One such FISA amendment, section 215 of the PATRIOT Act, permits the FBI director or his designee “to make an application [to the FISC] for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” 50 U.S.C. § 1861(a)(1). That application must 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) . . . to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”

For our previous commentaries, see May 2003, August 2003, and October 2005. 2. 50 U.S.C. 1861 (a part of the Foreign Intelligence Surveillance Act), as amended by USA PATRIOT Act 215. 3. 50 U.S.C. 1861 requires that 215 orders be approved by a secret FISA court. FISA courts were created by 50 U.S.C. 1803. which authorizes the Chief Justice to appoint eleven FISA court judges, who serve for a maximum of seven years. 4.

Surveillance Court Rules ACLU and Yale Clinic Have Standing to Pursue Release of Section 215 RulingsIn its first publicen bancruling, a United States surveillance court ruled that parties could have access to surveillance court judicial opinions related to programs permitting the bulk collection of communications information. On November 9, 2017, the Foreign Intelligence Surveillance Court (FISC) ruled the American Civil Liberties Union (ACLU) and Yale Law School’s Media Freedom and Information Access Clinic (MFIA Clinic) have standing to proceed with their suit to compel the release of FISC opinions evaluating the meaning, scope and constitutionality of Section 215 of the USA Patriot Act, 50 U.S.C. § 1861. FISC’s prior approval of the surveillance requests under Section 215 led to the bulk collection of American citizens’ telephonic metadata from telecommunications companies for use in counterterrorism efforts.

Fast approaching is the June 1 expiration of certain provisions of the Patriot Act, including § 215 (codified as 50 U.S.C § 1861), which is the basis for the National Security Agency’s (NSA) bulk telephone metadata collection program (the “telephone metadata program”). The future of the program is unclear in light of ACLU, et al. v. Clapper, et al., a recent Second Circuit decision that struck down the program as illegal under § 215, and the continued turmoil in Congress regarding efforts to reform or renew the Patriot Act.

The ensuing debate regarding the competing interests in national security and data privacy continues today, as these practices come under increased pressure in anticipation of two important developments coming in June 2015.On June 1, 2015, Section 215 of the U.S. PATRIOT Act (50 U.S.C. § 1861) (“Section 215”) is set to expire. Section 215 is the authority that allows the NSA, with assistance from the Federal Bureau of Investigation (“FBI”), to collect “metadata” of every phone call that originated or terminated in the United States.

That holding in Smith established a basic dichotomy between "content" of communications and other, ancillary data - a dichotomy that since has become embedded in a number of federal statutes. See, e.g., Electronic Communications Privacy Act, 18 U.S.C. § 2511 (distinguishing between content and non-content); Pen Register Statute, 18 U.S.C. § 3121(c) (allowing government to install pen register so long as it does not capture content); PATRIOT Act, 50 U.S.C. § 1861 (business records provision, allowing collection of these types of data). It alsois what allows the National Security Agency to collect all of our telephone meta-data.