WASHINGTON, DC 20511
September 12, 2014
Joint Statement from the Office of the Director of National Intelligence
and the U.S. Department of Justice on the Declassification
of Renewal of Collection Under Section 501 of the
Foreign Intelligence Surveillance Act
Earlier this year in a speech at the Department of Justice, President Obama announced a transition that would end the Section 215 bulk telephony metadata program as it previously existed, and that the government would establish a mechanism that preserves the capabilities we need without the government holding this bulk data. As a first step in that transition, the President directed the Attorney General to work with the Foreign Intelligence Surveillance Court (FISC) to ensure that, absent a true emergency, the telephony metadata can only be queried after a judicial finding that there is a reasonable, articulable suspicion that the selection term is associated with an approved international terrorist organization. The President also directed that the query results must be limited to metadata within two hops of the selection term instead of three.
These two changes were put into effect in February 2014. In addition to directing those immediate changes to the program, the President also directed the Intelligence Community and the Attorney General to develop options for a new approach to match the capabilities and fill gaps that the Section 215 program was designed to address without the government holding this metadata. After carefully considering the available options, the President announced in March that the best path forward is that the government should not collect or hold this data in bulk, and that it remain at the telephone companies with a legal mechanism in place which would allow the government to obtain data pursuant to individual orders from the FISC approving the use of specific numbers for such queries. The President also noted that legislation would be required to implement this option and called on Congress to enact this important change to the Foreign Intelligence Surveillance Act (FISA).
Consistent with the President’s March proposal, in May, the House of Representatives passed H.R. 3361, the USA FREEDOM Act. Among other things, the legislation would create a new mechanism for the government to obtain telephony metadata pursuant to individual orders from the FISC, rather than in bulk. In July, a bipartisan group of senators introduced S. 2685, an updated version of the USA FREEDOM Act, building on the legislation passed in the House. This bill would ban bulk collection under Section 215 of the USA PATRIOT Act, and certain other authorities. The Department of Justice and the Director of National Intelligence support this legislation and believe that it reflects a reasonable compromise that preserves essential Intelligence Community capabilities, enhances privacy and civil liberties, and increases transparency.
Given that legislation has not yet been enacted, and given the importance of maintaining the capabilities of the Section 215 telephony metadata program, the government has sought a 90-day reauthorization of the existing program, as modified by the changes the President announced in January. Consistent with prior declassification decisions, in light of the significant and continuing public interest in the telephony metadata collection program, DNI Clapper declassified the fact that the government filed an application with the FISC to reauthorize the existing program for 90 days, and that today on September 11, 2014 the FISC issued an order approving the government’s application. The order issued today on September 11, 2014 expires on December 5, 2014. The Administration is undertaking a declassification review of this most recent court order, and when complete, the ODNI will post the documents to its website and icontherecord.tumblr.com.
Updated 11-6-2014 to indicate the correct date of issuance.