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UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. IN RE APPLICATION OF THE FEDERAL SUREAU OF INVESTIGATION FOR Docket Nunaber: BR 14-01 ‘AN ORDER REQUIRING THE PRODUCTION (OF TANGIBLE THINGS OPINION AND ORDER, ‘This materi before the United States Foreign Intelligence Surveiliance Court (FISC” ‘or Coun”) on the government's Notice of Entry of Temporary Restraining Order Against she ‘United States and Motion for Temporary Relief from Subparagraph (3)(B) of Primary Order, filed on March 11, 2014 ("March L] Notice and Motion’, For reasons explained berein, the government's request for temporary relief is granted, subject to a medification to the conditions proposed by the government. ‘The Primary Order in the above-captioned docket (‘Primary Onder") was issued on Janvary 3, 2014, and amended pursuant ton prior government motion on February 5, 2014. As part of the minimization procedures adopted pursuant io $0 U.S.C. § 1861(c)(1), (a) the Primary ‘Order requites the National Security Agency (NSA) te destroy call deal records or telephony ‘metadata (hereinafter “BR metadata’) produced to NSA by certain (clecommunications cerriess ‘no later than five yeats aftr its initial production. See Primary Order subparagraph (3)(E) at 1. (On Fetmuary 25,2014, the government submited a motion fr a necond amensiment to ‘tho Primary Ont in the above-captioned ocket (“February 25 Motion"), The February 25 ‘Motion sought to amend the minimization procedures inthe Primary Order to retain BR roetwdata for longer than five yom in furtherance oft poteial obligation to etn evidence possibly relevant o pending cil tigntio, subject to further restrictions on eceas and us. February 25 Motion a 38 ‘On March 7, 2014, the Court isved an Opinion ad Order tnt deuied the February 25 Motion withou prejudice (‘March 7 Opinion and Orde). The Court rejected the govomment’s ree th the cominon Taw obligation o preserve evidence that is potently eleva to iv Utigation superseded requirements to destoy information under provisions of FISC rders that ‘were adopted pursuant 0 50 U.S.C. § INBHEXL) (g). March 7 Opinion end Onder a 3-4, The Court accordingly analyze the government's proposed amndinents under ese slattory rinimizaton requieatents, The Court found tat on ie record thea before tthe government's proposal didnot sls those requirements. Jf, at 4-12. The Court concluded thet ny interests ‘he evil pli night assert in preserving al of the BR metadata was “unsubstantiated” on tbat record. [dat 8. The Court further observed hat 1 District Court or Cirenit Court af Appeals as etared a preservation oner spploable tothe BR metadstain question in uny ofthe civil mater ted inthe ‘notion, Pair, tere sno indication hat any ofthe plans have sowght <lssovery of tis information or made any ff to have it preserved, despite t being a matter of public recor! that BR metadate is routinely destroyed after five vars. ‘1d. 89 (citations omined). Further, while acknowledging that “questions of relevance are ultimately mattrs for the courts cutentaining Ife civil litigation to resolve,” id, at 10, the Court ‘as unpersuaded by the governmeat’s assertion that the entire, voluminous éct of BR metadata _nveded to be preserved forthe civil ligation, particularly in view of the fat that the paint the civil matters, as described by the government, generally sought destruction of the BR ‘metadata, id, at 9-10 Asnofed above, the Court denied the Febrnary 25 Motion without prejudice, stating that {he govemmeut may bring “another motion providing additional facts or legal analysis, or seeking « modified amendment to the existing minimization procedures.” W. at 12, ‘The March 1 Noties and Motion provides such additional facts" On Merch 7, 2014, subsequent to the issuance of the March ? Opinion and Order, the government began to notify the plaints in the civil matters identified in the February 25 Motion, as well as the courts in which ‘those matters arc pending, of the Match 7 Opinion and Order and of the governments intention “to commence complying with the applicable destruction requirements” om March 11, 2014, March 11 Notice and Motion at 5.’ Oue of those civil matters is Fist Unitarian Church National Security Agen, No. 3:13-¢v-2387 (ISW}(N.D. Cal.). On Marsh 10, 2014, the plaintiffs in that matter, and thosc in a related cuse also pending before the Distriet Court for the Northern District of Califomnia — Jewel v, National Security Agenoy, No. C 08-4373-ISW (ND. Cal.) sought temporary restraining orders from that District Court against the destruction of any * On March 10, 2014, a Motion of Plaintifis in Jewel v. NSA and in Fist Unitarian ‘Church v. NSA for Leave to Correct the Record, together with ¢ supporting declaration, was submited in the above-captioned docket, (The motion is available haps ww scouts govtuscourtscourts/Tise/br1 4-01 -motion-14031 pdf aud the declaration is available at: fnip//wwy .sscourts.govinscourta/coursMfsc/br14-O1-declavation-1403 1].pdf) ‘Those movants seek to add to the record additional information addressing the need to preserve atleast some BR metadata in connection with pending civil matters. The Court will rae on this motion separately, } This Court's March 7 Opinion aod Onder noted tht the government could notify the plaimifts and the district courts ofthe pending destruction of BR metadsia. March 7 Opinion and Order at 11 BR metadsta, March 11 Notice amd Motion at $ and Exhibits A and B therelo, The District Court istued a temporary resteining 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 *itom destroying any potential evidence relevant to the claims at issue {including but not limited to... any telephone metadata o ‘cat detai)* records,” pending further order ofthat District Court. March 11 Notice and Motion at 6 and March 1 TRO at ‘The Mazeh 11 TRO also established a schedule for further consideration of these preservation ‘scues, with briefing by the government amd 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 |} TRO at 2 ‘Theae intervening developments fundamentally alter premises on which the March 7, 2014 Opinion and Order was based. 1t is now apparent that some civil plaintiffs actively seek ta preserve the BR metadata as potentially relevant to their claims, What is more by issuing the March 11 TRO, the District Court has diteely prohibited NSA from doing what the FISC’ has ‘ordered it fo do — namely, destroy BR metadata no later than five years From when it was initially produced, These conflicting directives from federal courts put the goverment in an untenable position and are likely 0 lead to uncertainty and confusion among all concemed about the status ‘OF BR metadata that was acquited more than five years ago. 3 “There appears to be a dispute between the government 2nd the plaintiffs in Lowel and. ‘Bits Unitarian Church about whether prior preservation orders issued by the District Court for the Norther District of California encompass call detail records produced to the NSA pursuant to FISC orders under 50 U.S.C. § 1861. Sex, gt Exhibit A to the Maret 11 Notice and Mfocion (Qewel v. Nasional Security Agency, No, © 08-04373-ISW (NLD. Cal), Plaintiffs" Notice of Ex Parte Motion and Ex Parte Movion for a Temporary Restraining Order to Prevent the Goverment from Destroying Evidcace, filed on Barc 10, 2014, at 2-3 nd Exhibit E thereto (xchange of emails between counsel forte goverament abd the plantfi), That dispute is @ matter fir he District Court to resalve “The March 1 TRO also demonsrstes bat he District Court for the Norther District of California intends to heae more from the parties in ewe and Fin Unitarian Church regarding preservation of BR metadata for purposes of that ignon, Soe March 11 TRO at | (A teraporay restraining oder i necessary and appropriate in order to allow the Court wo decide beter te evidence shouldbe preserved with the Benefit of Fl being and participation by all partics."). As already nvted, is appropriate for that District Cour, rather than the FISC, to determine what BR metadzia is relevant to that ligation For the fovegoing seasons, the government's motion for temporary relief from the five= year destruction rule is granted. Tn one respect, however, the Court modifies the government's ‘proposed “conditions” for such relief, See March I 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 aecesses will occur only following prior written notice specifically describing the nature of and reason for the access ad the approve of the Court” Id, at (emphasis added). The Court destines to adopt the underscored language requiting prior FISC approval. It appears unnccescary, and probably ill advised, to pat (he FISC in the position of anproving or disapproving actions the government, asa civil litigant, Proposes ta take, gz, to respond to specific discovery requests oF to particular inquires made by the court before which a civil matter is pending While accessing or using tke BR metadata for civil ltigetion purposes ean implicate the privacy interests of United States persons, the other interests and consideratione likely ta be implicated — such as faimess tothe civil plaintiffs, relevance of the information sought, and burden placed on the government are tangential at boat (othe purposes of minimization under Section 1861. They are, however, proper considerations for the court before which the civil litigation is pending.* Accordingly itis HEREBY ORDERED that the government's motion for temporary elif from the five-year destruction requirement is GRANTED AS FOLLOWS: (1) Pending resolution of the preservation issues raised by the plaintiffs in Jewel und 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)(5) ofthe Primary Oner issued in the above-captioned docket, es amended, may be preserved andior stored ina format that precludes any access or use by NSA {telligence anaIysts for any porpose, including to conduet contact cheining qucris of the BR. ‘metadata approved under the applicable “reasonable, articulable suspicion” standard? forthe purpose of obtaining foreign intelligence information, and subject to the following additional conditions: (@) NSA technical personnel may woocss the BR metadata subjoct to this Order ‘only forthe purpose of ensuring continued compliance with the government's preservation, * In contrast, having the goverament mcrcly provide the FISC with written notice of such sscorsses to the BR metadata does not present the same cancers and may be helpful in keeping the FISC informed of developments that are relevant 10 its role in deteratining and enforcing compliance sith the minimization procedures, see 50 U.S.C. § 1803(h), and in assessing the continued adequavy of those procedures inthe evest ofa future application to continue bulk production of BR metadata under Section 186 * See No. BR 14-01, Onder Granting the Government's Motion to Amend the Court's Primary Onder Dated January 3, 2014, at 3-9 (FISA Cr. Feb. 5, 2014) (availabe at: itp wonv.uscourts.gov/uscounts(courts isbn] 4-01 -onder. pat). 6 obligations to include taking reasonable steps designed to ensure sppropriate continued preservation and/or storage, ag well as the continued intcgrity of the BR metadata; and (©) Should any further accesses to the BR metadata be required for chs litigation Purposes, such accesses shall occ ony fellowing prior writen notice (othe FISC specifically describing the atu of and reason forthe acces. (2) The government shall promptly noify the FISC of any addtional materi <evelopments in civil itgation pertaining othe BR meant, including upon resoluson of the temporary restraining order proceedings inthe Northem District of Califomia, (3) All other provisans of the Primary Onder inthe above-captioned docket, as acended on February 5, 2024 hall main in ffs. ‘50 ORDERED, thisf}'ih day of March, 2014, in Docket Number BR 14,01. Presiding Judye, United States Foreign Intelligence Surveiltance Court