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1. (U) The USA Freedom Act CDR Program was Statutorily
Authorized

(U) Beginning in 2006, the FISA court accepted the government’s argument that the
then-existing version of FISA’s business-records provision, known as Section 215, permitted
bulk collection of CDRs. 243 Once the bulk CDR program was revealed to the public, that
interpretation became subject to wider scrutiny. In 2014, the Board’s report on Section 215
concluded that NSA’s bulk telephony program was not statutorily authorized. 244 In May 2015,
the United States Court of Appeals for the Second Circuit reached the same conclusion. 245 The
next month, Congress enacted the USA Freedom Act. 246

(U) Unlike the previous bulk program, CDR collection under the USA Freedom Act
rested unambiguously on statutory authority. By the time the Act was being debated, the details
of the previous bulk program were known publicly. The program had been the subject of
multiple press reports; the President had ordered a review of the program and instructed the
Department of Justice and Director of National Intelligence to make changes to its
implementation; 247 and the Board had released its public report. During the debates themselves,
Congress heard from an array of government officials and interest groups, many of whom
testified to the potential benefits and drawbacks of the program. 248

(U) The resulting statute took clear positions on the issues being debated: It authorized
the government to compel with a court order the production of CDRs “on a daily basis” 249 and to
require the “prompt production of a second set of [CDRs]” based on information produced in

243 (U) See 2014 Board Report at 9 (“In May 2006, the FISC first granted an application by the government to
conduct the telephone records program under Section 215. The government’s application relied heavily on the
reasoning of a 2004 FISA court opinion and order approving the bulk collection of Internet metadata under a
different provision of FISA.” (citing Order, In re Application of the Federal Bureau of Investigation for an Order
Requiring the Production of Tangible Things, No. BR 06-05 (FISA Ct. May 24, 2006); Opinion and Order, No.
PR/TT [redacted] (FISA Ct.)); Pub. L. 107-56, 115 Stat. 272, 287 (2001) (codified at 50 U.S.C. § 1861 (2001)).
244 (U) 2014 Board Report at 168–72. Two of the five Board Members did not concur with this analysis. 2014
Board Report at 209–18.
245 (U) American Civil Liberties Union v. Clapper, 785 F.3d 787, 812 (2d Cir. 2015).
246 (U) Pub. L. No. 114-23, 129 Stat. 268 (2015) (now codified at 50 U.S.C. § 1861 et seq.).
247 (U) See The White House, Presidential Memorandum—Reviewing Our Global Signals Intelligence Collection
and Communications Technologies (Aug. 12, 2013), https://obamawhitehouse.archives.gov/the-press-
office/2013/08/12/presidential-memorandum-reviewing-our-global-signals-intelligence-collec.
248 (U) See Strengthening Privacy Rights and National Security: Oversight of FISA Surveillance Programs, Hearing
before the Committee on the Judiciary, S. Hrg. 113-334 (2013), https://www.intelligence.gov/ic-on-the-record-
database/results/38-hearing-of-the-senate-judiciary-committee-on-strengthening-privacy-rights-and-national-
security-oversight-of-fisa-foreign-intelligence-surveillance-act-surveillance-programs.

249 (U) 50 U.S.C. § 1861(c)(2)(F)(i).

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