

transparency with regard to the Section 215 program, the opinions of the FISC, and 

statistical reporting on the government’s use of FISA authorities. Insights garnered with 

respect to those three concrete matters may have broader value regarding transparency 

about other legal authorities of the government that affect the rights of individuals and 

about the scope of the exercise of those powers.

 

648 Moynihan Commission Report, supra, at 6-7.

649 There is a long history of official studies finding that too much information is classified. In 1956, the

Defense Department Committee on Classified Information found that “overclassification has reached serious 

proportions.” DEF. DEP’T COMM. ON CLASSIFIED INFO., REPORT TO THE SECRETARY OF DEFENSE BY THE COMMITTEE ON 

CLASSIFIED INFORMATION 6 (1956). Forty years later, the Moynihan Commission found that the information 

classification system sought to protect far too much information while not effectively protecting the most 

important secrets. See Moynihan Commission Report, supra. Fifteen years after that, the Public Interest 

Declassification Board (“PIDB”), an advisory committee established by Congress, concluded that the current 

classification system “keeps too many secrets, and keeps them too long.” Public Interest Declassification 

Board, Transforming the Security Classification System, at 2 (Nov. 2012), available at

http://www.archives.gov/declassification/pidb/recommendations/transforming-classification.html. For 

summaries of other official condemnations of overclassification, see Steven Aftergood, Reducing Government 

Secrecy: Finding What Works, 27 YALE L.& POL’Y. REV. 399, 404-07 (2009).

650 See, e.g., IC21: The Intelligence Community in the 21st Century: Hearing before H. Permanent Select 

Comm. on Intelligence, 104th Cong., at 204 (July 27, 1995) (testimony of former National Security Advisor 

Brent Scowcroft) (“I think there is no question that we classify too much.”). Former Deputy Under Secretary 

of Defense for Intelligence and Security Carol Haave told a House subcommittee in 2004 that the amount of 

defense information that is overclassified or unnecessarily classified could be as much as fifty percent. Too 

Many Secrets: Overclassification as a Barrier to Critical Information Sharing: Hearing before the Subcomm. 

On National Security, Emerging Threats and International Relations before H. Comm. on Gov’t Reform, 108th 

Cong., at 82 (Aug. 24, 2004) (testimony of Carol Haave).

651 President Barack Obama, Remarks by the President in a Press Conference at the White House (Aug. 9, 

2013), available at http://www.whitehouse.gov/the-press-office/2013/08/09/remarks-president-pressconference.

652 See Steven Aftergood, Reducing Government Secrecy: Finding What Works, supra, at 407-14.
193

We expect to return to transparency in our future work.653 In our first semi-annual 

report, issued before the Snowden leaks, the Board identified transparency as a crosscutting issue that it intended to pursue. In part, this Report contributes to that goal, as we 

seek to describe the Section 215 telephone metadata program in a more comprehensive 

and accurate way than has been done anywhere else so far.654 We plan to provide a 

similarly detailed picture of the Section 702 program in a subsequent report.

II. Recent Developments

In the aftermath of the Snowden disclosures, the government has released a 

substantial amount of information on the leaked government surveillance programs. These 

official disclosures have helped foster greater public understanding of government 

surveillance programs, although there remains a deep well of distrust. 

In August 2013, following the President’s directive, the Office of the Director of 

National Intelligence (“ODNI”) created a new public website, “IC on the Record.” Through 

this website, the ODNI has released thousands of pages of documents related to the Section 

215 and 702 programs as well as other material regarding FISA and the operation of the 

FISC more generally. The site also compiles a variety of public statements by government 

officials on these topics, including press statements and congressional testimony. 

The FISA court has also newly created a website where it posts pleadings, orders 

and other materials.655 Recently, public interest groups have initiated proceedings in the 

 

653 Promoting appropriate transparency in counterterrorism programs is an express part of the PCLOB’s 

statutory mandate. Our authorizing statute charges the Board with making our reports public, holding public 

hearings, and otherwise informing the public of our activities, as appropriate and in a manner consistent with 

the protection of classified information and applicable law. See 42 U.S.C. § 2000ee(f). 

654 A group of 53 non-governmental organizations joined in a letter to the PCLOB on July 9, 2013, asking 

that the PCLOB seek disclosure “of sufficient information to enable the public to understand the existing legal 

authorities for national security surveillance of Americans and the administration’s interpretation of their 

scope, and to permit an informed public debate on government surveillance.”

655 U.S. Foreign Intelligence Surveillance Court Public Filings (Beginning June 2013), available at 

http://www.uscourts.gov/uscourts/courts/fisc/index.html.
194

FISC seeking release of FISC decisions656 and seeking the ability to participate in 

proceedings on future government applications for renewal of FISA programs.657

There have also been increased disclosures under the Freedom of Information Act, a 

cornerstone of our system of transparency whose limitations in the national security arena 

are well known. Some of the documents newly released to the public by the government 

have been released in lawsuits filed under FOIA years before the Snowden leaks.658 After 

the Snowden leaks, the government has confirmed the existence of these programs, defined 

the scope of documents discoverable in the litigation relatively broadly, and moved 

expeditiously to create redacted versions of classified documents for release. 

However, to date the official disclosures relate almost exclusively to specific 

programs that had already been the subject of leaks, and we must be careful in citing these 

disclosures as object lessons for what additional transparency might be appropriate in the 

future. Any harm to national security was already done with Snowden’s illegal disclosures. 

Additional material has been officially disclosed to correct misperceptions caused by 

fragmentary leaks, but in part such disclosures were considered appropriate because it was 

judged that the marginal additional harm to national security would be minimal. 

The reactive nature of the government’s disclosures gives little insight into what 

principles should guide transparency in any programs not yet disclosed or still on the 

drawing board. Nor do we yet have insights into what in retrospect the intelligence 

 

656 In one case pending before the FISC where public interest groups sought disclosure of a FISC opinion 

issued on February 19, 2013 interpreting Section 215, Judge Saylor ordered the government to submit a 

detailed explanation of its conclusion that it was unable to create a redacted version of that opinion. In re: 

Orders of this Court Interpreting Section 215 of the Patriot Act, No. Misc. 13-02 (FISA Ct. Nov. 20, 2013), 

available at http://www.uscourts.gov/uscourts/courts/fisc/misc-13-02-order-131120.pdf. The government 

responded on December 20, 2013, indicating that it had created a proposed redacted opinion for the court’s 

review. See Submission of the United States in Response to the Court’s November 20, 2013 Order. Id. (FISA Ct. 

December 20, 2013), available at http://www.uscourts.gov/uscourts/courts/fisc/br13-02-order-131230.pdf.

657 In addition to seeking permission to file an amicus brief, as described earlier, the Center for National 

Security Studies’ petition sought to require the government to file a public application and have the FISC sit 

en banc when the FISC considered renewal of Section 215 orders in January 2014. Although the FISC granted 

permission for CNSS to file an amicus brief, it denied the other requests. See In re: Application of the FBI for an 

Order Requiring the Production of Tangible Things, No. BR 13-158 (FISA Ct. December 18, 2013), available at

http://www.uscourts.gov/uscourts/courts/fisc/br13-158-Memorandum-131218.pdf.

658 Years before the Snowden leaks, the American Civil Liberties Union and the Electronic Frontier 

Foundation had filed FOIA lawsuits seeking information on the government’s interpretation and application 

of Sections 215 and 702. See American Civil Liberties Union v. Federal Bureau of Investigation, No. 11-7562 

(S.D.N.Y. 2011) (FOIA suit seeking records concerning the FBI’s use and interpretation of Section 215);

Electronic Frontier Foundation v. U.S. Department of Justice, No. 11-5221 (N.D. Cal. 2011) (Section 215 FOIA); 

see also Electronic Frontier Foundation v. U.S. Department of Justice, No. 12-1441 (D.D.C. 2012) (Section 702 

FOIA).
195

community believes might have been disclosed earlier in the case of the leaked programs

without unreasonable risk to national security. 

The Board believes that the government must take the initiative and formulate longterm solutions that promote greater transparency for government surveillance policies 

more generally, in order to inform public debate on technology, national security, and civil 

liberties going beyond the current controversy over the Section 215 and 702 programs. In 

this effort, all three branches have a role.

There are some guideposts for how to draw the lines that need to be drawn to 

actually implement transparency in a responsible way. Some recent examples suggest 

possible criteria for transparency.

III. Transparency by the Executive Branch

On March 22, 2012, the Office of the Director of National Intelligence and the 

Department of Justice announced that they had adopted revised guidelines on the access, 

retention, use, and dissemination by the National Counterterrorism Center (“NCTC”) of 

information in databases of other agencies containing non-terrorism information. The 

ODNI and DOJ issued a press release about the guidelines659 and posted the guidelines 

themselves on the Internet.660 The announcement attracted immediate media attention.661

Public interest organizations published analyses of the guidelines.662 The ACLU produced a 

redline comparing the revised guidelines to the prior version.663 The Wall Street Journal

further investigated the background of the guidelines’ development and published a major 

 

659 Office of the Director of National Intelligence and U.S. Department of Justice Joint Statement, "Revised 

Guidelines Issued to Allow the NCTC to Access and Analyze Certain Federal Data More Effectively to Combat 

Terrorist Threats" (Mar. 22, 2012), available at http://www.dni.gov/index.php/newsroom/pressreleases/96-press-releases-2012/528-odni-and-doj-update-guidelines-for-nctc-access,-retention,-use,-anddissemination-of-information-in-datasets-containing-non-terrorism-information.

660 Guidelines for Access, Retention, Use, and Dissemination by the National Counterterrorism Center 

and Other Agencies of Information in Datasets Containing Non-Terrorism Information (March 2012), 

available at http://www.nctc.gov/docs/NCTC%20Guidelines.pdf.

661 See Charlie Savage, U.S. Relaxes Limits on Use of Data in Terror Analysis, N.Y. TIMES (Mar. 22, 2012).

662 John Malcom, Jessica Zuckerman and Andrew Kloster, New National Counterterrorism Center 

Guidelines Require Strong Oversight, HERITAGE FOUNDATION (Feb. 21, 2013), available at

http://www.heritage.org/research/reports/2013/02/new-national-counterterrorism-center-guidelinesrequire-strong-oversight; Chris Calabrese, The Biggest New Spying Program You’ve Probably Never Heard Of, 

ACLU (July 30, 2012), available at https://www.aclu.org/blog/national-security-technology-andliberty/biggest-new-spying-program-youve-probably-never-heard; Rachel Levinson-Waldman, What the 

Government Does with Americans’ Data, BRENNAN CENTER FOR JUSTICE, at 19-22 (Oct. 2013), available at

http://www.brennancenter.org/publication/what-government-does-americans-data.

663 2008 National Counterterrorism Center Guidelines Redlined with 2012 Changes, ACLU (July 27, 

2012), available at https://www.aclu.org/national-security/2008-national-counterterrorism-centerguidelines-redlined-2012-changes.
196

story in December 2012.664 Later, the ODNI’s privacy office issued an information paper 

describing the civil liberties and privacy protections in the updated guidelines.665

The government’s decision to write the guidelines in unclassified form not only 

supported press and advocacy inquiry, but also served to bring the guidelines to the 

attention of oversight entities, which could then pursue further classified oversight. In fact, 

soon after PCLOB members began substantive work, in December 2012, we sought and 

received one of several in-depth briefings on the guidelines from the NCTC, followed by a 

briefing from the Department of Homeland Security. 

The release of the NCTC guidelines is only one example of the preparation and 

release of key policy documents in unclassified form. The Attorney General Guidelines on 

FBI investigations, which govern not only criminal investigations but also investigations for 

foreign intelligence purposes, are unclassified. The FBI’s massive manual of investigative 

procedures is largely public, covering not only criminal investigations, but also national 

security matters, and describing in great detail the situations in which various investigative 

techniques are used.666 Key criteria for operation of the nation’s airline passenger 

screening system were publicly developed through a notice and comment proceeding,667

and substantial information about the program, including a Privacy Impact Assessment, is 

published online.668

These and other disclosures about key national security programs that involve the 

collection, storage and dissemination of personal information show that it is possible to 

describe practices and policies publicly, even those that have not been otherwise leaked, 

without damage to national security or operational effectiveness. Of course, the targets of 

investigation are secret, and may remain so indefinitely in the case of national security 

investigations. But a very wide range of legal authorities is laid out, along with the criteria 

for exercising them. 

 

664 Julia Angwin, U.S. Terrorism Agency to Tap a Vast Database of Citizens, WALL STREET JOURNAL (Dec. 13, 

2012).

665 Office of the Director of National Intelligence, Civil Liberties and Privacy Office, "Description of Civil 

Liberties and Privacy Protections Incorporated in the Updated NCTC Guidelines" (January 2013), available at

http://www.nctc.gov/docs/CLPO_Information_Paper_on_NCTC_AG_Guidelines_-_1-22-13.pdf. 

666 FBI Domestic Investigations and Operations Guide (DIOG) (2011 Version), available at

http://vault.fbi.gov/FBI%20Domestic%20Investigations%20and%20Operations%20Guide%20%28DIOG%2

9/fbi-domestic-investigations-and-operations-guide-diog-2011-version/.

667 Department of Homeland Security, Transportation Security Administration, Secure Flight Program 

Final Rule, 73 Fed. Reg. 64018 (Oct. 28, 2008), available at http://www.gpo.gov/fdsys/pkg/FR-2008-10-

28/html/E8-25432.htm.

668 Transportation Security Administration, Secure Flight Program, 

http://www.tsa.gov/stakeholders/secure-flight-program.
197

IV. Transparency in the Legislative Process

When Section 215 was adopted in 2001 to authorize applications for FISA court 

orders requiring production of “any tangible things,” there was no mention in the public 

record that it was intended to provide legal justification for the bulk collection of business 

records. (There is also no indication that there was any non-public discussion of using the 

statute in that way, as the bulk collection programs were just beginning when Section 215 

was adopted and those nascent bulk programs were proceeding under different legal 

theories not involving approval of the FISA court). When the statute was revised and 

reauthorized in 2005–2006, there was no also indication on the public record that it would 

provide the legal justification for bulk collection, although by then the existence of bulk 

collection programs was known to some members of Congress. During the 2005-2006 

reauthorization debate, critics of Section 215 speculated that it could be used to acquire 

entire data sets, although none speculated that it could be used to justify ongoing 

collection, and the government’s public statements did not address bulk collection. By the 

time Section 215 was up for renewal in 2011, it was known to some members of Congress 

that the statute was being used to support bulk collection, and the DOJ provided Congress 

with a classified description of the NSA’s telephone and Internet bulk collection

programs.

669 But public references by Senators familiar with the program to “sensitive 

sources and collection methods” and “secret legal interpretations”670 were so guarded that 

there was no public discussion of bulk collection.671

With full respect for the pressure confronting Congress and the executive branch in 

the years after 9/11 and up until this very day, we do not believe that the process 

surrounding the application of Section 215 to bulk collection comported with the kind of 

public debate that best serves the development of policy affecting the rights of 

Americans.672 Even where classified intelligence operations are involved, the “purposes 

 

669 See pages 97 to 99 of this Report.

670 Statement of Senator Ron Wyden re: Patriot Act Reauthorization (May 26, 2011) (“[W]hen 

the American people find out how their government has secretly interpreted the Patriot Act, they will 

be stunned and they will be angry. . . . Members of the public have no access to the executive branch’s 

secret legal interpretations, so they have no idea what their government thinks this law means.”) 

available at http://www.wyden.senate.gov/news/press-releases/in-speech-wyden-says-officialinterpretations-of-patriot-act-must-be-made-public.

671 In an indication of how little information was made available to the public, one close observer of the 

surveillance debates mistakenly concluded in 2011 that there was “fairly persuasive” evidence that Senator 

Wyden was referring to the collection of geolocation data — the one piece of metadata that the government 

was in fact not collecting under the 215 program. See Julian Sanchez, Atlas Bugged: Why the “Secret Law” of 

the Patriot Act is Probably About Location Tracking, CATO AT LIBERTY (May 27, 2011), 

http://www.cato.org/blog/atlas-bugged-why-secret-law-patriot-act-probably-about-location-tracking.

672 Referring generally to the “many legal novelties and legal hurdles that the administration faced after 

9/11,” former Assistant Attorney General Jack Goldsmith concluded, “The administration’s failure to engage 

Congress deprived the country of national debates about the nature of the threat and its proper response that 
198

and framework” of a program for domestic intelligence collection should be debated in 

public.673 Here we are talking specifically about the legislative process and programs that 

are intended to be ongoing; different considerations may apply, for example, when a 

statute is being applied case-by-case to unique fact situations. Also, during the process of 

developing legislation, some hearings and briefings may need to be conducted in secret to 

ensure that policymakers fully understand the intended use of a particular authority. But 

the government should not base an ongoing program affecting the rights of Americans on 

an interpretation of a statute that is not apparent from a natural reading of the text. Either 

the statute should be amended or, if the statute is subject to periodic reauthorization, the 

legal interpretation extending the statute to a new program should be made public before 

the statute is reauthorized. 

In the case of Section 215, the government should have made it publicly clear in the 

reauthorization process that it intended for Section 215 to serve as legal authority to 

collect data in bulk on an ongoing basis. It should have been possible for the government to 

describe criteria for selecting categories of data for acquisition as well as procedures 

around storage and use of such data. It may have been appropriate to withhold the specific 

categories of data (telephony metadata) that the government intended to collect. Certainly, 

once the program was statutorily authorized, it would be appropriate to keep secret the 

names of the telephone carriers subject to the FISC orders. A description of the power 

sought would have avoided the many legal questions now being raised about the 

government’s interpretation of Section 215, such as the scope of the “relevance” standard, 

the use of the statute for ongoing disclosures, and the extent to which bulk collection under 

Section 215 may conflict with other statutes. 

 

would have served an educative and legitimating function regardless of what emerged from the process. The 

go-it-alone strategy minimized the short-term discomforts to the Executive branch of public debate, but at the 

expense of medium-term Executive Branch mistakes. When the Executive Branch forces Congress to 

deliberate, argue, and take a stand, it spreads accountability and minimizes the recriminations and other bad 

effects of the risk taking that the President’s job demands.” See Preserving the Rule of Law in the Fight Against 

Terrorism, Hearing before the Senate Judiciary Committee (Oct. 2, 2007) (statement of Jack Landman 

Goldsmith), available at

http://www.judiciary.senate.gov/hearings/testimony.cfm?id=e655f9e2809e5476862f735da12ecadc&wit_id

=e655f9e2809e5476862f735da12ecadc-1-1.

673 Privacy and Civil Liberties Oversight Board, Transcript of Public Hearing, Consideration of 

Recommendations for Change: The Surveillance Programs Operated Pursuant to Section 215 of the USA 

PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act, 290-93 (Nov. 4, 2013) (testimony 

of Jane Harmon, former Member of Congress and Member of House Armed Services, Homeland Security, and 

Intelligence Committees), available at http://www.pclob.gov/.
199

V. Release of FISC and FISCR Opinions

Since 9/11, and especially since 2004, the FISA court has confronted novel and 

significant legal questions, as the government has brought various programs under the 

FISA system, as the statute itself has been amended, including to add new authorities, and 

as technology and the government’s capabilities have evolved. Consequently, in the past 

ten years the court has issued a substantial body of opinions on statutory and 

constitutional questions.674 These opinions discuss and approve the underlying legal 

rationale for government activities and address the implications of compliance issues and 

other matters raised by the sometimes unique conditions judges are imposing on the 

operation of approved programs. In short, these opinions describe (often in very accessible 

language) the scope of the government’s authority and the ways in which that authority is 

implemented in contexts affecting the rights of Americans. There is thus public interest in 

the disclosure of these opinions.

FISA requires that “The record of proceedings under this chapter, including 

applications made and orders granted, shall be maintained under security measures 

established by the Chief Justice in consultation with the Attorney General and the Director 

of National Intelligence.”675 Until recently, with two exceptions from 1981 and 2002, FISC 

opinions were written in a totally classified fashion, without an eye to publication in any 

form, with facts and law tightly interwoven. The recent release of opinions regarding 

already leaked programs offers, in itself, little insight into how to maximize disclosure of 

legal opinions. 

Nevertheless, there is precedent for public disclosure of opinions on sensitive 

intelligence matters. Early in the history of FISA, a FISC opinion was written in unclassified 

form on a question of law (whether the court had the authority to issue orders approving 

physical searches).676 Since 9/11, two opinions of the FISCR were released at the time they 

were issued, with relatively few redactions.677 Regular Article III courts have been 

 

674 If our recommendations on creation of a Special Advocate are implemented, the number of opinions 

may increase at an even greater rate. And while the FISCR has heard relatively few cases, that too would 

change if our recommendations are implemented for creating a path for appellate review of FISC decisions.

675 50 U.S.C. § 1803(c). 

676 In re Application of the United States for an Order Authorizing the Physical Search of Nonresidential 

Premises and Personal Property, slip op. (FISA Ct. June 11, 1981) (in case preceding enactment of amendment 

to FISA providing explicit authority for physical searches, court found that it lacked such authority). See also

In Re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp.2d 611 (FISA Ct. 2002) 

(addresses government request to permit greater sharing of information between law enforcement and 

intelligence personnel in the aftermath of September 11th), rev’d sub nom. In Re Sealed Case 310 F.3d 717 

(FISA Ct. Rev. 2002). 

677 In Re Sealed Case 310 F.3d 717 (FISA Ct. Rev. 2002), and In Re Directives, 551 F.3d 1004 (FISA Ct. Rev. 

2008). Based upon the best information available to the Board, these are the only two cases decided by the 

FISCR to date.
200

grappling with secrecy issues in opinions on habeas petitions by Guantanamo detainees 

and in other matters. Combining the best of the methods applied by judges so far, 

redactions can be grouped together so that the rest of the text remains uninterrupted and 

comprehensible, the significance of the redacted information to the holding could be 

explained, and unclassified summaries of the redacted paragraphs could be added.678

In recent months, we are told that the FISC judges have begun drafting their 

opinions with the expectation that they may be declassified and released in redacted 

form.

679 We believe that, as a general rule, FISA court judges can write their opinions in 

such a way as to separate specific facts peculiar to the case at hand from broader legal 

analyses. This trend is one that we view as a significant step toward greater transparency 

not only with regard to already disclosed programs, but also with respect to other matters 

that may arise. Prospectively, we encourage the FISA court to write opinions with an eye to 

declassification. We also believe that there is significant value in producing declassified 

versions of earlier opinions. We realize that the process of redacting opinions written 

during a period of presumed secrecy will be more difficult and will burden individuals with 

other pressing duties, but we believe that it is appropriate to make the effort where those 

opinions and orders complete the historical picture of the development of legal doctrine 

regarding matters within the jurisdiction of the FISC.

We therefore recommend that the government undertake a classification review of 

all significant FISC opinions and orders involving novel interpretations of law, beginning 

with opinions describing the legal theories relied upon for widespread collection of 

metadata from Americans not suspected of terrorist affiliations, to be followed by opinions 

involving serious compliance issues. 

We note one other transparency matter concerning the FISC. Should the 

government adopt our recommendation for a Special Advocate in the FISC, the nature of 

that advocate’s role must be transparent to be effective. The FISC should publicly disclose 

any rules the court adopts governing the advocate’s participation in proceedings. In 

addition, the Attorney General should regularly and publicly report statistics on the 

frequency of Special Advocate participation including the number of times Special 

Advocates have sought review of FISC decisions in the FISCR and the U.S. Supreme Court.

 

678 Michael A. Sall, Classified Opinions: Habeas at Guantanamo and the Creation of Secret Law, 101 GEO. L.J. 

1147, 1167 (citing, inter alia, Parhat v. Gates, 532 F.3d 834, 844 (D.C. Cir. 2008)).

679 For example, Judge Eagan’s August 29, 2013 opinion and order reauthorizing the Section 215 bulk 

telephony metadata program were released in redacted form less than one month after issuance. The 

declassified version of the opinion as well as the accompanying order containing Judge Eagan’s legal analysis 

includes very few redactions. See Amended Memorandum Opinion, In re Application of the Federal Bureau of 

Investigation for an Order Requiring the Production of Tangible Things, No. BR 13-109 (FISA Ct. Aug. 29, 2013).
201

VI. Increased Public Reporting

One important way to understand and assess any government program is 

numerically — to categorize its critical elements and count them. Periodic public reporting 

on surveillance programs is a valuable tool promoting accountability and public 

understanding. When the government was seeking reauthorization of the Patriot Act, it 

publicly released detailed numerical information about the use of sunsetting authorities as 

a way of reassuring Congress and the public that the authorities were being used in a 

targeted and limited fashion.680 When FISA was first adopted in 1978, it included a 

provision requiring the Attorney General every year to transmit to Congress a report 

setting forth the total number of applications made for FISA surveillance and the total 

number of such orders either granted, modified, or denied.681 The reports, while skeletal, 

have never been classified.682 Since 1978, Congress amended FISA to require the 

government to provide to Congress additional information, including a breakdown of the 

number of persons targeted under the statute’s various authorities.683 These more detailed

reports, however, are classified and the granularity of public reporting remains very 

limited. 

We recommend that the government should also increase the level of detail in its 

unclassified reporting to Congress and the public regarding surveillance programs. It is 

important to ensure that any public reporting does not aid our adversaries. However, we 

believe that publication of additional numerical information on the frequency with which 

various surveillance authorities are being used would be possible without allowing 

terrorists to improve their tradecraft. To ensure that such information is meaningful, the 

government would have to distinguish between particularized programs and those 

involving bulk collection. In the case of targeted programs, the government should disclose 

how many orders have been issued and how many individuals have been targeted.

 

680 See, e.g., Hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the House 

Judiciary Committee, 109th Cong. at 8-9 (April 28, 2005) (statement of Kenneth Wainstein) (“As of March 30, 

2005, federal judges have reviewed and granted the Department’s request for a section 215 order 35 times. 

To date, the provision has only been used to obtain driver’s license records, public accommodations records, 

apartment leasing records, credit card records, and subscriber information, such as names and addresses, for 

telephone numbers captured through court-authorized pen registers and trap-and-trace orders (a pen 

register records the numbers a telephone dials and a trap-and-trace device records the numbers from which 

it receives calls). The Department has not requested a section 215 order to obtain library or bookstore 

records, medical records, or gun sale records.”), available at 

http://www.justice.gov/archive/ll/subs/testimony/042805-usa-wainstein.pdf.

681 Pub. L. 95-511, 92 Stat. 1783, 1795 (1978) (codified at 50 U.S.C. § 1807).

682 For a collection of these reports, see the Federation of American Scientists’ website: 

https://www.fas.org/irp/agency/doj/fisa/#rept.

683 See 50 U.S.C. §§ 1862, 1871.
202

In recent years, U.S. companies have begun publishing reports showing, country by 

country, how many government demands they receive for disclosure of user data (and how 

often they receive demands for takedown of content.) The companies find these reports 

useful in building and maintaining customer trust. However, the secrecy of FISA orders and 

National Security Letters limits the ability of private sector entities to disclose to their 

customers the scope of government surveillance or data disclosure demands. The United 

States is one of few countries that permit any publication of figures on government 

surveillance, but the unique position of the United States in the global communications 

infrastructure puts unique pressure on companies headquartered here. Some Internet 

service providers have sought permission to voluntarily disclose statistics regarding the 

number of government FISA requests they have received and the number of their 

customers affected.684 Government officials have opposed these requests in part on the 

grounds that such statistics would reveal government capabilities and could indicate to 

would-be terrorists which providers to favor and which to avoid. The government has 

indicated, however, that it may be possible to provide aggregate statistics in a way that 

does not jeopardize national security in this fashion. We urge the government to work with 

the companies to reach agreement on standards allowing reasonable disclosures of 

aggregate statistics that would be meaningful without revealing sensitive government 

capabilities or tactics. 

Beyond public reporting, FISA requires the Attorney General to “fully inform” the 

Senate and House Intelligence and Judiciary Committees regarding the government’s 

activities under certain sections of FISA including Section 215.685 FISA also requires the 

government to provide the congressional committees with copies of “all decisions, orders, 

or opinions of the FISC or FISC that include significant construction or interpretation” of 

the provisions of FISA. These two reporting requirements facilitate congressional 

oversight. The Board urges the government to extend this complete reporting to the PCLOB 

as well, to facilitate the Board’s oversight role.

 

684 Google, Inc., Microsoft Corporation, Yahoo! Inc., Facebook, Inc., and LinkedIn Corporation have filed 

declaratory judgment actions in the FISC seeking permission to disclose such statistics, and additional 

providers have filed motions seeking permission to participate in the cases as friends of the court. The FISC 

has created a public docket of these filings. See FISA Ct., Nos. Misc. 13-03, Misc. 13-04, Misc. 13-05, Misc. 

13-06, & Misc. 13-07, available at http://www.uscourts.gov/uscourts/courts/fisc/index.html.

685 See 50 U.S.C. §§ 1808, 1846, 1862, 1871, 1881f. Reporting requirements under Sections 1808 and 

1862 do not include the House Judiciary Committee, but the other sections include all four committees.
203

VII. Recommendations to Promote Transparency

Recommendation 6. To the maximum extent consistent with national security, 

the government should create and release with minimal redactions declassified 

versions of new decisions, orders and opinions by the FISC and FISCR in cases 

involving novel interpretations of FISA or other significant questions of law, 

technology or compliance.

FISC judges should continue their recent practice of drafting opinions in cases 

involving novel issues and other significant decisions in the expectation that declassified 

versions will be released to the public. This practice has facilitated declassification review. 

The government should promptly create and release declassified versions of these FISC 

opinions.

Recommendation 7. Regarding previously written opinions, the government 

should perform a declassification review of decisions, orders and opinions by 

the FISC and FISCR that have not yet been released to the public and that involve 

novel interpretations of FISA or other significant questions of law, technology or 

compliance. 

Although it may be more difficult to declassify older FISC opinions drafted without 

expectation of public release, the release of such older opinions is still important to 

facilitate public understanding of the development of the law under FISA. The government 

should create and release declassified versions of older opinions in novel or significant 

cases to the greatest extent possible consistent with protection of national security. This 

should cover programs that have been discontinued, where the legal interpretations 

justifying such programs have ongoing relevance. The Board acknowledges the cumulative 

burden of these transparency recommendations, especially as the burden of review for 

declassification may fall on the same individuals who are responsible for preparing new 

FISA applications, overseeing compliance with existing orders, and carrying out other 

duties. The Board urges the government to develop and announce some prioritization plan 

or approach. We recommend beginning with opinions describing the legal theories relied 

upon for widespread collection of metadata from Americans not suspected of terrorist 

affiliations, to be followed by opinions involving serious compliance issues.

Recommendation 8. The Attorney General should regularly and publicly report 

information regarding the operation of the Special Advocate program 

recommended by the Board. This should include statistics on the frequency and 

nature of Special Advocate participation in FISC and FISCR proceedings.

These reports should include statistics showing the number of cases in which a 

Special Advocate participated, as well as the number of cases identified by the government 

as raising a novel or significant issue, but in which the judge declined to invite Special 
204

Advocate participation. The reports should also indicate the extent to which FISC decisions 

have been subject to review in the FISCR and the frequency with which Special Advocate 

requests for FISCR review have been granted. The Attorney General can make such reports 

without the need for a congressional directive. However, Congress might amend FISA’s 

reporting requirement to require the Attorney General to report in unclassified form on the 

number of matters in which the government notified the court of a novel issue under Rule 

11 and, in such cases, the number of times the FISC invited Special Advocate 

participation.686 In addition to providing such regular public reports, the Attorney General 

should include statistics and information on operation of the Special Advocate as part of 

the Attorney General’s obligation under 50 U.S.C. § 1871(a)(5) to submit to congressional

committees copies of all decisions or opinions of the FISC that include significant 

construction or interpretation of the provisions of FISA. 

The FISC should also make public any rules adopted by the FISC governing the 

Special Advocate’s participation in court proceedings.

Recommendation 9. The government should work with Internet service 

providers and other companies that regularly receive FISA production orders to 

develop rules permitting the companies to voluntarily disclose certain 

statistical information. In addition, the government should publicly disclose 

more detailed statistics to provide a more complete picture of government 

surveillance operations.

The Board understands that the government has engaged in discussions with 

certain communications service providers that are seeking permission to publish statistics 

about the number of government surveillance and data disclosure requests they receive 

per year. The Board urges the government to pursue these discussions to determine the 

maximum amount of information that could be published in a way that is consistent with 

protection of national security. In addition, the government should itself release annual 

reports showing in more detail the nature and scope of FISA surveillance for each year. The 

government disclosures showing the number of orders or demands directed to private 

entities could be provided in numerical ranges and aggregated for all providers, but they 

should be separated by the type of FISA authority involved. Thus, for example, all Section 

 

686 Since FISA first came into effect, the government has filed in unclassified form the report required 

under Section 107 of the Act covering certain annual statistics regarding the number of FISA applications and 

orders. 50 U.S.C. § 1807. Over the years, those reports have become somewhat longer with the addition of 

further reporting requirements. Compare the report for 1979, 

https://www.fas.org/irp/agency/doj/fisa/1979rept.html, with the report for 2012, 

https://www.fas.org/irp/agency/doj/fisa/2012rept.pdf. Section 502 of the Act, 18 U.S.C. § 1862, regarding 

business records, specifically requires unclassified reporting of these statistics, and Section 118 of the USA 

PATRIOT Improvement and Reauthorization Act, Pub. L. 109-177, 120 Stat. 192, 217 (2006), requires 

unclassified reports on use of National Security Letter authorities. 
205

215 requests for all companies could be aggregated, but Section 215 statistics would be 

reported separately from requests under other FISA authorities.

The Board recognizes that company-by-company reporting presents certain 

difficulties, as does reporting of the number of customers affected. On the one hand, so long 

as one FISA order can encompass multiple accounts, a simple statement of the number of 

demands received will not indicate how many accounts or customers are affected. On the 

other hand, if a company is allowed to report the number of customers affected (even in 

ranges), if its numbers suddenly jump from the range of hundreds or thousands of 

customers affected to millions or hundreds of millions, that would immediately signal that 

that particular company has received a bulk collection demand, a fact that may be 

operationally sensitive. At the very least, both government and companies need to agree on 

the rules for reporting numbers of customers affected. Perhaps, the content versus noncontent distinction is relevant: Companies could be permitted to disclose the number of 

customers or accounts affected by FISA acquisitions of content, but not by bulk collections 

of metadata.687

The problem could be further mitigated if the Board’s recommendation regarding 

transparency of bulk collection authorities is adopted. The government could indicate how 

many orders for bulk collection it has obtained, and under which legal authority, without 

disclosing which companies have received bulk collection orders. Otherwise, if a statute 

such as Section 215 continues to be used as the basis both for individualized collection and 

bulk collection, the mere number of Section 215 orders could be misleading. Despite the 

attention that has been given to numerical reporting, mere numbers can be misleading. A 

key thrust of the Board’s recommendations is that the government should first and 

foremost explain, to the extent possible, what it is doing and should contextualize the 

numbers that it issues.

Recommendation 10. The Attorney General should fully inform the PCLOB of the 

government’s activities under FISA and provide the PCLOB with copies of the 

detailed reports submitted under FISA to the specified committees of Congress. 

This should include providing the PCLOB with copies of the FISC decisions 

required to be produced under Section 601(a)(5). 

Recommendation 11. The Board urges the government to begin developing 

principles and criteria for transparency.

 

687 Our suggestions here focus on FISA authorities and are also relevant to National Security Letters. 

Our recommendations do not address reporting of activities under Executive Order 12333. It has become 

clear in recent months that E.O. 12333 collection poses important new questions in the age of globalized 

communications networks, but the Board has not yet attempted to address those issues.
206

The Board has offered some initial suggestions about how lines can be drawn in the 

future around the disclosure of legal authorities. The Board urges the Administration to 

commence the process of articulating principles and criteria for deciding what must be 

kept secret and what can be released as to existing and future programs that affect the 

American public.

Recommendation 12. The scope of surveillance authorities affecting Americans 

should be public.

In particular, the Administration should develop principles and criteria for the 

public articulation of the legal authorities under which it conducts surveillance affecting 

Americans. If the text of the statute itself is not sufficient to inform the public of the scope 

of asserted government authority, then the key elements of the legal opinion or other 

document describing the government’s legal analysis should be made public so there can 

be a free and open debate regarding the law’s scope. This includes both original enactments 

such as 215’s revisions and subsequent reauthorizations. 

The Board’s recommendation distinguishes between “the purposes and framework” 

of surveillance authorities and factual information specific to individual persons or 

operations. While sensitive operational details regarding the conduct of government 

surveillance programs should remain classified, and while legal interpretations of the 

application of a statute in a particular case may also be secret so long as the use of that 

technique in a particular case is secret, the government’s interpretations of statutes that 

provide the basis for ongoing surveillance programs affecting Americans can and should be 

made public. This includes intended uses of broadly worded authorities at the time of 

enactment as well as post-enactment novel interpretations of laws already on the books.
207

Part 10:

CONCLUSION

Our nation is protected by men and women devoted to the rule of law. In talking to 

dozens of career employees throughout the intelligence agencies, we found widespread 

dedication to the Constitution and eagerness to comply with whatever rules are laid down 

by Congress and the judiciary. We are grateful to the employees of the intelligence 

community for their cooperation with this study, and for working tirelessly to keep us safe. 

None of the comments in this Report should be read in any way as a criticism of their 

integrity. We hope that this Report is viewed as a contribution to our shared mission of 

protecting America from terrorism while also preserving “the precious liberties that are 

vital to our way of life.”688

 

688 National Security Intelligence Reform Act, § 1061(b)(1), as amended by Pub. L. 110-53, section 801 

(2007) (codified at 42 U.S.C. § 2000ee(b)).
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ANNEX A

Separate Statement by Board Member Rachel Brand

I commend the Board and our tiny staff for putting together this comprehensive 

Report while simultaneously struggling to establish our still-infant agency. Although I 

disagree with much of the Report’s discussion and some of its recommendations, this may 

be the most thorough description and analysis of the Section 215 bulk telephony metadata 

collection program (“Section 215 program”) that has been published to date. 

I concur in most of the Board’s recommendations, and I am pleased that we were 

able to achieve unanimity on so many of them. However, I write separately to briefly note 

several points on which I disagree with the Report. Most importantly, I dissent from the 

Board’s recommendation to shut down the Section 215 program without establishing an 

adequate alternative. 

Where I agree with the Board’s Report

I join the Board’s proposal to create a process for appointing an independent 

advocate to provide views to the Foreign Intelligence Surveillance Court (“FISC”) in 

important or novel matters. (Recommendations 3-5.) Although I believe the FISC already 

operates with the same integrity and independence as other federal courts, I agree with the 

Board that some involvement by an independent third party will bolster public confidence 

in the FISC’s integrity and strengthen its important role. 

Of course, the devil is in the details. Meddling in a system that already works well is 

risky. Any proposal to change the FISC’s operations must, among other things, ensure that 

the FISC can continue to operate very quickly; not jeopardize the security of the sensitive 

materials reviewed by the court; provide adequate resources to account for an increased 

burden on the court; and allow the FISC’s judges to retain discretion and control over the 

participation of an independent advocate in any given case. I believe this Board’s 

recommendations account for all of these considerations better than any of the other 

proposals that have been offered. 

I also sign on to most of the Board’s recommendations to provide greater 

transparency about the government’s counterterrorism programs. (Recommendations 

6-11.) I agree with the Board that additional transparency, where possible, promotes 

public confidence in our national security agencies. However, it is important to note that 

the Board recommends that transparency measures be adopted to the extent consistent 

with national security. It is this qualification that enables me to sign on to the core of those 

recommendations. I suspect I have a different view than some of my colleagues about how 
209

to implement each of the recommendations, but those details will be worked out in the 

future. 

I do not sign on to the Board’s discussion concerning Recommendation 12, because I 

do not believe that an intelligence program or legal justification for it must necessarily be 

known to the public to be legitimate or lawful. 

Finally, I join the Board’s recommendations for immediately modifying the Section 

215 program (Recommendation 2) because I believe these changes will ameliorate privacy 

concerns while preserving the operational value of the program.

Where I disagree with the Board’s Report

I cannot sign on to the substance of much of the Board’s analysis. I am concerned 

that the Report gives insufficient weight to the need for a proactive approach to combating 

terrorism, and I hope that the Report will not contribute to what has aptly been described 

as cycles of “timidity and aggression” in the government’s approach to national security.689 

After September 11, 2001, the public demanded to know why the government had not 

stopped those attacks. Fingers were pointed in every direction, and civil liberties and 

privacy considerations took a backseat in the public debate immediately following the 

attacks. Of course, the legal structure under which the agencies operated prior to 9/11 had 

been put into place in the 1970s as a reaction to the Church Committee’s revelations of 

prior excesses and abuses by the Intelligence Community. Since the recent leaks of 

classified programs, the pendulum seems to be swinging sharply back in that direction. But 

I have no doubt that if there is another large-scale terrorist attack against the United States, 

the public will engage in recriminations against the Intelligence Community for failure to 

prevent it. These swings of the pendulum, though they may be an inevitable result of 

human nature, are an unfortunate way to craft national security policy, and they do a 

disservice to the men and women dedicated to keeping us safe from terrorism. 

The primary value that this bipartisan, independent Board can provide is a 

reasoned, balanced approach, taking into account (as our statute requires) both civil 

liberties and national security interests. We should not overreact to the crisis or 

unauthorized disclosure du jour, but take a longer view.

With these background considerations in mind, I turn to my reasons for dissenting 

from the Board’s recommendation to shut down the Section 215 program.

The Board concludes that the Section 215 program is not legally authorized. I cannot 

join the Board’s analysis or conclusion on this point. 

 

689 See, e.g., JACK GOLDSMITH, THE TERROR PRESIDENCY, LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION

163-64 (2007). 
210

The statutory question—whether the language of Section 215 authorizes the 

telephony bulk metadata program—is a difficult one. But the government’s interpretation 

of the statute is at least a reasonable reading, made in good faith by numerous officials in 

two Administrations of different parties who take seriously their responsibility to protect 

the American people from terrorism consistent with the rule of law. Moreover, it has been 

upheld by many Article III judges, including over a dozen FISC judges and Judge Pauley in a 

thorough opinion in a regular, public proceeding in U.S. District Court.690

In light of this history, I do not believe this is a legal question on which the Board 

can meaningfully contribute. If we were addressing this as a matter of first impression, 

advising the government on whether to launch the program in the first place, we would 

need to grapple with this question of statutory construction. But we do not approach this 

question as a matter of first impression. It has been extensively briefed and considered by 

multiple courts over the course of several years. Some of those cases are ongoing. This legal

question will be resolved by the courts, not by this Board, which does not have the benefit 

of traditional adversarial legal briefing and is not particularly well-suited to conducting de 

novo review of long-standing statutory interpretations. We are much better equipped to 

assess whether this program is sound as a policy matter and whether changes could be 

made to better protect Americans’ privacy and civil liberties while also protecting national

security. 

Because the Board also concludes that the program should be shut down as a policy 

matter, it seems to me unnecessary and gratuitous for the Board to effectively declare that 

government officials and others have been operating this program unlawfully for years. I 

am concerned about the detrimental effect this superfluous second-guessing can have on 

our national security agencies and their staff. It not only undermines national security by 

contributing to the unfortunate “cycles of timidity and aggression” that I mentioned earlier, 

but is also unfair, demoralizing, and potentially legally harmful to the individuals who carry 

out these programs. 

Turning to the constitutionality of the Section 215 program, I agree with the Board’s 

ultimate conclusion that the program is constitutional under existing Supreme Court 

caselaw.691 The Board appropriately states that government officials are entitled to rely on 

current law when taking action. But in speculating at great length about what might be the 

future trajectory of Fourth Amendment caselaw, it implicitly criticizes the government for 

not predicting those possible changes when deciding whether to operate the program. 

 

690 See Memorandum & Order, ACLU v. Clapper, No. 13-3994 (S.D.N.Y. Dec. 27, 2013). 

691 One federal judge recently reached the opposite conclusion, holding that the Section 215 program is 

likely unconstitutional. See Memorandum Opinion, Klayman v. Obama, No. 13-0851 (D.D.C. Dec. 16, 2013). 

This demonstrates that these are difficult legal questions that ultimately will be resolved by the courts. 
211

Perhaps the Supreme Court will amend its views on the third-party doctrine or other 

aspects of Fourth Amendment jurisprudence in future cases. But that is beside the point in 

a Report addressing whether the government’s actions were legal at the time they were 

taken and now. Surely government officials should be able to rely on valid Supreme Court 

precedent without being second-guessed years later by a Board musing on what legal 

developments might happen in the future.

Of course, the government must seriously consider whether it should take actions 

that intrude on privacy even if it can take them as a legal matter. Whether the Section 215 

program should continue as a matter of good policy is a question squarely within the 

Board’s core mandate and one that courts have not addressed and cannot resolve. 

However, I do not agree with the Board’s conclusion that the program should be shut 

down.

Whether the program should continue boils down to whether its potential intrusion 

on privacy interests is outweighed by its importance to protecting national security. 

Starting with the privacy question, on the one hand, any collection program on this 

scale gives me pause. As the Board discusses, metadata can be revealing, especially in the 

aggregate (though I do not agree with the Board’s statement that metadata may be even 

“more” revealing than contents). Whenever the government possesses large amounts of 

information, it could theoretically be used for dangerous purposes in the wrong hands 

without adequate oversight. Even if there is no actual privacy violation when information is 

collected but never viewed, accessed, analyzed, or disseminated in any way, as is true of the 

overwhelming majority of data collected under the Section 215 program, collection and 

retention of this much data about American citizens’ communications creates at least a risk 

of a serious privacy intrusion.

This is why I join the Board’s recommendations for immediate modifications to the 

program (Recommendation 2), including eliminating the third “hop” and reducing the 

length of time the data is held. Based in part on the Board’s lengthy discussions with 

government officials, I believe these changes would increase privacy protections without 

sacrificing the operational value of the program. 

On the other hand, the government does not collect the content of any 

communication under this program. It does not collect any personally identifying 

information associated with the calls. And it does not collect cell site information that could 

closely pinpoint the location from which a cell phone call was made. The program is 

literally a system of numbers with no names attached to any of them. As such, it does not 

sweep in the most sensitive and revealing information about telephone communications. 

This seems to have gotten lost in the public debate. 
212

In addition, the program operates within strict safeguards and limitations. The 

Board’s Report describes these procedures, but it bears repeating just how hard it is for the 

government to make any use of the data collected under this program. For example, before 

even looking at what the database holds on a particular phone number, an NSA analyst 

must first be able to produce some evidence—enough to establish “reasonable, articulable 

suspicion” or “RAS”—that that particular phone number is connected to a specific terrorist 

group listed in the FISC’s order. Only a handful of trained analysts are authorized do this. 

Before typing the phone number into a search field, the analyst must document the “RAS” 

determination in writing. And if the results of the query reveal a pattern of calls that seems 

worth investigating further, the analyst must jump through a series of additional hoops 

before gathering more information about the communications or distributing that 

information to other agencies. As a result, only an infinitesimal percentage of the records

collected are ever viewed by any human being, much less used for any further purpose. 692

With the safeguards already in place and the additional limitations this Board 

recommends, I believe the actual intrusion on privacy interests will be small.

On the other side of the equation is the national security value of the program. The 

Board concludes that the program has little, if any, benefit. I cannot join this conclusion. 

There is no easy way to calculate the value of this program. But the test for whether 

the program’s potential benefits justify its continuation cannot be simply whether it has 

already been the key factor in thwarting a previously unknown terrorist attack. Assessing 

the benefit of a preventive program such as this one requires a longer-term view. 

The overwhelming majority of the data collected under this program remains 

untouched, unviewed, and unanalyzed until its destruction. But its immediate availability if 

it is needed is the program’s primary benefit. Its usefulness may not be fully realized until 

we face another large-scale terrorist plot against the United States or our citizens abroad. 

But if that happens, analysts’ ability to very quickly scan historical records from multiple 

service providers to establish connections (or avoid wasting precious time on futile leads) 

could be critical in thwarting the plot. 

Evidence suggests that if the data from the Section 215 program had been available 

prior to the attacks of September 11, 2001, it could have been instrumental in preventing 

 

692 As the Board discusses, there have been lapses in compliance with the program’s limitations. Most of 

these violations have been minor and technical. A few have been significant, though apparently 

unintentional. Compliance problems are always a matter of concern and demonstrate the need for robust 

oversight. But it is important to remember that the lapses the Board mentions came to light only because the 

government self-reported violations to the FISC. Those problems were then corrected, under the supervision 

of the FISC. And these corrective measures and self-reporting occurred before these programs were publicly 

disclosed. That is, they were identified and fixed not because of the scrutiny brought about by an unlawful 

leak of classified information, but because existing oversight mechanisms worked. 
213

those attacks.693 The clear implication is that this data could help the government thwart a 

future attack. Considering this, I cannot recommend shutting down the program without an 

adequate alternative in place, especially in light of what I view to be the relatively small 

actual intrusion on privacy interests.

That said, if an adequate alternative that imposes less risk of privacy intrusions can 

be identified, the government should adopt it. The President appears to believe that the 

government can craft an alternative that retains the important intelligence capabilities of 

the program but reduces privacy concerns by storing the data outside the government. 

Although I expect this Board to have a role in crafting any such alternative and I look 

forward to those discussions, I doubt I could support a solution that transfers 

responsibility for the data to telephone service providers. This approach would make sense 

only if it both served as an effective alternative and assuaged privacy concerns, but I am 

skeptical it would do either. Because service providers are not required to retain all 

telephony metadata for any particular length of time, asking the service providers to hold 

the data could not be an effective alternative without legislatively mandating data 

retention. But data retention could increase privacy concerns by making the data available 

for a wide range of purposes other than national security, and would raise a host of 

questions about the legal status and handling of the data and the role and liabilities of the 

providers holding it. In my view, it would be wiser to leave the program as it is with the 

NSA than to transfer it to a third party.

Whatever happens to the Section 215 program in the short term, the government 

should frequently assess whether it continues to provide the potential benefits it is 

currently believed to have, including whether the incremental benefit provided by the 

program is eroded by the development of additional investigative tools. This process of reevaluation should not consist merely of ad hoc conversations among individuals involved 

in the programs, but should be formalized, conducted at regular intervals with involvement 

by this Board, approved by officials at the highest levels of the Executive Branch, and 

briefed to the Intelligence and Judiciary Committees. I look forward to working with the 

intelligence agencies in conducting this analysis.

 

693 See, e.g., Oversight of the Federal Bureau of Investigation: Hearing before the H. Comm. on the Judiciary, 

113th Cong. 25-26 (2013) (statement of Robert S. Mueller III, Director, Federal Bureau of Investigation) 

(testifying that if the data from the Section 215 program had been available to investigators before 9/11, it 

would have provided an “opportunity” to prevent those attacks); Decl. of Teresa H. Shea, Signals Intelligence 

Director, Nat’l Sec. Agency, ¶ 35, Dkt. 63, in Am. Civil Liberties Union v. Clapper, supra note 2; Michael Morell, 

Correcting the Record on the NSA Review, WASH. POST, Dec. 27, 2013 (had data from the Section 215 program 

been available at the time, “it would likely have prevented 9/11”). 
214

ANNEX B

Separate Statement by Board Member Elisebeth Collins Cook

I appreciate the thorough work of my colleagues, as well as the staff, and agree with 

almost all of the recommendations of the Report. I think it bodes well for the future 

effectiveness of the Board that we are virtually unanimous as to the policy-based 

recommendations reflected in the Report, and I urge that serious consideration be given to 

each of recommendations two through eleven. I agree that to date the Executive Branch has 

failed to demonstrate that the program, as currently designed, justifies its potential risks to 

privacy, and for that reason I join the recommendations to immediately modify its 

operation. I also agree with the Board that modifications to the operations of the Foreign 

Intelligence Surveillance Court (“FISC”) and an increased emphasis on transparency are 

warranted—to the extent such changes are implemented in a way that would not harm our 

national security efforts. 

I must part ways with the Report, however, as to several points. First, although I 

believe the Section 215 program should be modified, I do not believe it lacks statutory 

authorization or must be shut down. Second, I do not agree with the Board’s constitutional 

analysis of the program, as it is concerned primarily with potential evolution in the law, 

and the potential risks from programs that do not exist. Third, I write separately to

emphasize that our transparency and FISC recommendations must be implemented in a 

way that is fully cognizant of their potential impact on national security. Finally, I disagree 

with the Board’s analysis of the efficacy of the program. 

Fundamentally, I believe that the Board has erred in its approach to this program, 

which has been (a) authorized by no fewer than fifteen Article III judges, (b) subject to 

extensive Executive branch oversight, and (c) appropriately briefed to Congress. The Board 

has been unanimous that as a policy matter the Program can and should be modified 

prospectively, including by limiting the analysis the National Security Agency (“NSA”) could 

do with the records and the amount of time NSA could keep the records. The Board has 

nonetheless engaged in a lengthy and time-consuming retrospective legal analysis of the 

Program prior to issuing those recommendations. I am concerned that this type of 

backward-looking analysis, undertaken years after the fact, will impact the willingness and 

ability of our Intelligence Community to take the proactive, preventative measures that 

today’s threats require. And there is no doubt that should the Intelligence Community fail 

to take those proactive, preventative measures, it will be blamed in the event of an 

attack.694

 

694 By the same token, having undertaken this legal analysis, I do not understand the Board’s apparent 

recommendation that the program it considers unauthorized continue for some interim period of time.
215

First, based on my own review of the statutory authorization, I conclude that the 

Section 215 program fits within a permissible reading of the Foreign Intelligence 

Surveillance Act business records provision.695 I am not persuaded that the reading of the 

statute advanced by the government and accepted by the Foreign Intelligence Surveillance 

Court696 and Judge Pauley of the United States District Court for the Southern District of 

New York697 is the only reading of Section 215, but I am persuaded that it is a reasonable 

and permissible one. Perhaps as important, I think the program itself represented a good 

faith effort to subject a potentially controversial program to both judicial and legislative 

oversight and should be commended. Moreover, the program has been conducted 

pursuant to extensive safeguards and oversight. When mistakes were discovered (and 

mistakes will occur at any organization the size of the National Security Agency), they were 

self-reported to the court and briefed to appropriate congressional committees; corrective 

measures were implemented, and the program reauthorized by the FISC.698 

Second, the Board has engaged in an extensive discussion of emerging concepts of 

Fourth Amendment jurisprudence, none of which I join. Our conclusion that the program 

does not violate the Fourth Amendment is unanimous, as it should be: Smith v. Maryland is 

the law of the land.699 The government is entitled to rely on that decision, and the judges of 

the FISC (and our federal district and circuit courts) are required to do so, unless and until 

it is reversed. Analysis of whether, when, or how the Supreme Court may revisit that 

decision and its application is inherently speculative and unnecessary to the Board’s 

report. 

Nor do I join the Board’s First Amendment analysis (which also informs the 

balancing/policy section). The First Amendment implications the Board finds compelling 

arise not from the Section 215 program but from perceived risks from a potential program 

that does not exist. Although the Board focuses on the “complete” pictures the NSA could 

paint of each and every American in concluding that it has a significant chilling effect, that 

is not an accurate description of the Section 215 program. The information the NSA 

receives does not include the identity of the subscribers. As the Board’s Report 

acknowledges, a number is paired with its subscriber information (in other words, 

 

695 See Pub. L. No. 107-56, § 215, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. § 1861).

696 See, e.g., Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things, No. BR 06‐05 (FISA Ct. May 24, 2006); Amended Memorandum Opinion, In re 

Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, No. 

BR 13-109 (FISA Ct. Aug. 29, 2013).

697 See Memorandum & Order, ACLU v. Clapper, No. 13-3994 (S.D.N.Y. Dec. 27, 2013). 

698 See, e.g., Primary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring 

the Production of Tangible Things, No. BR 09-13 (FISA Ct. Sept. 3, 2009).

699 Smith v. Maryland, 442 U.S. 735 (1979).
216

information that would allow the NSA or other agency to identify the person associated 

with the number) only after a determination is made that there is a reasonable, articulable 

suspicion that a number queried through the database is associated with one of the 

terrorist organizations identified in the FISC’s orders. For a telephone number reasonably 

believed to be used by a U.S. person, the reasonable articulable suspicion standard cannot 

be met solely on the basis of activities protected by the First Amendment. Any investigative 

steps related to that number can be taken only after a determination that the number 

associated with its subscriber information has potential counterterrorism value. There is 

no disagreement that this process is applied to only an extraordinarily small percentage of 

the numbers in the database, yet the Board Report’s balancing/policy and First 

Amendment analyses proceed as if each and every number of every American is 

systematically paired with its subscriber information and analyzed in great detail. 

In addition, the Board nowhere meaningfully grapples with two key questions. One, 

what is the marginal constitutional and policy impact of the Section 215 program, 

particularly in view of the Board’s assertion that essentially everything the Section 215 

program is designed to accomplish can be accomplished through other existing national 

security and law enforcement tools? Two, is there a difference as a policy and 

constitutional matter between an order or program that is designed by its very terms to 

force disclosure of each and every individual’s protected activities (such as the disclosure 

requirement addressed in NAACP v. Alabama700), and a program such as the one under 

consideration today, in which information is collected about innumerable individuals, but 

human eyes are laid on less than .0001% of individuals’ information? To the Board, there is 

no apparent constitutional or policy difference between mere collection of information and 

actually accessing and using that information. I do not agree. 

Third, I agree with the Report’s recommendations as to transparency (except 

recommendation twelve) and the operations of the FISC, both sets of which are designed to 

foster increased confidence in the government’s national security efforts. I also understand 

that each of our recommendations is to be implemented with full consideration of the 

potential impact on our national security, and without hindering the operations of the FISC. 

As to transparency, we have always understood that not everything can be publicly 

discussed, see, e.g., U.S. Const. Art. I § 5, cl. 3. (“Each House shall keep a Journal of its 

Proceedings, and from time to time publish the same, excepting such Parts as may in their 

Judgment require Secrecy”), as we would like to avoid providing our adversaries with a 

roadmap to evade detection. The rational alternative, which occurred here, is to brief the 

relevant committees and members of Congress, seek judicial authorization, and subject a 

program to extensive executive branch oversight. In a representative democracy such as 

 

700 NAACP v. Alabama, 357 U.S. 449 (1958).
217

ours, it is simply not the case that a particular use or related understanding of a statutory 

authorization is illegitimate unless it has been explicitly debated in an open forum. 

Finally, I have a different view from the Board as to the efficacy and utility of the 

Section 215 program. Although the Report purports to consider whether the program 

might be valuable for reasons other than preventing a specific terrorist attack, the tone and 

focus of the Report make clear that the Board does believe that to be the most important 

(and possibly the only) metric. I consider this conclusion to be unduly narrow. Among 

other things, in today’s world of multiple threats, a tool that allows investigators to triage 

and focus on those who are more likely to be doing harm to or in the United States is both 

good policy and potentially privacy-protective. Similarly, a tool that allows investigators to 

more fully understand our adversaries in a relatively nimble way, allows investigators to 

verify and reinforce intelligence gathered from other programs or tools, and provides 

“peace of mind,” has value. 

I would, however, recommend that the NSA and other members of the Intelligence 

Community develop metrics for assessing the efficacy and value of intelligence programs, 

particularly in relation to other tools and programs. The natural tendency is to focus on the 

operation of a given program, without periodic reevaluations of its value or whether it 

could be implemented in more privacy-protective ways. Moreover, the natural tendency of 

the government, the media, and the public is to ask whether a particular program has 

allowed officials to thwart terrorist attacks or save identifiable lives. Periodic assessments 

would not only encourage the Intelligence Community to continue to explore more privacyprotective alternatives, but also allow the government to explain the relative value of 

programs in more comprehensive terms. I hope that our Board will have the opportunity to 

work with the Intelligence Community on such an effort.

* * * * * * *

In many ways, the evaluation of this long-running program was the most difficult 

first test this Board could have faced. Unfortunately, rather than focusing on whether the 

program strikes the appropriate balance between the necessity for the program and its 

potential impacts on privacy and civil liberties, and moving immediately to recommend 

corrections to any imbalance, the Board has taken an extended period of time to analyze (a) 

statutory questions that are currently being litigated, and (b) somewhat academic 

questions of how the Fourth Amendment might be applied in the future and the First 

Amendment implications of programs that do not presently exist. I believe that with 
218

respect to this longstanding program, the highest and best use of our very limited 

resources701 is instead found in our unanimous recommendations.

The development of a modified approach to the very difficult questions raised by the 

government’s non-particularized collection of data presents an ideal opportunity for the 

Board to fulfill its statutory advisory and oversight role. In this regard, I would note that 

some frequently mentioned alternatives pose numerous potential difficulties in their own 

right. For example, some have suggested that the NSA could essentially request that the 

telephone companies run the queries, rather than collecting and retaining records for 

querying. However, even assuming the companies currently keep the relevant records, 

there is no guarantee that those records will continue to be retained in the future. By the 

same token, if another terrorist attack happens, the pressure will be immense to impose 

data retention requirements on those companies, which would pose separate and perhaps 

greater privacy concerns. Finally, it is not at all clear how a third party entity to hold the 

data could be structured in a way that would (a) be an adequate substitute for the Section 

215 program and (b) preserve the security of those records, while (c) ameliorating the 

perceived privacy concerns raised by that program. 

There is much to consider in the near future, and I look forward to working with my 

colleagues on these important issues. 

 

701 Although many agencies claim to lack adequate resources, the situation of the PCLOB is particularly 

remarkable. The agency currently has a full-time Chairman, four part-time Members limited to 60 days of 

work per year, and two permanent staff members. The decision to engage in such an extended discussion of 

largely hypothetical legal issues was therefore not without practical consequences: the Board has delayed 

consideration of the 702 program, and has not addressed any of the other issues previously identified by the 

Board as meriting oversight. Moreover, the decision of three Members of the Board to allocate the entirety of 

the permanent staff’s time to the drafting of the Board Report, while simultaneously drafting and refining that 

Report until it went to the printer, has made a comparably voluminous response impossible.
219

ANNEX C

AGENDA OF PUBLIC WORKSHOP

HELD ON JULY 9, 2013

Link to Workshop transcript:

http://www.pclob.gov/All%20Documents/July%209,%202013%20Workshop%20T

ranscript.pdf
220

PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

Workshop Regarding Surveillance Programs Operated Pursuant to Section 215 of the 

USA PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act

July 9, 2013

Renaissance Mayflower Hotel – Grand Ballroom

1127 Connecticut Ave NW, Washington D.C.

AGENDA

09:00 Doors Open

09:30 – 09:45 Introductory Remarks (David Medine, PCLOB Chairman)

09:45 – 11:30 Panel I: Legal/Constitutional Perspective

Facilitators: Rachel Brand and Patricia Wald, Board Members

Panel Members: 

 Steven Bradbury (Formerly DOJ Office of Legal Counsel)

 Jameel Jaffer (ACLU)

 Kate Martin (Center for National Security Studies)

 Hon. James Robertson, Ret. (formerly District Court and 

Foreign Intelligence Surveillance Court)

 Kenneth Wainstein (formerly DOJ National Security Division/

White House Homeland Security Advisor)

 

12:30 – 2:00 Panel II: Role of Technology

Facilitators: James Dempsey and David Medine, Board Members

Panel Members: 

 Steven Bellovin (Columbia University Computer Science 

Department)

 Marc Rotenberg (Electronic Privacy Information Center)
221

 Ashkan Soltani (Independent Researcher and Consultant)

 Daniel Weitzner (MIT Computer Science and Artificial 

Intelligence Lab)

2:00 – 2:15 Break

2:15 – 4:00 Panel III: Policy Perspective

Facilitators: Elisebeth Collins Cook and David Medine, Board 

Members

Panel Members: 

 James Baker (formerly DOJ Office of Intelligence and Policy 

Review)

 Michael Davidson (formerly Senate Legal Counsel)

 Sharon Bradford Franklin (The Constitution Project)

 Elizabeth Goitein (Brennan Center for Justice)

 Greg Nojeim (Center for Democracy and Technology)

 Nathan Sales (George Mason School of Law)

4:00 – 4:10 Break

4:10 – 4:30 Open for Public Comment

4:30 Closing Comments (David Medine, PCLOB Chairman)

*Affiliations are listed for identification purposes only.
222

ANNEX D

AGENDA OF PUBLIC HEARING

HELD ON NOVEMBER 4, 2013

Link to Hearing transcript:

http://www.pclob.gov/SiteAssets/PCLOB%20Hearing%20-

%20Full%20Day%20transcript%20Nov%204%202013.pdf
223

PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

PUBLIC HEARING

Consideration of Recommendations for Change: 

The Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act 

and Section 702 of the Foreign Intelligence Surveillance Act

November 4, 2013

Renaissance Mayflower Hotel – Grand Ballroom

1127 Connecticut Ave NW, Washington D.C.

AGENDA

08:45 Doors Open

09:15 – 09:30 Introductory Remarks (David Medine, PCLOB Chairman, with Board 

Members 

 Rachel Brand, Elisebeth Collins Cook, James Dempsey, and Patricia 

Wald)

09:30 – 11:45 Panel I: Section 215 USA PATRIOT Act and Section 702 Foreign 

Intelligence 

 Surveillance Act

 Rajesh De (General Counsel, National Security Agency)

 Patrick Kelley (Acting General Counsel, Federal Bureau of 

Investigation)

 Robert Litt (General Counsel, Office of the Director of National 

Intelligence)

 Brad Wiegmann (Deputy Assistant Attorney General, National 

Security Division, Department of Justice)

 

11:45 – 1:15 Lunch Break (on your own)
224

1:15 – 2:30 Panel II: Foreign Intelligence Surveillance Court

 James A. Baker (formerly DOJ Office of Intelligence and Policy 

Review)

 Judge James Carr (Senior Federal Judge, U.S. District Court, 

Northern District of Ohio and former FISA Court Judge 2002-

2008)

 Marc Zwillinger (Founder, ZwillGen PLLC and former

Department of Justice Attorney, Computer Crime & Intellectual 

Property Section)

2:30 – 2:45 Break

2:45 – 4:15 Panel III: Academics and Outside Experts

 Jane Harman (Director, President and CEO, The Woodrow Wilson 

Center and former Member of Congress) 

 Orin Kerr (Fred C. Stevenson Research Professor, George 

Washington University Law School)

 Stephanie K. Pell (Principal, SKP Strategies, LLC; former House 

Judiciary Committee Counsel and Federal Prosecutor)

 Eugene Spafford (Professor of Computer Science and Executive 

Director, Center for Education and Research in Information 

Assurance and Security, Perdue University) 

 Stephen Vladeck (Professor of Law and the Associate Dean for 

Scholarship at American University Washington College of Law)

4:15 Closing Comments (David Medine, PLCOB Chairman)

All Affiliations are listed for identification purposes only.
225

ANNEX E 

Request for Public Comments on Board Study

The Federal Register

The Daily Journal of the United States Government

56952 Federal Register/Vol. 78, No. 179/Monday, September 16, 2013/Notices 

PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD 

[Notice–PCLOB–2013–06; Docket No. 2013– 0005; Sequence No. 6] 

Notice of Hearing

A Notice by the Privacy and Civil Liberties Oversight Board on 10/25/2013

Action

Notice Of A Hearing.

Summary

The Privacy and Civil Liberties Oversight Board (PCLOB) will conduct a public hearing with 

current and former government officials and others to address the activities and 

responsibilities of the executive and judicial branches of the federal government regarding 

the government’s counterterrorism surveillance programs. This hearing will continue the 

PCLOB’s study of the federal government’s surveillance programs operated pursuant to 

Section 215 of the USA PATRIOT Act and Section 702 of Foreign Intelligence Surveillance 

Act. Recommendations for changes to these programs and the operations of the Foreign 

Intelligence Surveillance Court will be considered at the hearing to ensure that 

counterterrorism efforts properly balance the need to protect privacy and civil liberties. 

Visit www.pclob.gov for the full agenda closer to the hearing date. This hearing was rescheduled from October 4, 2013, due to the unavailability of witnesses as a result of the 

federal lapse in appropriations.

DATES: 

Monday, November 4, 2013; 9:00 a.m.-4:30 p.m. (Eastern Standard Time).

Comments:

You may submit comments with the docket number PCLOB-2013-0005; Sequence 7 by the 

following method:
226

 Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line 

instructions for submitting comments.

 Written comments may be submitted at any time prior to the closing of the docket at 

11:59 p.m. Eastern Time on November 14, 2013. This comment period has been 

extended from October 25, 2013, as a result of the new hearing date.

All comments will be made publicly available and posted without change. Do not include 

personal or confidential information.

ADDRESSES: 

Mayflower Renaissance Hotel Washington, 1127 Connecticut Ave. NW., Washington D.C.

20036. Facility’s location is near Farragut North Metro station.

FOR FURTHER INFORMATION CONTACT: 

Susan Reingold, Chief Administrative Officer, 202-331-1986. For email inquiries, please 

email info@pclob.gov.

SUPPLEMENTARY INFORMATION: 

Procedures for Public Participation 

The hearing will be open to the public. Individuals who plan to attend and require special 

assistance, such as sign language interpretation or other reasonable accommodations, 

should contact Susan Reingold, Chief Administrative Officer, 202-331-1986, at least 72 

hours prior to the meeting date.

Dated: October 21, 2013.

Diane Janosek,

Chief Legal Officer, Privacy and Civil Liberties Oversight Board.

https://www.federalregister.gov/articles/2013/10/25/2013-25103/notice-of-hearing
227

ANNEX F

Index to Public Comments received to PCLOB Docket No. 2013-005 on 

www.regulations.gov. 

Comments Received on PCLOB Docket No. 2013-005

Can also view all entries at: http://www.regulations.gov/#!docketDetail;D=PCLOB-2013-

0005

Entity submitting 

comment - listed in 

order as they 

appear on docket

Go to URL to see comment on Docket Additional details:

Global Network 

Initiative (GNI)

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0027

GNI is a multistakeholder group of 

companies, civil society 

organizations (including 

human rights and press 

freedom groups), 

investors and academics

Private individual http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0044

Nathan Sales http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0022

Panel member at PCLOB 

Workshop

European Digital 

Rights (EDRi) and the 

Fundamental Rights 

European Experts 

Group (FREE) 

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0024

EDRi is an association of 

35 digital civil rights 

organizations from 21 

European countries. 

FREE is an association 

whose focus is on 

monitoring, teaching and 

advocating in the EU.

Michael Davidson http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0020

Panel member at PCLOB 

Workshop
228

Project On 

Government 

Oversight (POGO), 

National Security 

Counselors, and 

OpenTheGovernment

.org.

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0029

Center for National 

Security Studies

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0033

Kate Martin was a panel 

member at PCLOB 

Workshop

Michael Davidsonsecond submissionhttp://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0028

Providing the July 30th 

opinion of the U.S. Court 

of Appeals for the Fifth 

Circuit in In re: 

Application of the United 

States of America for 

Historical Cell Site Data, 

No. 11-20884

Mr. Juan Fernando 

Lόpez Aguilar, Chair 

of the European 

Parliament’s Civil 

Liberties, Justice and 

Home Affairs 

Committee

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0059

Ashkan Soltani http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0023

Panel member at PCLOB 

Workshop

Alliance for Justice http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0035

Alan Charles Raul http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0065

Has four attachments

“Three former 

intelligence 

professionals - all 

former employees of 

the National Security 

Agency”

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0053

Statement submitted
229

Private citizen 

anonymous

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0014

Coalition of 53 

groups- letter

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0038

This is an updated 

coalition letter to PCLOB

The Constitution 

Project

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0009

Sharon Bradford 

Franklin was a panel 

member at PCLOB 

Workshop

Computer and 

Communications 

Industry Association

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0025

Private citizen 

anonymous

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0017

Electronic Frontier 

Foundation

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0030

-BSA 

-The Software 

Alliance 

Computer & 

Communications 

Industry Association 

(CCIA) 

-Information 

Technology Industry 

Council (ITI) 

- SIIA (Software & 

Information Industry 

Association) 

- TechNet

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0061
230

Ashkan Soltani http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0039

Revised submission, was 

a panel member at 

PCLOB Workshop

Private citizen 

anonymous

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0005

Daniel J. Weitzner, 

Massachusetts 

Institute of 

Technology

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0040

Panel member at PCLOB 

Workshop

Private citizen 

anonymous

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0052

Access -

AccessNow.org

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0048

Information and 

Privacy 

Commissioner of 

Ontario, Canada, Dr. 

Ann Cavoukian

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0057

Privacy Times http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0011

Electronic Privacy 

Information Center

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0064

Marc Rotenberg was a 

panel member at PCLOB 

Workshop

ACLU Statement http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0032

Jameel Jaffer was a panel 

member at PCLOB 

Workshop

Private citizen 

anonymous

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0046

Mark Sokolow http://www.regulations.gov/#!docume
231

ntDetail;D=PCLOB-2013-0005-0018

GodlyGlobal.org http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0019

A faith-based

initiative based in 

Switzerland with global 

scope

Private citizen 

anonymous

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0041

ACCESS NOW http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0047

Second posting

Coalition letter http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0010

Center for 

Democracy & 

Technology, Gregory 

T. Nojeim

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0034

Gregory Nojeim was a 

panel member at PCLOB 

Workshop

Reporters Committee 

for Freedom of the 

Press

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0063

Center for National 

Security Studies

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0060

Kate Martin was a panel 

member at PCLOB 

Workshop

Private citizen 

anonymous

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0037

Brennan Center for 

Justice’s Liberty and 

National Security 

Program

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0049

Elizabeth Goitein was a 

panel member at PCLOB 

Workshop

Jeffrey H. Collins http://www.regulations.gov/#!docume
232

ntDetail;D=PCLOB-2013-0005-0043

Jeffrey H. Collins http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0045

Amended 

Steven G. Bradbury http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0012

Panel member at PCLOB 

Workshop

Human Rights Watch http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0036

“Human rights 

organizations and 

advocates from 

around the world”

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0042

Dozens of countries 

represented

Steven M. Bellovin http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0021

Panel member at PCLOB 

Workshop

Board of the U.S. 

Public Policy Council 

of the Association for 

Computing 

Machinery

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0026

Eugene H. Spafford, was 

a panelist at the Hearing

Private citizen http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0066

Caspar Bowden, 

Prepared for the 

European Parliament 

LIBE Committee

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0068

Stephanie Pell http://www.regulations.gov/#!docume Panel member at hearing
233

ntDetail;D=PCLOB-2013-0005-0069

Congressman Bennie 

Thompson

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0071

Ranking Member, 

Committee on Homeland 

Security

Government 

Accountability 

Project

http://www.regulations.gov/#!docume

ntDetail;D=PCLOB-2013-0005-0072
234

This Report is the Privacy and Civil Liberties Oversight Board’s effort to analyze and review 

actions the executive branch takes to protect the Nation from terrorism to ensure the proper 

balancing of these actions with privacy and civil liberties.