NSA bulk collection of Americans' phone records

After the September 11 attacks, a classified presidential authorization directed the NSA to collect, among other things, telephone and Internet metadata in bulk, without court orders. This later became known as part of the President's Surveillance Program. The account comes from the 2014 report of the Privacy and Civil Liberties Oversight Board.

A Foreign Intelligence Surveillance Court judge signed an order (docket BR 06-05) approving the government's application to collect calling records in bulk under Section 215 of the USA PATRIOT Act. According to the Privacy and Civil Liberties Oversight Board, the order was not accompanied by an opinion explaining the decision to grant the application.

In January 2009, Justice Department representatives attended an NSA briefing. That briefing and later communication confirmed that an automated NSA 'alert list' system had been searching the Section 215 phone records in a manner contrary to the FISA court's orders. A FISA court judge ordered the government to file a written brief, and the government acknowledged that the NSA's descriptions of the alert list process to the court had been 'inaccurate.'

In an open hearing of the Senate Intelligence Committee, Senator Ron Wyden asked whether the NSA collects any type of data at all on millions, or hundreds of millions, of Americans. Director of National Intelligence James Clapper answered "No, sir," and then "Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly."

The Guardian, in a story by reporter Glenn Greenwald, reported on a top-secret FISA court order it had obtained. The order required Verizon, on an "ongoing, daily basis," to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries. The paper said the document showed for the first time that under the Obama administration the communication records of millions of US citizens were being collected indiscriminately and in bulk.

The Privacy and Civil Liberties Oversight Board, an independent federal agency, concluded that Section 215 does not provide an adequate legal basis for the bulk telephone records program. It also found the program had shown only limited value and recommended that the government end it.

In ACLU v. Clapper (No. 14-42), the U.S. Court of Appeals for the Second Circuit held that the bulk telephone metadata program went beyond what Congress authorized in Section 215.

Public Law 114-23, the USA FREEDOM Act of 2015, was approved on June 2, 2015. Its title describes it as an act 'to reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering' for foreign intelligence and related purposes.

The U.S. Court of Appeals for the Ninth Circuit heard an appeal in a terrorism-financing prosecution (No. 13-50572). It held that the metadata collection went beyond what Congress authorized and therefore violated FISA, and that it may have violated the Fourth Amendment. The court also said public statements by government officials suggesting the program had been important to the case were inconsistent with the classified record.