There’s a curious gap in the documents currently posted on the FISC’s public docket — one that suggests the NSA call records program isn’t the only type of bulk collection the government has asked the FISC to reauthorize following the USA Freedom Act’s passage on June 2. It’s an exercise in reading tea leaves at this point, but the gap raises important and unanswered questions about bulk collection programs we still know little about.
In the weeks since the USA Freedom Act became law, the FISC has published a series of filings and orders on its website. Those documents indicate that the government has submitted at least four applications for orders under the post-USA Freedom version of Section 215. One of them, docketed as BR 15-75, is the government’s application to restart the NSA’s bulk call records program. (The “BR” stands for FISA’s “business records” provision, while “15” stands for the year.) Two others, numbered BR 15-77 and BR 15-78, are addressed by Judge Saylor’s opinion concerning the appointment of an amicus curiae and the question of whether Section 215’s brief expiration made gibberish of Congress’ effort to renew the law in the USA Freedom Act. Based on the description in the opinion and the scope of the issues addressed, one can fairly surmise that these are targeted applications for records under Section 215.
But what about the missing BR 15-76?
It’s hard to be certain, but it’s likely that BR 15-76 is an application to restart the phantom CIA bulk financial records program or another undisclosed bulk collection program. Beginning in late 2013, multiple outlets reported on the CIA’s bulk collection of Americans’ international money transfer records from companies like Western Union and Moneygram. Other outlets stated at the time that the CIA program overlapped significantly with efforts to collect “financial transaction data” by both the NSA and the Treasury Department. And according to the New York Times, beyond the CIA program, several officials “said more than one other bulk collection program has yet to come to light.” (There is other evidence of these programs in the ACLU’s FOIA litigation, in which the government identified a set of bulk collection orders dated October 31, 2006, but refused to say more.) Troublingly, none of these programs have ever been publicly acknowledged — not even in the course of a months-long public and congressional debate about how to reform Section 215.
And now it appears, the government may be seeking to restart another one of the very bulk collection programs that many people understood the USA Freedom Act was meant to prohibit.
There are a few reasons to think the missing application relates to one of these still-secret bulk collection programs and is not just another targeted request. First, in issuing the opinion related to BR 15-77 and BR 15-78, the FISC made a deliberate decision to split off the questions it considered no-brainers from the more difficult statutory and constitutional questions raised by the government’s application to renew its bulk call records program in BR 15-75. The legal authority for that program has been deeply undermined by the Second Circuit’s decision in ACLU v. Clapper, and at least based on the public record today, the FISC still has not resolved those questions. But in the meantime, as Judge Saylor’s opinion makes clear, the FISC chose to skip ahead to several subsequent applications that presented only “relatively simple” questions. The FISC’s decision to leave BR 15-76 out of Judge Saylor’s opinion suggests that it involves more complicated questions on par with the bulk call records application — i.e., that it involves a different bulk collection program, one the government wants to restart but the FISC must now analyze more closely.
Second, it’s very unlikely that BR 15-76 is a targeted application that the FISC simply went ahead and silently granted. That’s because the FISC would have had to address the same questions raised by BR 15-77 and BR 15-78 in order to grant virtually any application under Section 215 — namely, which version of Section 215 is currently in effect. The temporary expiration of Section 215 on June 1 left it unclear, at least as a technical matter, what remained of the law when Congress decided to amend it. If the missing application were also a targeted one, why didn’t the FISC resolve this question and announce its decision in the context of that earlier application? The better conclusion is that BR 15-76 isn’t a targeted application at all, but concerns a bulk collection program the government continues to hide from the public.
Now, it’s possible that BR 15-76 is a targeted request that simply got delayed, or was rejected outright, based on some other defect in the government’s application. But, as we know, that doesn’t happen very often in the FISC. Alternatively, it’s possible that the government sought a type of record — such as hotel or car rental records — that was available under even the pre-2001 version of FISA’s business records provision. But, even so, the FISC would have had to determine which version of the law is currently in effect in order to know what type of showing the government was required to make.
The more likely scenario is that the government has asked the FISC to reinstate the CIA’s bulk collection program or one of its still-secret brethren. If that’s right, the public should know about this program. The government’s application goes directly to one of the key questions in the USA Freedom Act debate: whether the legislation would prove effective in halting the bulk collection of Americans’ sensitive information. Perhaps the government is simply seeking to “transition” this program over the coming 180 days, as it has said of its effort to restart the NSA call records program — but of course we don’t know. So long as the government continues to keep the public in the dark about its efforts to collect their data en masse, we can’t judge whether the USA Freedom Act really put an end to bulk collection under Section 215.