Opinion and Order

UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.
IN RE APPLICATION OF THE
FEDERAL BUREAU OF INVESTIGATION FOR
AN ORDER REQUIRING THE PRODUCTION
OF TANGIBLE THINGS
Docket Number: BR 14-01
OPINION AND ORDER
This matter is before the United States Foreign Intelligence Surveillance Court (..FISC"
or ..Court") on the government's Notice of Entry of Temporary Restraining Order Against the
United States and Motion for Temporary Relief from Subparagraph (3)(E) of Primary Order,
filed on March 11, 2014 (..March 11 Notice and Motion"). For reasons explained herein, the
government's request for temporary relief is granted, subject to a modification to the conditions
proposed by the government.
The Primary Order in the above-captioned docket ("Primary Order") was issued on
January 3, 2014, and amended pursuant to a prior government motion on February 5, 2014. As
part of the minimization procedures adopted pursuant to 50 U.S.C. § 186I(c)(l), (g), the Primary
Order requires the National Security Agency (NSA) to destroy call detail records or telephony
metadata (hereinafter "BR metadata") produced to NSA by certain telecommunications carriers
no later than five years after its initial production. See Primary Order subparagraph (3)(E) at 14.
On February 25, 2014, the government submitted a motion for a second amendment to
the Primary Order in the above-captioned docket ("February 25 Motion"). The February 25
Motion sought to amend the minimization procedures in the Primary Order to retain BR metadata

for longer than five years in furtherance of its potential obligation to retain evidence possibly
relevant to pending civil litigation, subject to further restrictions on access and use. February 25
Motion at 3-8.
On March 7, 2014, the Court issued an Opinion and Order that denied the February 25
Motion without prejudice ("March 7 Opinion and Order''). The Court rejected the government's
premise that the common law obligation to preserve evidence that is potentially relevant to civil
litigation superseded requirements to destroy infonnation under provisions of FISC orders that
were adopted pursuant to 50 U.S.C. § 186I(c)(l), (g). March 7 Opinion and Order at 3-4. The
Court accordingly analyzed the government's proposed amendments under those statutory
minimization requirements. The Court found that, on the record then before it, the government's
proposal did not satisfy those requirements. Id. at 4-12. The Court concluded that any interests
the civil plaintiffs might assert in preserving all of the BR metadata was "unsubstantiated" on
that record. Id. at 8. The Court further observed that
no District Court or Circuit Court of Appeals has entered a preservation order
applicable to the BR metadata in question in any of the civil matters cited in the
motion. Further, there is no indication that any of the plaintiffs have sought
discovery of this infonnation or made any effort to have it preserved, despite it
being a matter of public record that BR metadata is routinely destroyed after five
years.
Id. at 8-9 (citations omitted). Further, while acknowledging that "questions ofrelevance are
ultimately matters for the courts entertaining the civil litigation to resolve," id. at IO, the Court
was unpersuaded by the government's assertion that the entire, voluminous set of BR metadata
needed to be preserved for the civil litigation, particularly in view of the fact that the plaintiffs in
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the civil matters, as described by the government, generally sought destruction of the BR
metadata. Id. at 9-10.
As noted above, the Court denied the February 25 Motion without prejudice, stating that
the government may bring "another motion providing additional facts or legal analysis, or
seeking a modified amendment to the existing minimization procedures." Id. at 12.
The March 11 Notice and Motion provides such additional facts. 1 On March 7, 2014,
subsequent to the issuance of the March 7 Opinion and Order, the government began to notify the
plaintiffs in the civil matters identified in the February 25 Motion, as well as the courts in which
those matters are pending, of the March 7 Opinion and Order and of the government's intention
''to commence complying with the applicable destruction requirements" on March 11, 2014.
March 11 Notice and Motion at 5. 2 One of those civil matters is First Unitarian Church v.
National Security Agency, No. 3:13-cv-2387 (JSW) (N.D. Cal.). On March 10, 2014, the
plaintiffs in that matter, and those in a related case also pending before the District Court for the
Northern District of California- Jewel v. National Security Agency, No. C 08-04373-JSW (N.D.
Cal.) - sought temporary restraining orders from that District Court against the destruction of any
1 On March 10, 2014, a Motion of Plaintiffs in Jewel v. NSA and in First Unitarian
Church v. NSA for Leave to Correct the Record, together with a supporting declaration, was
submitted in the above-captioned docket. (The motion is available at:
http://www.uscourts.gov/uscourts/courts/fisc/brl 4-01-motion-140311.pdf and the declaration is
available at: http://www.uscourts.gov/uscourts/courts/fisc/brl 4-01-declaration-14031 1.pdf.)
Those movants seek to add to the record additional infonnation addressing the need to preserve
at least some BR metadata in connection with pending civil matters. The Court will rule on this
motion separately.
2 This Court's March 7 Opinion and Order noted that the government could notify the
plaintiffs and the district courts of the pending destruction of BR metadata. March 7 Opinion
and Order at 11.
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BR metadata. March 11 Notice and Motion at 5 and Exhibits A and B thereto. The District
Court issued a temporary restraining order ("March 11 TRO") in both matters on the same date.
March 11 Notice and Motion at 6 and Exhibit C thereto. The March 11 TRO prohibits the
Government defendants "from destroying any potential evidence relevant to the claims at issue
... , including but not limited to ... any telephone metadata or 'call detail' records," pending
further order of that District Court. March 11 Notice and Motion at 6 and March 11 TRO at 2.
The March 11 TRO also established a schedule for further consideration of these preservation
issues, with briefing by the government and the plaintiffs to be completed by March 18, 2014,
and a hearing set for March 19, 2014. March 11 Notice and Motion at 6 and March 11 TRO at 2.
These intervening developments fundamentally alter premises on which the March 7,
2014 Opinion and Order was based. 3 It is now apparent that some civil plaintiffs actively seek to
preserve the BR metadata as potentially relevant to their claims. What is more, by issuing the
March 11 TRO, the District Court has directly prohibited NSA from doing what the FISC has
ordered it to do - namely, destroy BR metadata no later than five years from when it was initially
produced. These conflicting directives from federal courts put the government in an untenable
position and are likely to lead to uncertainty and confusion among all concerned about the status
of BR metadata that was acquired more than five years ago.
3 There appears to be a dispute between the government and the plaintiffs in Jewel and
First Unitarian Church about whether prior preservation orders issued by the District Court for
the Northern District of California encompass call detail records produced to the NSA pursuant
to FISC orders under 50 U.S.C. § 1861. See, ~' Exhibit A to the March 11 Notice and Motion
(Jewel v. National Security Agency, No. C 08-04373-JSW (N.D. Cal.), Plaintiffs' Notice of Ex
Parte Motion and Ex Parte Motion for a Temporary Restraining Order to Prevent the
Government from Destroying Evidence, filed on March 10, 2014, at 2-3 and Exhibit E thereto
(exchange of emails between counsel for the government and the plaintiffs)). That dispute is a
matter for the District Court to resolve.
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The March 11 TRO also demonstrates that the District Court for the Northern District of
California intends to hear more from the parties in Jewel and First Unitarian Church regarding
preservation of BR metadata for purposes of that litigation. See March 11 TRO at I ("A
temporary restraining order is necessary and appropriate in order to allow the Court to decide
whether the evidence should be preserved with the benefit of full briefing and participation by all
parties."). As already noted, it is appropriate for that District Court, rather than the FISC, to
determine what BR metadata is relevant to that litigation.
For the foregoing reasons, the government's motion for temporary relief from the five-
year destruction rule is granted. In one respect, however, the Court modifies the government's
proposed "conditions" for such relief. See March 11 Notice and Motion at 7-8.
One of the conditions proposed by the government states: "Should any further accesses to
the BR metadata be required for civil litigation purposes, such accesses will occur only following
prior written notice specifically describing the nature of and reason for the access, and the
approval of the Court." Id. at 8 (emphasis added). The Court declines to adopt the underscored
language requiring prior FISC approval. It appears unnecessary, and probably ill-advised, to put
the FISC in the position of approving or disapproving actions the government, as a civil litigant,
proposes to take, Y:., to respond to specific discovery requests or to particular inquiries made by
the court before which a civil matter is pending. While accessing or using the BR metadata for
civil litigation purposes can implicate the privacy interests of United States persons, the other
interests and considerations likely to be implicated - such as fairness to the civil plaintiffs,
relevance of the information sought, and burden placed on the government - are tangential at best
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to the pwposes of minimization under Section 1861. They are, however, proper considerations
for the court before which the civil litigation is pending. 4
Accordingly, it is HEREBY ORDERED that the government's motion for temporary
relief from the five-year destruction requirement is GRANTED AS FOLLOWS:
( 1) Pending resolution of the preservation issues raised by the plaintiffs in Jewel and First
Unitarian Church before the United States District Court for the Northern District of California,
BR metadata otherwise required to be destroyed under the five-year limitation on retention
specified in subparagraph (3)(E) of the Primary Order issued in the above-captioned docket, as
amended, may be preserved and/or stored in a format that precludes any access or use by NSA
intelligence analysts for any purpose, including to conduct contact chaining queries of the BR
metadata approved under the applicable "reasonable, articulable suspicion" standard5 for the
purpose of obtaining foreign intelligence information, and subject to the following additional
conditions:
(a) NSA technical personnel may access the BR metadata subject to this Order
only for the purpose of ensuring continued compliance with the government's preservation
4 In contrast, having the government merely provide the FISC with written notice of such
accesses to the BR metadata does not present the same concerns and may be helpful in keeping
the FISC informed of developments that are relevant to its role in determining and enforcing
compliance with the minimization procedures, see 50 U.S.C. § l 803(h), and in assessing the
continued adequacy of those procedures in the event of a future application to continue bulk
production of BR metadata under Section 1861.
s See No. BR 14-01, Order Granting the Government's Motion to Amend the Court's
Primary Order Dated January 3, 2014, at 3-9 (FISA Ct. Feb. 5, 2014) (available at:
http://www.uscourts.gov/uscourts/courts/fisc/br14-01-order.pdf).
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obligations to include taking reasonable steps designed to ensure appropriate continued
preservation and/or storage, as well as the continued integrity of the BR metadata; and
(b) Should any further accesses to the BR metadata be required for civil litigation
purposes, such accesses shall occur only following prior written notice to the FISC specifically
describing the nature of and reason for the access.
(2) The government shall promptly notify the FISC of any additional material
developments in civil litigation pertaining to the BR metadata, including upon resolution of the
temporary restraining order proceedings in the Northern District of California.
(3) All other provisions of the Primary Order in the above-captioned docket, as amended
on February 5, 2014, shall remain in effect.
SO ORDERED, this~yofMarch, 2014, in Docket Number BR 14-01.
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Presiding Judge, United States Foreign
Intelligence Surveillance Court