Table Of ContentUS. Department Junie SF 6-spy
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rion Security Dison :
Wastogen BC 20580
April 9, 2084
‘The Honorable Reggie B. Walton
Presiding /udge
CChited States Foreign Intoligence Surveillance Covtt
CS. Courthouse
333 Constitution Avenue, N.W.
‘Washington, D.C. 20001
Re: Rule 13(6) Notice, Docket Number BR 14-01 and Prior Related Dockets
ear Judye Walton:
“Through the Goverament’s February 25,2014 Motion for Second Amendment Primary
(Order and subsequent March 11, 2014 Motion for Temporary Reet from Subparsereph (3)E of
Primary Orde, the Government eadenvored to reconcile its ablgation ta destroy certain call
det cords oc telephony metadata (BR metiats after five years with obligations to preserve
‘information relevant to issues raised in cela pending civil Htigtion. Despite the
Governments best effors to navigate those conflicting obligations, between March 5, 2014 aud
March 12, 2014, the dat this Court issued an Opinion and Onder grating the Goveruent's
motion for temporary relief, dhe Govecumaat retained (and continues to retain) eesain BR
metadata beyond the five-year retention period authorized by this Court solely for nonanalytic
purposes under strict conditions” As a rasuit ofthis Court’s March 12, 2014 Opinion and Order,
the Govemment’s obligations donot conflict at his Gine. Consistent wth that Opinion and
Orde, the Government continues tn retain BR metadala under very sic aoeess cnimols
approved by the Court
» subparagraph ()E of thls Court's Primary Order entered in Docket Number 8X 16-01 and prior elated
es that BK metadata he destroyed mo later than five years (60 months) ater isin
* Mare specifically, the relevant BR mactadan subject to destaction beginning Match St was preserved
anor sored In 9 foveal tat precluded any access or use by NSA intallgence analysts fot ay purpose,
[NSA technical personnel could acaasthe reevant BI mctadata only forthe purpose of taking reazonable
‘taps designed to ensure appropriate continued preservation and/or starage,s¢ well ¢ the continued,
integrity ofthe BR metadata,
‘On January 3, 2014, the Honorable Thomas F. Hogan of this Court issued orders in
docket number BR 14-01 requiring the production tothe NSA of BR metadata created by certain
specified telecommunicatians providers. Subparagraph (3)E of the Primary Order requircd that
“BR metadata be destroyed no later than five years {60 months) aftr its inital vollection.”
‘Over the course ol the las several months, certain plaintiffs have filed civil actions
against various Government agencies and officials challenging the legality of, among other
things, the Government's collection of BR metadata pursuant to docket number BR [4.01 and
prior rlated dockets. Those matters arc curently pending before various Unieed States District
‘Cours ot United States Courts of Appeals. Bascd upon the issucs raised in those pending
lswsuils, tho Govemment seessed Int it had a duty to preserve relevant information thet may
‘constituio evidence in thoxe euses, which Ihe Government assessed might include BR metadata
previously aequited under this Cours orders.
To ensure compliance with relevant prosevation obligations and recognizing that certain
BR metadata would be subject lo desirution beyinning on March 5, 2014, on Februsty 25, 2014,
the Government fled a motion with this Court seeking to amend the January 32014, Primary
Order to authorize the retenion of BR metadeta beyond five yeare. On Much ?, 2014, tis
‘Court issued an Opinion and Order tat denied the Goveroment’s motion, without prejudice,
‘During the Cours consideration of the Government's motion, the BR mctadala subject
destruction beginning on March S* was nat destroyed, bu rather, retained for non-analytic
purposes under the srct conditions described above, ‘pon recip ofthe Court's March 7, 2014
Opinion md Onder, the Government began notifying plant in the civil actions thal i intended
to commence complying with his Court's destruction order on March (1, 2014, Plitifls in
First Unitarian Church of Ls Angeles eal v. National Security Agency, ef a, No-C 3
(03287-I8W (NLD. Cal.) and Jewel». NS4, No. C 08-04373-JSW (NLD. Cal), sought temporary
restraining orders fom the United States District Court forthe Northen District of California
aginst the destruction of any BR mntndata, On March 10, 2014, tho district eourt ised a
temporary restininy ender both matlers_ In response Uo tne discetcourt's oer, en Murch
1, 2014, the Goversmeat filed a motion for temporary relief from this Court's destruction order
On March 12, 2014 this Court granted the Government's motion and temporarily authoriaed the
Government fo retsin BR inetadata afer the five-year limitation in subparagcaph (3)E of the
Primary Order in docket manter BR 14-01 pending resolution ofthe preservation ligation in
the Norther Distro of California, xd, subject to very srct access contol an solely forthe
specific and limited purpose of meeting its preservation obligations?
(On March 5, 2014, certain of the BR metadata retained by NSA reached the five your
limit for retention and, therefore, was subject 10 the Cout’s destruction order. However, as
result ofthe stops the Government took to ensure compliance with relevant preservation
“obligations, lhe Govemment had suspended the destruction of this metadata while awaiting the
‘Court's ruling on the Government's February 25, 2014, motion. Upon receipt of the Mareh 7
‘Opinion and Order denying that motion, the Government picpared to commence compliance
3 As described in a governments Notice led March 27,2014, ia dackec umber BR 14-0, tho dia ous entered.
an onor an Marah 21,2014, ix Fst Untavion Crh of Ls Angus ennoweing preseertion ie hich tn
‘Goverment bas determined tha bse frther rei fom the cet 2, anesiaes ha presseaicn of BR
otadta bajo Ove year (60 mn} ater til election The teroeney tenn ern emo 0
fee. ALabeasing ox Marc 19,2014 she disc cour directed Us the partes in Zee complete bee biting 20 Be
‘question ef he govaramentscompliqne withthe Die Coun prior prssration order by Tone 12,2014,
\sith the Cours dastruation order on March 11,2014. On March 10, 2014, the United Stetes
District Court forthe Northern District of California issued a temporory restralning order against
that destruction. As a result, between March 5, 2014, and March 12, 2014, when this Court
_gfanted the Govermnent’s ation for temporary elif, the Govorament had retained (and
‘continues to rain) certain BR metadata beyond the period suthorized by the Court.
ALL BR metadata that has reached the five year Limit for retention and is subjeot to
<estruction hus beon and will continue to be preserved , subject lathe conditions and
requirements stafed in this Cout’s March 12, 2014, Opinion and Order, including being,
preserved undlor stored ie a format that prectudes any access or use by NSA intelligence analysts
lo conduet RAS-appreved contact chaining queries of the BR metadata forthe purpose of
‘Ubluining foreign intelligence infoomation orto aceess the BR metadata for any other purpose.
[NSA technical personnel wil aecess BR metadata thal is aubjeo! to destruction only For the
purpose of taking reasonable steps designed to ensure approprinle eoatinued preservation and/or
storage, as well asthe continued integrity of the BR metadata.
‘The Goveroment will provide the Court with periodic updates regarding its rotention of
BR metadata beyond the five-year petiod specified in subparagraph (3)E of the Primary Order.
Respectfully submited,
Kin bb?
‘Tashina Gauhar
Deputy Assistant Attomey Goneral
