FISC Approves Application to Renew Telephony Metadata Program [UPDATED]

Today, the Office of the Director of National Intelligence declassified and announced that the FISC has approved the government’s application to renew the telephony metadata program.  In a press release that gave a nod to the potential for reform of the program (the entirety of which is available after the jump), the DNI said:

“[t]he Intelligence Community continues to be open to modifications to this program that would provide additional privacy and civil liberty protections while still maintaining its operational benefits. To that end, the Administration is carefully evaluating the recommendation of the President’s Review Group on Intelligence and Communications Technologies regarding transitioning the program to one in which the data is held by telecommunications companies or a third party. In addition, the Privacy and Civil Liberties Oversight Board will complete a report on this program in the near future. The Administration will review all of these recommendations and consult with Congress and the Intelligence Community to determine if there are ways to achieve our counterterrorism mission in a manner that gives the American people greater confidence.”

[UPDATED 01/05/2014]: The FISC’s approval of the application to renew the telephony metadata program comes on the heels of an order by the FISC last month to allow the Center for National Security Studies (CNSS) to submit an amicus curiae brief on why Section 215 of the PATRIOT Act “does not authorize the collection of telephony metadata in bulk.”Despite the recent order, it is our understanding that no amicus briefs were filed before the court on this renewal application. [Our earlier coverage of the CNSS filings in the Section 215 proceedings before the FISC is available here.]

The press release notes that the order itself is still under declassification review and, therefore, not yet publicly available.

Notably, the FISC’s approval of the government’s application is the first since the conflicting district court opinions in the D.D.C. and the S.D.N.Y on the legality of the program, Klayman v. Obama and ACLU v. Clapper, respectively.

And in perhaps unsurprising–but related–news, notices of appeal have now been filed in both of these cases.  Today the government filed a notice of appeal in Klayman.  This comes on the heels of yesterday’s announcement from the ACLU that it had filed a notice of appeal in Clapper.

Here is the press release in full:

January 3, 2014

Foreign Intelligence Surveillance Court Approves Government’s Application
to Renew Telephony Metadata Program

On several prior occasions, the Director of National Intelligence has declassified information about the telephony metadata collection program under the “business records” provision of the Foreign Intelligence Surveillance Act, 50 U.S.C. Section 1861 (also referred to as “Section 215”), in order to provide the public a more thorough and balanced understanding of the program. Consistent with his prior declassification decisions and in light of the significant and continuing public interest in the telephony metadata collection program, DNI Clapper has decided to declassify and disclose publicly that the government filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the court renewed that authority on January 3, 2014.

It is the administration’s view, consistent with the recent holdings of the United States District Courts for the Southern District of New York and Southern District of California, as well as the findings of 15 judges of the Foreign Intelligence Surveillance Court on 36 separate occasions over the past seven years, that the telephony metadata collection program is lawful. The Department of Justice has filed an appeal of the lone contrary decision issued by the United States District Court for the District of Columbia.

Nevertheless, the Intelligence Community continues to be open to modifications to this program that would provide additional privacy and civil liberty protections while still maintaining its operational benefits. To that end, the Administration is carefully evaluating the recommendation of the President’s Review Group on Intelligence and Communications Technologies regarding transitioning the program to one in which the data is held by telecommunications companies or a third party. In addition, the Privacy and Civil Liberties Oversight Board will complete a report on this program in the near future. The Administration will review all of these recommendations and consult with Congress and the Intelligence Community to determine if there are ways to achieve our counterterrorism mission in a manner that gives the American people greater confidence.

The Administration is undertaking a declassification review of this most recent court order.

Shawn Turner
Director of Public Affairs
Office of the Director of National Intelligence

 

About the Author(s)

Thomas Earnest

Former Managing Editor of Just Security (2013-14) Follow him on Twitter (@thomasdearnest).