SU

UNITED ST ATES

FOREIGN INTELLIGENCE SURVEILLANCE CO~JU

!._~,f,A.~N FlYN HA LL
,_ £.,K Ot- COURT

WASHINGTON, D. C.
IN RE APPLICATION OF THE FEDERAL
BUREAU OF INVESTIGATION FOR AN
ORDER REQUIRING THE PRODUCTION
OF TANGIBLE THINGS

-2 PM 9: 50

Docket No.

~~ 15

-75

MEMORANDUM OF LAW

The United States of America submits this Memorandum of Law to address issues
of law raised by those parts of the recently-enacted USA FREEDOM Act of 2015 (USA
FREEDOM Act) that amend 50 U.S.C. § 1861. As described more fully below, the
Government submits that Section 1861, as amended by the USA FREEDOM Act,
authorizes the Court to approve the Government's application for the bulk production of
call detail records for a 180 day transition period. The Government respectfully submits
that such authorization is appropriate notwithstanding the Second Circuit's recent panel
opinion in ACLU v. Clapper, No. 14-42 (2d Cir. May 7, 2015).
I. Statement of Facts

On February 26, 2015, upon consideration of the Application by the United States
pursuant to Section 1861, the Honorable James E. Boasberg of this Court issued orders in
docket number BR 15-24 requiring, among other things, the production to the National
Security Agency (NSA) of certain call detail records ("telephony metadata" or "BR

 metadata"). The Court found that there are reasonable grounds to believe that the call
detail records sought are relevant to authorized investigations (other than threat
assessments) being conducted by the Federal Bureau of Investigation (FBI) under
guidelines approved by the Attorney General under Executive Order 12333 to protect
against international terrorism, which investigations are not being conducted solely
upon the basis of activities protected by the First Amendment to the Constitution of the
United States. Primary Order, docket number BR 15-24, at 2. The Court also found that
the call detail records sought are the type of records that could 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, and that the Government's application includes
an enumeration of the minimization procedures the Government proposes to follow
with regard to the call detail records sought. Id. The authorization granted in docket
number BR 15-24 expired on June 1, 2015, at 5:00 p.m. Eastern Time.
The Primary Order in docket number BR 15-24 directed that, in the event the
Government seeks renewed authorization, the Government shall file a memorandum of
law to address the state of the law. Specifically, "If Congress has enacted legislation
amending 50 U.S.C. § 1861 prior to a request for renewed authorities, the government is
directed to provide, along with its request, a legal memorandum pursuant to Rule ll(d)
of this Court's Rules of Procedure addressing any issues of law raised by the legislation

2

 and not previously considered by the Court." If, on the other hand, Congress did not
enact legislation amending Section 1861 or extending its sunset date, the Primary Order
directed the filing of a memorandum of law "addressing the power of the Court to grant
such authority beyond June 1, 2015."
Section 215 of the PATRIOT Act had amended Section 1861 and, as amended, was
scheduled to sunset on June 1, 2015. Pub. L. 109-177 § 102(b), 120 Stat. 192, 194-95, as
amended by Pub. L. 112-14 § 2(a), 125 Stat. 216. Following the June 1, 2015 sunset of
Section 215, on June 2, 2015, Congress passed and, later that day the President signed
into law, the USA FREEDOM Act. The USA FREEDOM Act, among other things,
prohibits the bulk production of tangible things under Section 1861 and provides a new
mechanism for the Government to obtain a targeted production of call detail records
relating to authorized investigations to protect against international terrorism. The
prohibition on bulk production under Section 1861 and the new mechanism for the
targeted production of call detail records "shall take effect on the date that is 180 days
after the date of the enactment of [the USA FREEDOM Act]." Until then, however,
Section 109(b) expressly provides that "[n]othing in this Act shall be construed to alter or
eliminate the authority of the Government to obtain an order under title V ... as in effect
prior to the effective date ... during the period ending on such effective date." Thus, for
a 180 day period beginning on June 2, 2015, the Government has specific statutory
authorization to seek and obtain an order under Section 1861 as in effect prior to the

3

 effective date. Id. § 109(b) Because the USA FREEDOM Act also extends the sunset date
for Section 215 of the PATRIOT Act, as amended, to December 15, 2019, see id.§ 705(a),
the version of Section 1861 in effect immediately prior to the end of the 180 day period is,
in pertinent part, the same version in effect at the time the Court approved the
Government's application in docket number BR 15-24 and prior related dockets.

II. Legal Analysis
The USA FREEDOM Act authorizes the Government to seek and this Court to
issue an order under Section 1861 for the production of tangible things in bulk for 180
days in the same manner as authorized in docket number BR 15-24 and prior related
dockets. The USA FREEDOM Act bans the bulk production of tangible things under
Section 1861effective180 days from its enactment, which is when Sections 101 through
103 take effect. Id.§ 109(a). Its brief lapse notwithstanding, the USA FREEDOM Act also
expressly extends the sunset of Section 215 of the USA PATRIOT Act, as amended, until
December 15, 2019, id.§ 705(a), and provides that, until the effective date of the
amendments made by Sections 101through103, it does not alter or eliminate the
Government's authority to obtain an order under Section 1861 as in effect prior to the
effective date of Sections 101through103 of the USA FREEDOM Act. Id.§ 109(b).
Because the USA FREEDOM Act extends the sunset for Section 215 and delays the ban
on bulk production under Section 1861until180 days from its enactment, the
Government respectfully submits that it may seek and this Court may issue an order for

4

 the bulk production of tangible things under Section 1861 as amended by Section 215 of
the USA PATRIOT Act as it did in docket number BR 15-24 and prior related dockets.
Prior to and during the drafting, debate and enactment of the USA FREEDOM
Act, both Congress and the public knew that this Court interpreted Section 1861 to
authorize the bulk production of call detail records to NSA and that this bulk production
was, until June 1, 2015, a current, ongoing production. Accordingly, when expressly
providing for a 180 day delay in the effective date for Sections 101through103, and
thereby authorizing continued orders under Section 1861 for the production of tangible
things in bulk for 180 days, Congress did so in order to allow for the orderly termination
of the current bulk production program and implementation of the technical capabilities
required for the targeted production under the new provisions of Sections 101 through
103. Indeed, the recent legislative debate expressly noted the continuation of the bulk
collection program during this transition period. See, e.g., 161 CONG. REC. S3303 (daily
ed. May 22, 2015) (statement of Sen. Grassley) ("[The USA FREEDOM Act] would end
the bulk collection of telephony metadata in 6 months, and transition the program to a
system where the phone companies hold the data for targeted searching by the
government."). See also, 161 CONG REC. S3275 (daily ed. May 22, 2015) (statement of Sen.
Leahy) ("Just this week, the NSA Director stated in a letter to Leaders McConnell and
Reid that the NSA only needs 180 days to transition to the new targeted program

5

 established by the USA FREEDOM Act. Not 2 years. The 180-day transition has been
part of the USA FREEDOM Actfor more than a year.").
This purpose is plain from the USA FREEDOM Act as a whole, and Section 109 in
particular. The USA FREEDOM Act prohibits bulk collection under a number of
authorities, see§§ 103 (tangible things), 201 (pen register and trap and trace), and 501
(national security letters). The prohibitions against bulk production under Titles II and
V of the USA FREEDOM Act (FISA Pen Register and Trap and Trace Reform, and
National Security Letter Reform, respectively) take effect immediately upon enactment.
But the prohibition on bulk collection of call detail records under Section 1861 allows for
a 180-day orderly transition of the program. The extension of the sunset date of the USA
PATRIOT Act coupled with the USA FREEDOM Act's provision for an orderly transition
of the bulk metadata program would be meaningless if Congress did not also intend for
the USA FREEDOM Act to authorize the existing program during the transition. See,
~INS

v. Stanisic, 395 U.S. 62, 78 (1969) (rejecting an interpretation of a statutory

provision that "would, as a practical matter, render [it] useless for the very function it
was designed to perform"). Congress recognized the need for an orderly transition
period that preserves an important foreign intelligence collection capability until the
Government may effectively avail itself of the new provisions for a targeted production.
The Second Circuit's recent panel opinion in ACLU v. Clapper, No. 14-42 (2d Cir.
May 7, 2015) does not bar this Court from authorizing the production in bulk of call

6

 detail records, notwithstanding its holding that Section 1861 does not authorize the bulk
production of call detail records. The Government believes that this Court's analysis of
Section 215 reflects the better interpretation of the statute, see, e.g., In Re Application of
the FBI for an Order Requiring the Production of Tangible Things, docket no. BR 13-109,
Amended Mem. Op., 2013 WL 5741573 (FISA Ct. Aug. 29, 2013) (Eagan, J.) and In Re
Application of the FBI for an Order Requiring the Production of Tangible Things, docket
no. BR 13-158, Mem. (FISA Ct. Oct. 11, 2013) (McLaughlin, J.), disagrees with the Second
Circuit panel's opinion, and submits that the request for renewal of the bulk production
authority is authorized under the statute as noted above. 1
This Court may certainly consider ACLU v. Clapper as part of its evaluation of
the Government's application, but Second Circuit rulings do not constitute controlling
precedent for this Court. With respect to application of Section 1861 of FISA, as
amended by Section 215 of the USA PA TRI OT Act, following careful consideration of the
law by nineteen different judges, this Court has authorized the bulk production of call
detail records to NSA forty-one times since May 2006. Although each such request
sought a large number of call detail records, the vast majority of which ultimately will
not be terrorist-related, the Government has argued and this Court has agreed, including
in separate declassified opinions written by Judges Eagan, McLaughlin and Zagel, see

The Government is currently in the process of weighing its variouslitigation options in
light of the opinion, including whether to petition for rehearing (panel and/oren bane) and/or
petition for a writ of certiorari.
1

7

 docket numbers BR 13-109, BR 13-158, and BR 14-96, that the NSA bulk telephony
metadata collection program is authorized by Section 215 of the USA PA TRI OT Act.
Each of these judges has concluded that the call detail records in bulk are "relevant," as
that term is defined in Section 1861, to FBI investigations of the targeted foreign powers
because NSA can effectively conduct metadata analysis, identifying contacts between
known and unknown agents of the targeted foreign powers, only by having a bulk
repository of such records. See, e.g., In Re Application of the FBI for an Order Requiring
the Production of Tangible Things. docket no. BR 13-109, Amended Mem. Op., at 22-,
2013 WL 5741573, at *7 (FISA Ct. Aug. 29, 2013) (Eagan, J.) ("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."). See also In Re Application of the FBI for an Order Requiring the Production
of Tangible Things. Docket No. BR 13-158, Memorandum at 3 (FISA Ct. Oct. 11, 2013)
(McLaughlin, J.); and In Re Application of the FBI for an Order Requiring the Production
of Tangible Things, Docket No. BR 14-96, Mem. Op. at 3 (FISA Ct. June 19, 2014) (Zagel,
J.). The Government submits that this Court's analysis continues to reflect the better
reading of Section 1861.

8

 Moreover, in issuing its May 7, 2015 opinion, the Second Circuit panel declined to
conclude that any preliminary injunction against the Government was required
immediately, instead leaving it to the district court to reconsider on remand the
propriety of injunctive relief in light of its opinion. The panel continued by noting that in
light of Section 215' s then-scheduled sunset and the Government's stated national
security justification to continue the program, "allowing the program to remain in place
for a few weeks while Congress decides whether and under what conditions it should
continue is a lesser intrusion on appellants' privacy than they faced at the time this
litigation began," such that it is prudent "to pause to allow an opportunity for debate in
Congress that may (or may not) profoundly alter the legal landscape." Id. at 95. In
doing so, the Second Circuit panel recognized that "Congress is better positioned than
the courts to understand and balance the intricacies and competing concerns involved in
protecting our national security, and to pass judgment on the value of the telephone
metadata program as a counterterrorism tool." 2 Id. at 95. Through enactment of the

Congress was aware of the Second Circuit's opinion at the time it passed the USA
FREEDOM Act. See H. Rep. 114-109, Part 1, at 18-19 ("These changes restore meaningful limits to
the 'relevance' requirement of Section 501, consistent with the opinion of the U.S. Court of
Appeals for the Second Circuit in ACLU v. Clapper."). The Second Circuit panel stated that "[i]f
Congress fails to reauthorize§ 215 itself, or reenacts§ 215 without expanding it to authorize the
telephone metadata program, there will be no need for prospective relief,since the program will
end .... " ACLU v. Clapper, No. 14-42 at 96. However, for the reasons discussed above, the
"changes" made by the USA FREEDOM Act in regard to the bulk production oftangible things
become effective 180 days after enactment, and can be interpreted only as leaving in place until
that time the relevance standard previously interpreted to authorize orders for the bulk
production of call detail records.
2

9

 USA FREEDOM Act, Congress engaged in the sort of deliberative process that the
Second Circuit panel envisioned and, as outlined above, authorized the Government to
continue to seek and this Court to continue to authorize an order under Section 1861 for
the production of tangible things in bulk for 180 days.
Because the Second Circuit declined to order the issuance of an injunction against
the Government, its ruling has no immediate effect, even as to the parties to that
proceeding. And the nature and scope of any injunction would remain to be considered
by the district court in the first instance following a remand.3 As noted above, the
Government is considering its litigation options in regard to the Second Circuit's opinion.
Furthermore, unless an extension is granted, any petition for rehearing, panel and/or en
bane, would be due on June 22, 2015, and the Second Circuit's mandate would not issue
until seven days after the deadline for a petition for rehearing has passed, if none is filed,
or seven days after any denial of a petition for rehearing. Thus, at the earliest, the
mandate would issue on June 29, 2015. If and when the mandate issues, the case will be
remanded to the district court to determine whether to issue an injunction and, if so, the
nature and scope of any such relief.

3

In the event an injunction of some sort were to issue by the district court, the
Government would need to assess, in light of the nature and scope of whatever injunction the
district court issued, its ability to carry out authority granted under an order issued by this Court.

IO

 III. Conclusion

For the foregoing reasons, the Government respectfully submits that this Court
may approve the Government's application for the ongoing production of certain call
detail records to NSA under Section 1861 of FISA, as amended by the USA FREEDOM
Act.

Respectfully submitted,
John P. Carlin
Assistant Attorney General

~/L11s
Date

By:

Stuart J. Evans
Deputy Assistant Attorney General
National Security Division
U.S. Department of Justice

11