Ai Wei Wei Says The US Is Behaving Like China Rather Than A Free Society

FISA Court Says DOJ's Claim That It Can't Reveal Secret Interpretation Of The Law Is Wrong

from the onward dept

Wed, Jun 12th 2013 4:12pm — Mike Masnick

We've written a few times about the EFF's lawsuit against the government, trying to reveal the FISA Court's secret interpretation of the FISA Amendments Act (which is at the core of the NSA surveillance dragnet of all phone record data). The DOJ has warned how this would be the end of the world and, more recently, said that it can't reveal the ruling because the FISA court has said that it must be secret, while an earlier ruling from the FISA court said that the FISA court can't reveal such rulings -- only the DOJ can. The EFF sought clarification, and now the FISA court has more or less said that the DOJ's argument is full of it, and yes, the DOJ can reveal such things without violating the laws protecting FISA court rulings.

The Court disagrees with the Government that FISC Rule 62 prohibits the disclosure of the copies of the FISC Opinion to EFF under FOIA.... The Government contends that Rule 62 has the effect of placing copies of the Opinion in its possession "under this Court's seal."... The term "seal," however, does not appear in Rule 62, and contrary to the Government's contention, Rule 62 neither explicitly nor implicitly places the Government's copies of the Opinion "under seal."

Rule 62 contains four subsections, all of which generally concern the "Release of Court Records," but each address a distinct situation... None of these provisions is applicable here.

This doesn't mean the case is over, but it does mean that the DOJ can no longer use the excuse that even if it's required to disclose the FISC ruling under the FOIA that it can't because FISC rulings are secret under that FISC Rule 62.

Misc 13 01 Opinion Order (PDF)Misc 13 01 Opinion Order (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: doj, fisa, fisa amendments act, foia, secret interpretation
Companies: eff

51 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

gorehound (profile), 12 Jun 2013 @ 4:13pm

Troll The NSA 7PM EST
Everyone post forbidden words now:
Assassination Attack Domestic security Drill Exercise Cops Law enforcement Authorities Disaster assistance Disaster management DNDO (Domestic Nuclear Detection Office) National preparedness Mitigation Prevention Response Chemical spill Suspicious package/device Toxic National laboratory Nuclear facility Nuclear threat Cloud Plume Radiation Radioactive Leak Biological infection (prevent) Chemical burn Biological Epidemic Hazardous material incident
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 4:22pm

I can see the rodents scattering.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 4:25pm

Re: Troll The NSA 7PM EST
Assassination Attack Domestic security Drill Exercise Cops Law enforcement Authorities Disaster assistance Disaster management DNDO (Domestic Nuclear Detection Office) National preparedness Mitigation Prevention Response Chemical spill Suspicious package/device Toxic National laboratory Nuclear facility Nuclear threat Cloud Plume Radiation Radioactive Leak Biological infection (prevent) Chemical burn Biological Epidemic Hazardous material incident
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 12 Jun 2013 @ 4:29pm

MOOOOO!!!!!!!!!!!!

https://www.youtube.com/watch?v=FzX0FV-C4XE

CLUCK CLUCK!!!!!!!!!!!!!

https://www.youtube.com/watch?v=-otQBJuvhqw
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 4:37pm

Re:
This is probably the most important story since 9/11. Techdirt would be foolish not to cover it. And you are foolish for mocking it.

Prance on, jester.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 4:44pm

Re: Troll The NSA 7PM EST
I think mentioning recruting, jihad and bomb were missing from the list.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 4:45pm

Re: Troll The NSA 7PM EST
I think mentioning recruting, jihad and bomb were missing from the list.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 4:45pm

Re: Troll The NSA 7PM EST
It doesn't matter how many of us post those words -- the NSA is busy trying to figure out who this "Milkman Mike" character is, and what kind of terrorist attack "moo! cluck!" is code for.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 4:48pm

Re: Troll The NSA 7PM EST
You forgot Bomb Pressure cooker C4 nitro dynamite
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 4:50pm

Re: Re:
Jesters are funny though.
[ link to this | view in thread ]
Lick Man, 12 Jun 2013 @ 4:53pm

Kid Gloves
When are "reporters" going to take off the kid gloves with this administration? They are treating Obama/Holder like they are untouchable...

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character."
Martin Luther King, Jr.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 5:11pm

Re: Kid Gloves
Remember that revolving door between MPAA and government. Too many leaks, and they might not get those laws passed. It's not hard to decide that FOX/Newscorp, ABC/Disney, TNT/Time Warner, etc are not going to let the gravy train go completely for the benefit of one story. This is probably why the Guardian led the way in breaking stories against the US for both Wiki-leaks and the Snowden leak,; though from past experiences, I can't say any news isn't biased at all.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 5:12pm

Too much noise from the coop!
For the peace of mind of the little people, it would be well for the Department of Agitprop to (forthwith!) establish a Department of Getting Our Frickin' Story Straight, for the express purpose of replacing the Department of Chickens With Heads Cut Off. Time is of the essence, as the natives are growing restless as a result of inundation with conflicting disinformation from functionaries from different Departments that use different emphasis on their different code words and phrases that may or may not mean the same or different things.

Cluck. And also clukk!
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 5:13pm

It's rather ironic here that the FISA court seems more interested in getting their interpretations made public than the DoJ is. Sure at some level it's just finger pointing and buck passing, each side saying "No, it's his job!". But the FISA is shooting genuine holes in the DoJ's arguments that it can't reveal the information, when it could pretty easily sit back and leave things at the "the DoJ says the secrets must stay secret because they're secret" stage for quite a while if they really didn't want the information revealed.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 5:23pm

Re: Re: Troll The NSA 7PM EST
Roflcopter go boom!
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 5:27pm

Re:
The DOJ knows that "we can do whatever we want" interpretation will not go over well with the public so it must remain secret.
[ link to this | view in thread ]
out_of_the_blue, 12 Jun 2013 @ 5:34pm

Courts don't actually have any power to enforce their rulings.
Ever think about that? A court is nothing but clerks, some of whom write opinions. But to put those opinions into action depends ENTIRELY on the executive branch. The only power a court wields is moral power -- but that only works when the executive branch at least pretends to follow some moral order. So if DOJ doesn't want to take action, that's pretty much the end of the matter.

And we're at the stage where the DOJ that says some crooks on Wall Street are "too big to prosecute" may well say that even the Supreme Court is "too little to obey". The rubber-stamping may go on, but it'll be just to keep some lawyer pals in cushy office.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 5:35pm

Re:
Here's what I think, most Judges are elected into office, while the Attorney General is selected by the President. Since the backlash of the minimal news that has been available on the 10 second clips of national TV, Judge's are trying to distance themselves from the political backlash, and the Attorney General is hoping for a gravy retirement.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 5:39pm

Re: Re:
Yeah, but the FISA knows that too, and they're apparently totally ok with that being revealed (as long as they aren't the ones doing the revealing), when you'd think that they'd have the greatest incentive to keep it from being revealed.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 5:47pm

Re: Troll The NSA 7PM EST
This would be a nice song. Or RAP. Hey DAN!
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 5:48pm

Re:
Somebody just needs a friend.

http://www.youtube.com/watch?v=FMEe7JqBgvg
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

horse with no name, 12 Jun 2013 @ 5:50pm

The new Techdirt story layout format
NSA Surveillance (add mumbly text here) 4th amendment (more mumbly text) illegal recording (mumbly text) outrage / troubling / concerned (mumbly text) what other revelations will come out soon?

Follow this layout, and you too can write a Techdirt story!
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 6:03pm

Re: The new Techdirt story layout format
face + keyboard + repeat ad nauseum

Follow this layout and you too can write a troll comment!
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 6:05pm

Re: The new Techdirt story layout format
Why don't you go start a blog or something then? Otherwise it just seems like you have a schoolyard crush on Mike.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 6:19pm

Re: Courts don't actually have any power to enforce their rulings.
Well guess that that makes the US courts actions and rulings against Megaupload with stating that the company was illegal etc. pointless considering that courts don't actually have any power to enforce their rulings.
[ link to this | view in thread ]
Anonymous Anonymous Coward, 12 Jun 2013 @ 6:30pm

Re: Re:
Federal judges are not elected, they are appointed.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 6:31pm

Senate Appropriations: Cybersecurity Hearing
I'm about halfway through watching video [CSPAN] of the Senate Appropriations Committee Hearing on Cybersecurity which was held earlier today.

The NSA Director, General Keith Alexander, is one of the witnesses testifying at this hearing.

It's worth noting the questions that have already come from, among others, Senators Patrick Leahy (Vermont) and Mike Johanns (Nebraska). But it's the questioning from Oregon's Senator Jeff Merkley that touches directly on the FISA Court's interpretation of the law.

Senator Merkley's time starts about 1:23:00 in the CSPAN video. He refers, among other things, to the bill he introduced Tuesday, S.1130 (although not by number), and gets some kind of statement of support for that bill from General Alexander.

Worth watching�and I'm only halfway through the video. Haven't watched any questions beyond Mr Merkley yet.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

horse with no name, 12 Jun 2013 @ 7:08pm

Re: Re: The new Techdirt story layout format
Schoolyard crush? Nah, it's more like "damn, he's the funniest, most obvious person out there, and these schmucks are falling for it".

There is a sucker born every minute. When was your minute?
[ link to this | view in thread ]
Rapnel (profile), 12 Jun 2013 @ 7:24pm

Re: Re: Troll The NSA 7PM EST
Assassination Attack Domestic security Drill Exercise Cops Law enforcement Authorities Disaster assistance Disaster management DNDO (Domestic Nuclear Detection Office) National preparedness Mitigation Prevention Response Chemical spill Suspicious package/device Toxic National laboratory Nuclear facility Nuclear threat Cloud Plume Radiation Radioactive Leak Biological infection (prevent) Chemical burn Biological Epidemic Hazardous material incident
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 7:27pm

Re: Re: Re: The new Techdirt story layout format
The minute I had to read your garbage. My guess your minute is realising Masnick was right and you couldn't do anything about it except whine like a baby who had his binky taken away.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 12 Jun 2013 @ 7:28pm

Re: The new Techdirt story layout format
NSA Surveillance (add mumbly text here) 4th amendment (more mumbly text) illegal recording (mumbly text) outrage / troubling / concerned (mumbly text) what other revelations will come out soon?

Follow this layout, and you too can write a Techdirt story!

Canned Mike, baby!!
[ link to this | view in thread ]
Rapnel (profile), 12 Jun 2013 @ 7:35pm

Re: Re: Kid Gloves
Chris Dodd.

Does anyone have idea how much a pool of data (or even the knowledge of one) that vast is worth? ("hey buddy, we can track and block IP's and cell phones all. day. long. I can keep pushing this for you" .. "Yeah? Hows a million and a half sound to come work for us?"

Step 6. Close the revolving doors
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 7:36pm

Re: Senate Appropriations: Cybersecurity Hearing
Oregon's Senator Jeff Merkley that touches directly on the FISA Court's interpretation of the law.

For the convenience of those following along at home, here is:

50 U.S.C. � 1861(b) Recipient and contents of application

Each application under this section�

�.�.�.�.

(2) shall include�
(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation�.�.�.�.
[ link to this | view in thread ]
Rapnel (profile), 12 Jun 2013 @ 7:45pm

Re: Re: Re: The new Techdirt story layout format
Haha haha! You lost your binky! Nah-ner nah-ner naahh-neerrr
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 7:50pm

Does anyone take the word of the DOJ at face value anymore?
[ link to this | view in thread ]
Rapnel (profile), 12 Jun 2013 @ 7:50pm

Re: Re: Senate Appropriations: Cybersecurity Hearing
Well, yeah, naturally we've authorized ourselves to investigate the world for everything. Surveillance helps us do that. Everything is, after all, rather tangible and very, very relevant to everything.

... (thinks: "Damn, and I could've just taken that gig putting kids in jail for profit."...

"Approved."
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 7:53pm

Re: Re: The new Techdirt story layout format
School Girl there fixed it for you.
[ link to this | view in thread ]
Jason, 12 Jun 2013 @ 8:04pm

Re: Senate Appropriations: Cybersecurity Hearing
A SUMMARY

Merkley: Here's my phone. You have my data. What is the legal basis for you storing MY data?

General: Um, I really, uh, want to um, I feel like that would be good information to have...uh.,.but I have to check. I'm not sure if it's safe for me to tell you why. If can't I'll give you summary of why I can't...unless of course that's too dangerous...uh...I just want to make sure I answer this correctly...uh...yeah I will either do that or at the very least in the NOT TELEVISED SESSION tomorrow, I'll give you at least a vague reason why I can't.

Chair: Actually we don't really care, just send him a note that says whatever, okay? Okay Merkley? Will that shut you up?

Merkley: Okay, but my bill....I mean what you're saying seems to suggest that this legal basis should be public. That's what my bill was about. So you would support that?

General: Um...uh..Yeah, I don't know.
[ link to this | view in thread ]
Rapnel (profile), 12 Jun 2013 @ 9:05pm

Re: Re: Senate Appropriations: Cybersecurity Hearing
Collins: Snowden said that sitting at his desk that he could tap into virtually any email or telephone call. True or false?

General: False

Collins: Good, I hope we can put that issue to bed then.
...

Well, gosh, I feel better. Finally some straight up honesty.

Wait.
[ link to this | view in thread ]
Jason, 12 Jun 2013 @ 9:52pm

Re: Re: Re: Senate Appropriations: Cybersecurity Hearing
I think there's a reason the Guardian is releasing the stories piecewise. Can't help thinking there's a leak yet to come that blows this convo out of the water.
[ link to this | view in thread ]
apauld (profile), 12 Jun 2013 @ 10:08pm

Re: Courts don't actually have any power to enforce their rulings.
but the important people now know where you are and will be 'round shortly to pick you up.
[ link to this | view in thread ]
Anonymous Coward, 12 Jun 2013 @ 10:12pm

Re: Re: Senate Appropriations: Cybersecurity Hearing

Sen. Feinstein: [~01:57:00] �

� Just to be corrected, if I need to corrected, I would like to just quickly read my understanding of � 215 �

� [~01:58:00] � under � 215 NSA collects phone records �

� [~01:59:00] � Is that a fair description? Or can you correct it in any way?

Gen. Alexander: That is accurate, Senator.

Sen. Feinstein: Thank you.

"collects"

"collects phone records"
[ link to this | view in thread ]
Anonymous Monkey (profile), 12 Jun 2013 @ 10:31pm

Re: Re: Re: Re: Senate Appropriations: Cybersecurity Hearing
Kinda like they are trolling the NSA and leading the hearing/conversation to it's nuclear conclusion ?
[ link to this | view in thread ]
DW, 12 Jun 2013 @ 11:17pm

Re: Kid Gloves
"... they will not be judged by the color of their skin, but by the content of their character."
Martin Luther King, Jr.

I'm sure he meant to say: Reply to the characters in the content of their e-mails of course?
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

horse with no name, 12 Jun 2013 @ 11:57pm

Re: Re: Re: Re: The new Techdirt story layout format
The minute I had to read your garbage. My guess your minute is realising Masnick was right and you couldn't do anything about it except whine like a baby who had his binky taken away.

Actually no. I think that Mike Masnick works on truthiness, which is to say that he uses small pieces of truth as the basis for some interesting stories and points of view, most of which don't seem to add up to much. The current NSA SURVEILLANCE! deal is just that, a little bit of truth, and then dozens of posts repeating and rephrasing various suppositions rather than facts, building mountains out of turd piles.

The best part is if anyone tries to argue, two things happen: The peanut gallery like you dive in and make personal attacks and get insulting, rather than looking and the opposition opinion, and the someone from the Techdirt staff usually jumps in, points to the one small element of truth that underlies the who structure of poop, and says "look, see, it's true!" - and the schmucks (like you) buy it.

So no, I am not whining. I am laughing, loud and long. Ask Mike about the 1st amendment arguments against copyright (and how that played out). It's a great example of truthiness and opinion crashing and burning in front of the courts.
[ link to this | view in thread ]
Anonymous Coward, 13 Jun 2013 @ 2:48am

so yet again, a security body, acting for 'the good of and on behalf of the people' can take a law, twist it round, inside out, upside down, simply so that they can then interpret that law in a way it was not drafted, it a way it was not implemented, in a way it was never intended, just so it can be used against members of the public in a way that suits said security body. not bad for a democratic nation that has freedom, supposedly, as one of it's main desires in life!
[ link to this | view in thread ]
Anonymous Coward, 13 Jun 2013 @ 4:51am

Re: Re: Re: Re: Re: The new Techdirt story layout format
That's odd, what valid points have you raised so far?

They seem to be missing any relevance to the article.
[ link to this | view in thread ]
Anonymous Coward, 13 Jun 2013 @ 4:57am

Re: Re: Re: Re: Re: Re: The new Techdirt story layout format
That is to say, its kind of hypocritical of you to make attacks onthe author/ this website and not expect the same in return. Ifyou have an opinion, bring it. But you arent, you're doing exactly what your first post rails against, noisy rumblings.

No matter how you slice it, your posts, by their nature, invite this type of response and you know it. We laugh longer and harder at you, sad to say.
[ link to this | view in thread ]
Anonymous Coward, 13 Jun 2013 @ 5:21am

Re: Re:
I was thinking more along these lines...

http://www.youtube.com/watch?v=n6O4Qbmbn2w
[ link to this | view in thread ]
Anonymous Coward, 13 Jun 2013 @ 6:47am

Re: Re: Re: Re: Re: The new Techdirt story layout format
You don't argue effectively, you sling insults. Even you should be smart enough to see the difference, but apparently you don't.
[ link to this | view in thread ]
obama bin lyin, 13 Jun 2013 @ 5:45pm

assassination attemp against a communist watermelon from germany
I love this blast every nsa red flag keyword sh*t. Here goes...nuclear materials dirty bombs and gravy make for a great dinner only if you have taters and weapons of mass destruction. the nuclear launch codes are ready for you mr president. kill murder death blow up. SWAT teams military regime mercenaries government documents Edward Snowden is a national treasure. nogalez cartel Mexican army smuggle across your moms ass crack cocaine cops attack everybody eats bodies dies then government does fema camps and forces in chips and dip. facility lockdown 24 7 airplane national preparedness my assassination watermelon no more GMO. WHO is PORK WHO Foot and mouth FMD. virus outbreak from rich politicians with vaccines. CDc plagued with liars and killers. Thank you all be here all night...or will I.Lmao
[ link to this | view in thread ]