Foreign Intelligence Surveillance Act Court Orders 1979-2017
FISA Application and Order Statistics
FISA National Security Letters and Business Record Orders
|Year||NSLs Concerning U.S. Persons1||U.S. Persons|
Identified in NSLs
|Business Record “215” Applications||215 Applications|
Modified by FISC
|Combined 215 + PR/TT|
|Year||Number of FISA|
|Number of FISA|
|Number of FISA|
|Number of FISA|
|Year||FISA Pen Register Applications||Applications Modified by FISC||Applications Rejected by the FISC||US Persons Targeted for Pen Registers|
1. National Security Letters (NSLs) are extraordinary search procedures giving the FBI the power to compel the disclosure of customer records held by banks, telephone companies, Internet Service Providers, and others. In 2001, the FBI’s authority to issue National Security Letters was significantly expanded by Section 505 of the Patriot Act, primarily by lowering the threshold in which NSLs may be issued.
Under the Patriot Reauthorization Act of 2005, the FBI is required to report to Congress on the number of NSLs issued and the Department of Justice Office of the Inspector General (OIG) is required to review “the effectiveness and use, including any improper or illegal use, of national security letters issued by the Department of Justice.” The OIG released its first report, covering calendar years 2003 through 2005, on March 9, 2007. The report detailed significant violations of law and regulations by the FBI in its use of its national security letter authority.
In 2007 the OIG found that the FBI had underreported the number of NSLs issued in the past. In the 2007 General Report of the Office of the Inspector General, the numbers for the years 2003-2005, previously reported in other sources, were examined and re-released. For these years only, the numbers of NSL requests reported to Congress relating to U.S. Persons are taken from the General Report, and not the annual reports. Note that the Modified numbers do not include NSL requests that do not identify if the request is seeking information related to a U.S. person or a non-U.S. person.
2. The calendar year of 1980 was the first full year that FISA had been in effect. Hence, 1979 does not reflect a complete calendar year.
3. No orders were entered which modified or denied the requested authority, except one case in which the Court modified a FISA order and authorized an activity for which court authority had not been requested.
4. In one case, although satisfied as to the probable cause to believe the target to be an agent of a foreign power, the court declined to approve the FISA application as plead for other reasons, and gave the government leave to amend the application. The government has filed a motion to withdraw that case as it has become moot.
5. One FISA application filed in 1999 was pending before the Court until March 29, 2000, when it was approved. Five FISA applications which were filed in late December 1999 were approved when presented to the Court on January 5, 2000.
6. The Court approved 1003 of these FISA applications in 2000. Two of the 1005 FISA applications were filed with the Foreign Intelligence Surveillance Court in December 2000 and approved in January 2001. Nine FISA applications were filed with the Foreign Intelligence Surveillance Court in calendar year 1999 and approved in calendar year 2000. Thus, the Foreign Intelligence Surveillance Court approved 1012 FISA applications in calendar year 2000. Also, one order was modified by the Court. No orders were entered which denied the requested authority.
7. Two of the 934 FISA applications were filed with the Foreign Intelligence Surveillance Court in December 2000 and approved in January 2001. Also, two FISA orders and two warrants were modified by the Court. No FISA orders were entered which denied the requested authority.
8. The Court initially approved 1226 FISA applications in 2002. Two FISA applications were “approved as modified,” and the United States appealed these applications to the Foreign Intelligence Surveillance Court of Review, as applications having been denied in part. On November 18, 2002, the Court of Review issued a judgment that “ordered and adjudged that the motions for review be granted, the challenged portions of the orders on review be reversed, the Foreign Intelligence Surveillance Court’s Rule 11 be vacated, and the cases be remanded with instructions to grant the United States’ applications as submitted…”
9. The United States did not appeal any of the Court’s four denials. However, the 2003 FISA report provides additional information about two of the four FISA applications denied:
In 2003, the Court made substantive modifications to the United States’ proposed orders in 79 FISA applications. For notes on NSL numbers, please reference footnote 1.
10. The United States withdrew three of its 1,758 FISA applications before the Court ruled on them. The United States then resubmitted one of these applications, which was approved by the Court as a new application. One of the 1,758 FISA applications made to the Court was approved in 2003 and received a docket number in 2004. In 2004, the Court made substantive modifications to the United States’ proposed orders in 94 FISA applications. For notes on NSL numbers, please reference footnote 1.
11. The United States withdrew two of its FISA applications before the Court ruled on them. The United States then resubmitted one of these applications, which was approved by the Court as a new application. In 2005, the Court made substantive modifications to the United States’ proposed orders in 61 FISA applications. For notes on NSL numbers, please reference footnote 1.
12. The United States withdrew five FISA applications before the Court ruled on them. One of these was resubmitted as a new FISA application. In 2006, the Court denied in part one FISA application. The Court made substantive modifications to the United States’ proposed orders in 73 FISA applications.
Although the FBI expended significant resources to identify and correct errors in its NSL database, 2006 statistics are considered approximate.
13. In 2007 the Court denied 3 FISA applications and one FISA application in part. Two FISA applications filed in 2006 were not approved until 2007. During 2007 the Court made substantive modifications to proposed orders in 86 FISA applications.
In addition to NSLs that were issued in the ordinary course of its national security investigations, in 2007 and 2008 the FBI issued corrective NSLs, outside the ordinary course, which cause an anomaly in the historic trend of persons concerned by the NSLs. This trend is discussed at length in the 2008 Annual Report. Though 2007 NSL numbers underwent significant review, most figures were derived from manual input and there is possibility for error.
14. Two FISA applications filed in calendar-year 2007 were not approved until calendar-year 2008. Substantive modifications were made to two FISA applications before approval.
In addition to NSLs that were issued in the ordinary course of its national security investigations, in 2007 and 2008 the FBI issued corrective NSLs. All but one of the corrective NSLs , obtained prior to 2008, were issued in 2008 in order to provide legal authority for the FBI to retain records that had previously been provided by communications service providers. This topic is discussed at length in the 2008 Annual Report. Also note that 2008 was the first full year that the FBI used a new NSL subsystem to automatically tally data points necessary for accurate and timely Congressional reporting.
15. Beginning in 2009, the annual FISA reports specified the number of applications and orders for electronic surveillance (as opposed to physical searches), so the statistics included in the chart for every year after 2009 do not include physical search applications. In 2009, the government submitted 1,376 applications including those for physical searches. Eight FISA applications were withdrawn by the government prior to a decision. One FISA application was denied in whole, one FISA application was denied in part. Modifications were made to 14 FISA applications prior to approval.
16. The government filed a total of 1,856 applications for FISA surveillance (electronic surveillance and physical searches) in 2012. One FISA application was withdrawn by the government prior to a decision. Modifications were made to 40 FISA applications prior to approval, including one application from 2011.
17. In his April 4, 2005 testimony before the Senate Judiciary Committee, Attorney General Gonzales noted that the Justice Department was increasingly using business records orders to obtain subscriber information, such as names and addresses, for telephone numbers captured through court-ordered pen register or trap and trace devices. This information is routinely obtained in criminal investigations. The use of business records requests in conjunction with pen register applications accounts for much of the increase in the number of business records orders reported here as compared to statistics previously made public. Section 128 of the USA PATRIOT Improvement and Reauthorization Act specifically amended the pen register provisions of the FISA statute (50 U.S.C. 1842) to authorize the disclosure of subscriber information in connection with such court-authorized collection. We expect that this new provision will result in a decrease in the number of requests for business records orders that are reported in the future.
18. Beginning with the 1995 reporting period, the annual FISA reports include the combined number of FISA applications and orders for electronic surveillance and physical searches. The reports did not specify the number of electronic surveillance FISA orders until 2009.
19. The government filed a total of 1,579 applications for FISA surveillance (electronic surveillance and physical searches) in 2010.
20. The government filed a total of 1,745 applications for FISA surveillance (electronic surveillance and physical searches) in 2011.
21. The government filed a total of 1,655 applications for FISA surveillance (electronic surveillance and physical searches) in 2013.
22. This number excludes requests for subscriber information only. Following the enactment of the USA FREEDOM Act, the annual reports now contain more detailed and extensive NSL statistics. The report specifies that the FBI made 7,361 MSL requests for information concerning only subscriber information for U.S. persons and non-U.S. persons. These sought information pertaining to 3,347 persons. The report also specifies that the FBI made 31,863 requests (excluding requests for subscriber information only) for information concerning non-U.S. persons. These sought information pertaining to 2,053 different non-U.S. persons.
The FBI acknowledges that it may over-report the number of persons about whom it obtained information using National Security Letters because NSLs that are issued concerning the same person and that include different spellings of that person’s name would be counted as concerning two separate persons.
23. One application made by the Government after the effective date of the business records provisions of the USA FREEDOM Act did not specifically identify an individual, account, or personal device as the specified selection term. The FISC did not modify the proposed orders in this one application for access to business records. Separately, the FISC did not direct additional, particularized minimization procedures beyond those adopted pursuant to section 1861(g) to the proposed orders in applications made by the Government after the effective date of the business records provisions of the USA FREEDOM Act.
Notably, the definition of “specific selection term” for obtaining an order for the production of tangible things is “a term that specifically identifies a person, account, address, or personal device, or any other specific identifier.” 50 U.S.C. § 1861(k), whereas the definition of “specific selection term” for the reporting requirement encompasses a smaller group of terms, to include only “an individual, account, or personal device.” 50 U.S.C. § 1862(c)(1)(C). Thus, the reporting requirement mandates inclusion in this report of certain requests that otherwise meet the definition of specific selection term in 50 U.S.C. § 1861(k). For example, the reporting requirement mandates inclusion of requests in which the specific selection term was an “address.”
24. The government filed a total of 1,416 applications for FISA surveillance (electronic surveillance and physical searches) in 2014.
25. The government filed a total of 1,499 applications for FISA surveillance (electronic surveillance and physical searches) in 2015.
26. The government filed a total of 1,485 applications for FISA surveillance (electronic surveillance and physical searches) in 2016. This included 105 electronic surveillance applications, 42 physical search applications, and 1338 combined ES+PS applications.
27. The former chief judge of the FISA Court, Judge Reggie Walton, indicated in a letter to Congress in 2013 that more than 24 percent of FISA warrant request received “substantive” modifications in the wake of the Court’s review. However, these modifications were not reflected in the statistics as of 2013.
28. The report filed after the USA FREEDOM Act was passed reported that the FISC denied 5 applications between June 8, 2015 and December 31, 2015.
29. Beginning with the 2016 FISA letter, EPIC has chosen to report the statistics compiled by the Administrative Office of the U.S. Courts, which are more precise than those collected by the Department of Justice. See FN 30 for notes on the new methodology. These new statistics show the outcomes of “proposed” applications submitted by the DOJ to the FISC, and therefore more fully reflect the FISA review process. But these statistics also include applications for physical searches. It is also likely that in prior years the number of modifications, denials, and withdrawn applications were significantly higher than what the DOJ reported, given the flaws in the old methodology.
30. The Government’s reporting methodology changed significantly in 2016. The letter states that “In addition to reporting statistics based on the number of final filed applications, as has been the Government’s historical practice, this letter also includes for the first time statistics published by the Director of the Administrative Office of the United States Courts (AOUSA). Unlike the Government, the AOUSA reports the number of proposed applications rather than the number of final filed applications. More specifically, Rule 9(a) of the Foreign Intelligence Surveillance Court Rules of Procedure requires the Government to submit proposed applications at least seven days before the Government seeks to have a matter entertained by the FISC. Modifications or withdrawals of applications may occur between the filing of a proposed application and the filing of a final application for a variety of reasons, including the Government modifying a proposed application in response to questions or concerns raised by the Court.
31. The government filed a total of 1,372 applications for FISA surveillance (electronic surveillance and physical searches) in 2017. This included 105 electronic surveillance applications, 33 physical search applications, and 1,235 combined ES+PS applications.
32. This number excludes requests for subscriber information only. Following the enactment of the USA FREEDOM Act, the annual reports now contain more detailed and extensive NSL statistics. The report specifies that the FBI made 9,423 MSL requests for information concerning only subscriber information for U.S. persons and non-U.S. persons. These sought information pertaining to 3,725 persons. The report also specifies that the FBI made 6,651 requests (excluding requests for subscriber information only) for information concerning non-U.S. persons. These sought information pertaining to 2,310 different non-U.S. persons.
33. The DOJ letter states that “the Government filed 124 final applications to the FISC for access to certain business records.” But the AOUSC reported, based on its alternative methodology (explained in FN 30) that “the FISC received 125 proposed applications in 2016 for access to certain business records.”
34. The DOJ and AOUSA do not agree on this figure. The DOJ letter states that the “FISC did not deny, in whole or in part, any such final filed application by the Government during calendar year 2016. The FISC made modifications to one of the proposed orders in a final application for access to business records.” The AOUSA reported that “108 proposed orders were granted, 16 proposed orders were modified, zero proposed applications were denied in part, and one proposed application was denied in full.”