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Newly Declassified Documents Regarding the Now-Discontinued NSA Bulk Electronic Communications Metadata Pursuant to Section 402 of the Foreign Intelligence Surveillance Act

Monday, August 11, 2014
Following a declassification review by the Executive Branch, the Department of Justice released on August 6, 2014, in redacted form, 38 documents relating to the now-discontinued NSA program to collect bulk electronic communications metadata pursuant to Section 402 of the FISA (“PRTT provision”).  These documents are also responsive to a Freedom of Information Act request by the Electronic Privacy Information Center.  The Intelligence Community previously released information about this program to the public on November 18, 2013. 

Under the program NSA was permitted to collect certain electronic communications metadata such as the “to,” “from,” and “cc” lines of an email and the email’s time and date.  This collection was done only after the Foreign Intelligence Surveillance Court approved the government’s applications, and pursuant to court order generally lasting 90 days.  NSA was not permitted to collect the content of any electronic communications.  Like NSA’s bulk telephony metadata program under FISA section 501, this program was subject to several restrictions approved by the FISC, such as:

  • The information could be used only for counterterrorism purposes.
  • The information had to be stored in secure databases.
  • The databases could be queried using an identifier such as an email address only when an analyst had a reasonable and articulable suspicion that the email address was associated with certain specified foreign terrorist organizations that were the subject of FBI counterterrorism investigations.  The basis for that suspicion had to be documented in writing and approved by a limited number of designated approving officials identified in the Court’s Order.  Moreover, if an identifier was reasonably believed to be used by a United States person, NSA’s Office of General Counsel would also review the determination to ensure that the suspected association was not based solely on First Amendment-protected activities.
  • NSA was required to destroy the bulk metadata after a set period of time.
      
The information released on August 6, 2014, together with documents previously released, demonstrates the extent to which the IC sought and received FISC approval to collect electronic communications metadata under the PRTT provision, the oversight regime of internal checks over the program, and that Congress was kept fully apprised of the status of NSA’s electronic metadata collection.  The documents released include several associated with government applications and FISC orders authorizing the collection of metadata under the PRTT program.  Other documents included in this release include the report of an end-to-end review of the PRTT program undertaken by the Executive Branch, DOJ’s letter to the FISC seeking clarification on the FISC’s authorization to collect metadata, and correspondence from the NSA Inspector General. 

After the 2009 discovery of certain compliance issues associated with NSA’s electronic communications and telephony bulk metadata collection programs, the Government took measures to strengthen compliance and oversight.  More information on NSA’s enhanced compliance mechanisms can be found in the November 18, 2013, release.

As previously stated, this Internet communications metadata bulk collection program has been discontinued.  The Intelligence Community regularly assesses the continuing operational value of all of its collection programs.  In 2011, the Director of NSA called for an examination of this program to assess its continuing value as a unique source of foreign intelligence information.  This examination revealed that the program was no longer meeting NSA’s operational expectations.  Accordingly, after careful deliberation, the Government discontinued the program, and the metadata collected pursuant to this program has been purged.

In addition, the DOJ also released four documents that do not directly relate to bulk collection under the PRTT provision but are responsive to EPIC’s FOIA request.  Like the documents relating to the bulk collection, these documents demonstrate the FISC’s judicial oversight of PRTT collection under the FISA.

Office of the Director of National Intelligence Public Affairs Office







Judicial Oversight


FISC Opinion and Order


FISC Primary Order


FISC Primary Order


FISC Order and Supplemental Order


FISC Supplemental Order


FISC Primary Order


FISC Memorandum Opinion Granting in Part and Denying in Part Application to Reinitiate, in Expanded Form, Pen Register/Trap and Trace Authorization


Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency


Government's Response to the FISC's Supplemental Order


Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency


Supplemental Declaration of Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency

Government's Response to the FISC's Supplemental Order Requesting a Corrective Declaration


Government's Response to a FISC Order


Declaration of Lieutenant General Keith B. Alexander, U.S. Army, Director, NSA, Concerning NSA's Compliance with a FISC Order


Preliminary Notice of Potential Compliance Incident


Notice of Filing

Government's Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes


Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes

Declaration of General Keith B. Alexander, U.S. Army, Director, NSA, in Support of Pen Register/Trap and Trace Application


Exhibit D in Support of Pen Register/Trap and Trace Application


First Letter in Response to FISC Questions Concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices


Second Letter in Response to FISC Questions concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices


Third Letter in Response to FISC Questions Concerning NSA Bulk Metadata Collection Using Pen Register/Trap and Trace Devices


Application for Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes

Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes


Declaration of General Michael V. Hayden, U.S Air Force, Director, NSA, in Support of Pen Register/Trap and Trace Application


Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes

Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate


Declaration Lieutenant General Keith B. Alexander, U.S. Army, Director, NSA, Concerning NSA's Implementation of Authority to Collect Certain Metadata


NSA's Pen Register Trap and Trace FISA Review Report


DOJ Report to the FISC NSA's Program to Collect Metadata


Government's First Letter to Judge Bates to Confirm Understanding of Issues Relating to the FISC's Authorization to Collect Metadata


Government's Second Letter to Judge Bates to Confirm Understanding of Issues Relating to the FISC's Authorization to Collect Metadata


Tab 1 Declaration of NSA Chief, Special Oversight and Processing, Oversight and Compliance, Signals Intelligence


Verified Memorandum of Law in Response to FISC Supplemental Order


Memorandum of Law in Response to FISC Order



Additional Declassification -- Added August 22, 2014
:

Declaration of George J. Tenet, Director of Central Intelligence, in Support of Pen Register/Trap and Trace Application

Report Regarding FBI Databases
 

Congressional Oversight


Government's Motion to Unseal FISC Documents in Order to Brief Congressional Intelligence and Judiciary Committees


Order Granting the Government's Motion to Unseal FISC Documents in Order to Brief Congressional Intelligence and Judiciary Committees

April 27, 2005 Testimony of the Attorney General and Director, FBI Before the Senate Select Committee on Intelligence

 

Internal Oversight


NSA IG Memo Announcing its Audit of NSA's Controls to Comply with the FISA Court's Order Regarding Pen Register/Trap and Trace Devices


NSA IG Memo Suspending its Audit of NSA after the NSA's PRTT Metadata Program Expired

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