Judge Looking Into Alleged Destruction Of Exculpatory Evidence By Pentagon In Thomas Drake Prosecution

from the but,-but-he-broke-the-rules!-[breaks-doc-destruction-rules] dept

More government malfeasance is being alleged in the all-over-but-the-Genius-Bar-employment prosecution of whistleblower Thomas Drake. Documents directly related to his whistleblowing efforts -- ones that would possibly have helped him fight the administration's efforts to punish him for supposedly-protected activities -- were allegedly destroyed by the Department of Defense.

Two government watchdog agencies are investigating whether the Pentagon inspector general destroyed evidence improperly during the high-profile leak investigation of former National Security Agency senior official Thomas Drake.

“DOD OIG’s handling of documents . . . is within the scope of an ongoing inquiry by the Office of Special Counsel (OSC),” Raymond Hulser, the chief of the Justice Department’s Public Integrity Section, wrote to U.S. Magistrate Judge Stephanie Gallagher in a letter dated June 11. “In the event that OSC finds evidence of criminal conduct during the course of its work, it will refer that evidence to the Department of Justice for appropriate action.”

Succinctly put, the "proper channels" for whistleblowing were used by Thomas Drake, who was prosecuted under the Espionage Act. The missing files are related to his attempt to utilize those proper channels. Obviously, following procedures can't really be considered "espionage." The government's case against Drake fell apart, resulting in Drake pleading guilty to a single "unauthorized computer use" charge. But the case went on long enough that it drained Drake's personal savings and his revoked security clearance pretty much barred him from further government employment, leading to his current position as an employee of an Apple store.

The government’s handling of documents first became an issue during the evidence-gathering stage of Drake’s prosecution, when his criminal defense lawyers sought records related to his whistleblower cooperation with the Pentagon inspector general’s office in order to defend him.

At the time, the Justice Department told the judge that most of the “hard copy documents” related to the Pentagon inspector general’s office audit that Drake had cooperated with couldn’t be provided to the defense because they’d been destroyed “pursuant to a standard document destruction policy.”

Drake’s current lawyers, who didn’t represent him in the criminal case, told the court in a letter in April that they learned otherwise while representing Drake in his recent whistleblower claim against the NSA.

Drake’s lawyers wrote that the Pentagon inspector general’s office destroyed the documents “outside of normal policy and to impede . . . the criminal case.”

Even if these documents do somehow materialize, there's not much they can do other than vindicate Drake's actions. It won't rebuild his personal finances or return him to his former government position. In fact, even if evidence of wrongdoing is uncovered, it's likely to result in no meaningful actions. The court itself can't do much more than refer the findings to the Department of Justice, which has already noted that it is looking into these allegations. But to what end? Proof of deliberate destruction of evidence is the sort thing routinely wrist-slapped by the DOJ and the administration, both of which will probably allow the DOD to investigate itself and offer various plans to prevent future malfeasance, should it somehow manage not to clear itself of any wrongdoing.

If evidence of document destruction comes to light, the only practical purpose it will serve is to further illustrate how rigged the "justice" card game is -- what with prosecutors playing with incomplete, marked decks provided to them by "victims" of government whistleblowing.

Filed Under: defense department, evidence, nsa, thomas drake

After Claiming USA Freedom Would Be A Boon To ISIS, Ex-NSA Director Now Mocks How Weak USA Freedom Is

from the funny-how-that-works dept

We've written enough about former NSA and CIA director Michael Hayden that you should already know to take what he says with a large grain of salt. He will say basically anything to further his argument, no matter how false or disingenuous. He doesn't appear to care. He's admitted that September 11th gave him permission to reinterpret the 4th Amendment. He's claimed that terrorist attacks that weren't prevented were proof for why the NSA should keep collecting metadata. He lied about whether he and others lied about the CIA's torture program. He claimed that the release of the Senate Intelligence Committee's exec summary of the CIA torture report would be the tipping point for terrorists attacking us (how'd that work out?). He's argued that no one who thinks Ed Snowden is a whistleblower should be allowed to work in government. He claimed that Senator Feinstein was too emotional about the CIA torture program to judge it effectively. And on and on and on.

And then there's this. Last fall, we wrote about a WSJ op-ed that Hayden co-wrote with former Attorney General Mike Mukasey, completely ripping apart the USA Freedom Act. The headline was:

NSA Reform That Only ISIS Could Love

It claimed that the USA Freedom Act would "hobble the gathering of electronic intelligence" and predicted gloom and doom as a result:

For starters, the bill ends the National Security Agency’s bulk collection of what is called telephone metadata. This includes the date, time, duration and telephone numbers for all calls, but not their content or the identity of the caller or called, and is information already held by telephone companies. The bill would substitute a cumbersome and untried process that would require the NSA, when it seeks to check on which telephone numbers have called or been called by a number reasonably associated with terrorist activity, to obtain a warrant from the Foreign Intelligence Surveillance Court, or FISA court, and then scurry to each of the nation’s telephone-service providers to comb through the information that remains in their hands rather than in the NSA’s.

Nothing in the bill requires the telephone companies to preserve the metadata for any prescribed period. Current Federal Communications Commission regulations impose an 18-month retention requirement, but administrative regulations are subject to change. It isn’t hard to envision companies that wish to offer subscribers the attraction of rapid destruction of these records, or a complaisant bureaucracy that lets them do it.

The bill’s imposition of the warrant requirement on the NSA would be more burdensome than what any assistant U.S. attorney must do to get metadata in a routine criminal case, which is simply to aver that the information is needed in connection with a criminal investigation—period.

He points to the rise of ISIS and says that "the last thing" that Congress should be doing is pushing "a major new bill exquisitely crafted to hobble the gathering of electronic intelligence."

Of course, we all know that was hogwash, but as if to underline that point, let's see what the very same Michael Hayden has to say after the USA Freedom Act passed and became law. Now, all of a sudden, he thinks the bill is so weak that it's an opportunity to mock privacy advocates because this was "all" that they could get:

If somebody would come up to me and say “Look, Hayden, here’s the thing: This Snowden thing is going to be a nightmare for you guys for about two years. And when we get all done with it, what you’re going to be required to do is that little 215 program about American telephony metadata — and by the way, you can still have access to it, but you got to go to the court and get access to it from the companies, rather than keep it to yourself” — I go: “And this is it after two years? Cool!”

He's actually right about that second point -- which is why we've been saying repeatedly that USA Freedom needs to only be a starting point for real reform. However, given that Hayden's position on the bill flipped entirely within a period of eight months, it should emphasize that whenever you see Hayden fearmongering, it's bullshit. He's just doing that as a cynical political ploy to help the surveillance state get or keep its surveillance powers.

Filed Under: cia, ed snowden, metadata, michael hayden, nsa, privacy, section 215, surveillance, usa freedom

Stewart Baker: Journalists Are To Blame For Making The NSA Look Like It's Doing All The Things It's Actually Doing

from the narrative-controller-gripes-about-narrative-he-can't-control dept

Stewart Baker, former NSA General Counsel and unofficial apologist for the DHS, CIA and NSA, is still trying to pin the blame for everything on everyone that isn't a member of these fine American agencies. Privacy activists are to blame for TSA groping. Civil libertarians are to blame for the 9/11 attacks. FISA minimization procedures are also to blame for the 9/11 attacks. Encryption is to blame for the Blackberry's disappearance from the cellphone market. And so on.

Now, in an interview with Wired where he supposedly dispels "cyber-security myths," it's journalists who are to blame for people's distrust of government surveillance. But, you know, not in the flattering sort of way where uncomfortable truths are told and transparency is forced on reluctant, shadowy agencies. No, it's in the bad way where journalists didn't present a "fair" picture of domestic surveillance.

He leads off by saying there's no possible way to hold a "conversation" about surveillance programs because to do so compromises security. We're supposed to just trust the government on this, apparently.

This assertion is challenged by Wired's Caleb Garling, who asks Baker whether Snowden's leaks have served any positive purpose. Baker says there's nothing to be gained because it's journalists -- not the Executive Branch and the intelligence community -- that have been secretive and dishonest.

It was a scam from the start. Greenwald, Poitras, Snowden, and Bart Gellman did exactly what people like them have been accusing the intelligence community of doing for 40 years. They used the classification to tell a partial story in the hopes of shaping the debate, and they succeeded.

They released that order saying the government is scarfing up metadata about all your calls and they withheld, for roughly two weeks,* the [documentation] which they all had which showed all the limitations on that access. Why? Because they didn’t want a debate on the limitations—they wanted to leave the impression that everybody’s phone calls are looked at by NSA and they have succeeded in leaving that impression because of their manipulation of the classified information. That’s a shame.

*OMG ALMOST TWO WHOLE WEEKS

Left unmentioned by Baker is the fact that the government could have stepped in at any time and countered this mis-impression. But it never did. It still doesn't, at least not to any significant extent. When documents are served up by news agencies with access to them, they're routinely greeted with denials, refusals to comment or cliches about "lawful authority" and "oversight." Only very belatedly has the government experimented with transparency, and even in this, there's routinely more redaction than insight.

While it's true that the debate over security vs. privacy will always be somewhat hampered by security concerns, the US government spent years hiding its expanding surveillance programs from everybody, including oversight committees and the FISA Court. It made no effort over the next decade-plus to welcome the public to the debate -- mostly because it had already held this debate in the public's absence shortly after the 9/11 attacks. Now, government apologists like Baker want to blame the press for "skewing" the perception of these agencies and their tactics. But what other view could possibly have been presented? The government -- until June of 2013 -- held (almost) all the cards. Snowden gave journalists a deck of these own and Baker wants to criticize how the press played its limited hand.

Someone who spent years keeping information out of the public's hands (and applauds further efforts to do the same) is in no position to criticize the transparency efforts of others, no matter how subjectively much it looks like activists pitching skewed narratives.

Filed Under: glenn greenwald, journalism, nsa, reporting, stewart baker, surveillance

Amazon Finally Joins The Transparency Party: Notes That It Did Not Join PRISM

from the yes,-but... dept

Earlier this year, we noted that Amazon was alone among the giant internet companies in refusing to publish a transparency report providing details on government requests for information. Amazon was also absent from the legal fight that many big tech companies filed against the government over the right to disclose such information (a fight that only Twitter is still fighting).

Finally, however, late on Friday, Amazon joined the party with its first ever Transparency Report (though it tries to cover up the fact that it's the first time it's ever done this by calling it the company's "bi-annual report.") In an accompanying blog post, however, the company plays up its privacy fighting bona fides -- something many privacy advocates had long questioned -- by highlighting that it "never participated in the NSA's PRISM program" and that it had challenged government subpoenas for information:

Where we need to act publicly to protect customers, we do. Amazon never participated in the NSA’s PRISM program. We have repeatedly challenged government subpoenas for customer information that we believed were overbroad, winning decisions that have helped to set the legal standards for protecting customer speech and privacy interests. We also advocate in Congress to modernize outdated privacy laws to require law enforcement to obtain a search warrant from a court to get the content of customer communications. That’s the appropriate standard, and it’s the standard we follow.

That may be true, but it's also been true that Amazon has been noticeably absent from a variety of efforts to stop government surveillance -- including many that involve nearly every other big internet company. Hopefully this move, joining the rest of these companies in producing a transparency report, is a step towards being even more engaged on these issues as well. Given just how much infrastructure now runs on Amazon's web services platform, it needs to be a stronger champion for privacy and against unnecessary surveillance.

Filed Under: nsa, prism, transparency, transparency reports
Companies: amazon

German Investigation Into NSA Surveillance Of Angela Merkel Dropped

from the politic,-but-unlikely-to-be-a-popular dept

After the first wave of Snowden revelations two years ago, one of the most dramatic later claims was that the NSA had been monitoring the calls of Germany's Chancellor, Angela Merkel. As Techdirt reported at the time, the US government made things worse by emphasizing that it was not presently monitoring her calls, and promised not to monitor them in the future, while leaving the obvious question about past activity glaringly unanswered. Matters were not improved when President Obama then claimed that he had known nothing about the spying. No wonder, then, that a formal investigation into the allegations was launched by Germany in June 2014.

Since then, things went rather quiet, which makes news that Germany’s chief federal prosecutor is dropping the case because of lack of evidence rather surprising. As Reuters reports:

"The accusations made would not stand up in court with the means available for criminal proceedings," the federal prosecutors office in Karlsruhe said in a statement.

"The vague remarks from U.S. officials about U.S. intelligence surveillance of the chancellor's cell phone -- i.e. 'not any more' -- are insufficient evidence".

However, the official statement from the chief federal prosecutor's office (original in German) did not rule out resuming the investigation if new evidence emerged at a later date.

It is likely that Merkel and her advisers have decided that it is better to mend bridges with Obama in this face-saving way rather than to continue demanding answers from an unresponsive US government. That may be a politically reasonable move, but it is unlikely to satisfy many Germans who saw the allegations as evidence that no one was safe from US (and British) spying.

Moreover, as Techdirt noted back in 2013, the refusal by the US authorities to address these and other allegations of surveillance is contributing to the German public's jaundiced view of the TAFTA/TTIP negotiations, which are increasingly in trouble. That skepticism is reflected by the fact that among the 2 million signatures gathered so far by the pan-European Stop TTIP online petition, fully one half come from Germany. The decision to drop the investigation into claims that the NSA listened in on Merkel's phone calls is unlikely to make things better.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: angela merkel, bnd, nsa, surveillance

House Votes To Block Backdoor Searches And To Block Backdooring Encryption

from the let's-do-this-once-again dept

Last night, we noted that an amendment from Reps. Thomas Massie and Zoe Lofgren was on the docket that had two provisions to stop two different kinds of surveillance: the first, taking away funding from "backdoor searches" which are a hugely problematic "loophole" that the NSA uses to do warrantless surveillance of Americans. In many ways, this is much worse than the bulk collection programs that were just hindered by the USA Freedom Act. The second part of the amendment was barring funds from being used to mandate "backdoors" into technology products -- another hugely important move. Thankfully, the amendment passed by a wide margin earlier today: 255 - to 174.

While this is great news, I'm somewhat surprised and disappointed that the margin of victory here was lower than a nearly identical amendment last year (which was approved 293 to 123. It's possible that some of last year's votes were in protest to the falling apart of the USA Freedom Act a year ago -- whereas since it passed this year, some felt it was okay to shift their vote here. Still, in many ways, this has the potential to be a much bigger deal and much more important than the USA Freedom Act, because those backdoor searches are a huge problem.

Of course, it's still a long way from making it into law. As we saw last year, this amendment was quietly dropped later in the year, as part of the giant "CRomnibus bill" that the government needed to pass. Still, we can hope that Congress finally recognizes how important this is.

Filed Under: backdoor searches, backdoors, congress, encryption, nsa, section 702, thomas massie, zoe lofgren

Amendment Blocking Backdoor Searches, Backdooring Encryption To Be Added To Defense Funding Bill

from the well-here-we-go dept

In the last few weeks, we've pointed out that the House of Representatives have been attaching a bunch of interesting amendments to appropriations bills to block surveillance. Last week, for example, there was overwhelming support for an amendment to an appropriations bill that would block funding from NIST (National Institute of Science and Technology) for helping the NSA or CIA undermine encryption. Other amendments blocked funds being used by the DOJ/FBI to force companies to put backdoors into encryption. Other amendments stripped out funding for warrantless use of stingrays.

Now, with the focus on defense appropriations, it appears that Reps. Zoe Lofgren and Thomas Massie are pushing a repeat amendment of last year's bill to block funding for two different kinds of "backdoors" used in surveillance. You can see the amendment here.

There are two key parts to this. The first would block Defense funds from being used for so-called backdoor searches of information collected via the infamous Section 702 "upstream" collection program. We knew that the NSA felt that it was fine to sniff through these so-called "incidental" collections of information, but as we learn more and more about how they do so, the more worried we should be. These backdoor searches are a way for the NSA to spy on many people without ever needing to get a warrant -- and this amendment would block that in cases where the government is searching for information on a US person through that database of info:

Except as provided in subparagraph (b), none of the funds authorized to be appropriated by this Act may be used by an officer or employee of the United States to conduct a search of a collection of communications acquired under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) in an effort to find communications of a particular United States person (other than a corporation).

The second part of the amendment would block funding for having the federal government demand products have backdoors in them:

Except as provided in subsection (b), none of the funds authorized to be appropriated by this Act may be used by an officer or employee of the United States to mandate or request that a manufacturer, developer, or seller of covered products design or alter the security functions in its product or service to allow the surveillance of any user of such product or service, or to allow the physical search of such product, by any agency.

There is some overlap with some of those earlier amendments we talked about from last week, but from different funding bills, so these are an important way to make sure funding for such programs doesn't continue via other channels. Last year, this was the amendment that passed overwhelmingly, surprising many in the intelligence community. And there are some indications that it has even more support this year, as more and more Representatives area aware of intelligence community abuse of surveillance powers. Unfortunately, last year, this amendment was later stripped out, but if support for it continues to grow it'll be impossible to block it forever.

Filed Under: backdoor, backdoor searches, defense appropriations, encryption, funding, nsa, section 702, surveillance, thomas massie, zoe lofgren

Privacy International Files Complaint Against GCHQ's Use Of 'Bulk Personal Datasets'

from the chipping-away dept

Last month, we noted that the UK rights group Privacy International has been at the forefront of the fight against the UK's disproportionate surveillance activities, to such an extent that the UK government has changed the law just to avoid one of its legal challenges. Those have covered many different aspects of GCHQ's activities. In July 2014, Privacy International filed a complaint with the UK's spy watchdog, the Investigatory Powers Tribunal (IPT), over GCHQ's surveillance tools. In September 2014, it tackled GCHQ's involvement in the "Five Eyes" system. And now it has come at things from yet another angle:

Privacy International today filed a legal complaint demanding an end to the bulk collection of phone records and harvesting of other databases, from millions of people who have no ties to terrorism, nor are suspected of any crime.

The complaint, filed in the UK's Investigatory Powers Tribunal, is the first UK legal challenge to attack the UK Government Communications Headquarters' (GCHQ) use of "bulk personal datasets" equivalent of the US s.215 bulk phone records metadata program. The s.215 program run by the NSA, which has dominated the US surveillance reform debate since Edward Snowden revealed it, was curtailed just days ago with the passing of the USA Freedom Act.

The latest challenge flows from the publication in March of the IPT report, "Privacy and Security: A modern and transparent legal framework." Even with its frequent redactions, the report provided important new information on which Privacy International is basing its complaint:

The ISC does not reveal which datasets have been collected by GCHQ, but they are described as being "highly intrusive", containing "millions" of records, which are then "linked together." In a startling admission, the datasets were separately described as pertaining "to a wide range of individuals, the majority of whom are unlikely to be of intelligence interest."

There is no proper legal regime in place, with no restrictions on which datasets can be collected, how long they can be stored, or accessed. The acquisition and subsequent use of datasets is not authorised by a judge, or even a Minister.

It gets even worse:

There are no legal penalties for misuse of this information, and abuse of the data has already happened with the ISC finding that agencies “had disciplined – or in some cases dismissed – staff for inappropriately accessing personal information held in these datasets.” It is not sufficient that misuse is dealt with by individual disciplinary measures. We need much stronger safeguards to prevent misuse occurring in the first place.

Bringing multiple cases before tribunals and courts is one way to achieve that. At the very least, it makes people more aware of what is going on, and increasingly it is leading to small but symbolically important victories too.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: bulk collection, gchq, nsa, surveillance, usa freedom act
Companies: privacy international

DOJ Argues FISC Opinion Preferable To 2nd Circuit Opinion While Defending Ongoing, Unaltered Metadata Collection

from the WE-HEART-FISC dept

The Memorandum of Law the FISA Court ordered the DOJ to make public in response to Ken Cuccinelli/FreedomWorks' challenge to the immediate return of Section 215 "business as usual" following the expiration of the authority at the end of May. (Followed almost immediately thereafter by the passage of the USA Freedom Act, carrying with it a six-month "transitional" collection period.)

In it, the DOJ makes its case for uninterrupted bulk metadata collection, as if the authority a) hadn't been allowed to expire and b) hadn't had its legality challenged by the Second Circuit Court. Right now, it's all a very gray area and the DOJ aims to take advantage of it. Due to the fact the surveillance reform bill didn't pass until after the expiration of the authority, the six-month window granted may theoretically allow for an uninterrupted collection, but it's completely unclear as to what legal authority allows the government to do so -- at least in its present, unaltered form.

The DOJ claims in its late-night FISC filing that the USA Freedom Act itself gives it permission to run an unaltered Section 215 collection for the next six months.

The USA FREEDOM Act authorizes the Government to seek and this Court to issue an order under Section 1861 for the production of tangible things in bulk for 180 days in the same manner as authorized in docket number BR 15-24 and prior related dockets. The USA FREEDOM Act bans the bulk production of tangible things under Section 1861 effective 180 days from its enactment, which is when Sections 101 through 103 take effect. Id.§ 109(a). Its brief lapse notwithstanding, the USA FREEDOM Act also expressly extends the sunset of Section 215 of the USA PATRIOT Act, as amended, until December 15, 2019, id.§ 705(a), and provides that, until the effective date of the amendments made by Sections 101 through 103, it does not alter or eliminate the Government's authority to obtain an order under Section 1861 as in effect prior to the effective date of Sections 101 through 103 of the USA FREEDOM Act. Id.§ 109(b). Because the USA FREEDOM Act extends the sunset for Section 215 and delays the ban on bulk production under Section 1861 until 180 days from its enactment, the Government respectfully submits that it may seek and this Court may issue an order for the bulk production of tangible things under Section 1861 as amended by Section 215 of the USA PATRIOT Act as it did in docket number BR 15-24 and prior related dockets.

As Marcy Wheeler notes, the DOJ has inferred Congressional intent by cherry-picking supporting quotes from representatives.

It cites comments Pat Leahy and Chuck Grassley made on May 22 (without, curiously, quoting either Rand Paul or legislative record from after Mitch McConnell caused the dragnet to lapse) showing that the intent of the bill was to extend the current dragnet.

What really makes the DOJ's memo worth reading is its off-hand dismissal of the Second Circuit Court's finding that the bulk collection is not actually authorized by existing law. It simply states that it finds this court's opinion less likable than the FISA Court's interpretation of this legal authority.

The Second Circuit's recent panel opinion in ACLU v. Clapper, No. 14-42 (2d Cir. May 7, 2015) does not bar this Court from authorizing the production in bulk of call detail records, notwithstanding its holding that Section 1861 does not authorize the bulk production of call detail records. The Government believes that this Court's analysis of Section 215 reflects the better interpretation of the statute, see, e.g., In Re Application of the FBI for an Order Requiring the Production of Tangible Things, docket no. BR 13-109, Amended Mem. Op., 2013 WL 5741573 (FISA Ct. Aug. 29, 2013) (Eagan, J.) and In Re Application of the FBI for an Order Requiring the Production of Tangible Things, docket no. BR 13-158, Mem. (FISA Ct. Oct. 11, 2013) (McLaughlin, J.), disagrees with the Second Circuit panel's opinion, and submits that the request for renewal of the bulk production authority is authorized under the statute as noted above.

In support of this "argument," it cites the FISA Court's own complicity in rubber-stamping order after order for several years in a row.

With respect to application of Section 1861 of FISA, as amended by Section 215 of the USA PATRIOT Act, following careful consideration of the law by nineteen different judges, this Court has authorized the bulk production of call detail records to NSA forty-one times since May 2006.

The DOJ's response to Cuccinelli's challenge has yet to arrive and, obviously, this memorandum was written before the challenge arrived at the FISA Court. But given this filing's dismissal of both the Second Circuit Court's decision and any legal vagueness surrounding the lapse of the Section 215 authority, it's likely its response will be more of the same.

Filed Under: bulk collection, doj, fisa court, fisc, nsa, section 215, surveillance

FISA Court Asked To Shut Down Bulk Collection Of Phone Records During Transition To USA Freedom Act

from the this-will-certainly-expedite-the-transition dept

Lawyer Ken Cuccinelli -- who's representing Rand Paul in his lawsuit against the government for its domestic surveillance programs -- has filed a motion in opposition of the resumption of the Section 215 program with the FISA Court. While Section 215 officially expired on May 31st, it lives on in altered form after the passage of the USA Freedom Act, which ends the collection of metadata and forces the government to approach telcos with targeted requests for data.

But the NSA and FBI don't need to cease their bulk collection immediately. The passed Act provides a six-month window for the agencies to wind down current collections and prepare for the move to a more limited collection method. This is what Cuccinelli and FreedomWorks are arguing against. Despite the expiration, the USA Freedom Act's new limitations, and the Second Circuit Court finding the collection itself unauthorized by existing law, the collection is still ongoing and will be running unaltered for 180 days. Cuccinelli says the FISA Court should halt this collection immediately based on two legal conclusions.

Movants' first argument is that Respondents' metadata collection is beyond the scope of what Congress authorized in Section 215 and this Court should deny Respondents' filed or imminent request to renew/re-institute such metadata collection. ACLU v. Clapper, 2015 U.S. App. LEXIS 7531.

Movants' second argument is that Respondents' metadata collection, as well as the storing and searching of such metadata, violates the Fourth Amendment.

Most of the filing details these two legal arguments, with the most interesting passages dismantling the government's reliance on 1979's Smith v. Maryland decision -- something that dealt with the targeted acquisition of a suspected criminal's phone records via a pen register/trap and trace order, which is vastly dissimilar to the collection of everyone's data first, and then working backwards to locate suspects.

First, while Movants do not dispute the importance of identifying terrorist operatives and preventing terrorist attacks, such an interest does not justify a secret blanket warrantless search of all telephone metadata from all (or substantially all) American citizens. The Edmond Court noted ''the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terorist attack." 531 U.S. at 44 (emphasis supplied).

The word "imminent" is critical. Its primary definition is "an event, esp. danger or disaster: impending, soon to happen." 1 SHORTER OXFORD ENGLISH DICTIONARY 1323 (5th ed. 2002) (emphasis supplied). That is, in such a scenario the Government would already have compelling evidence showing a particular terrorist attack is likely to happen in the near future (as opposed to a general concern that ''terrorists are looking to strike the United States")-the existing evidence obtained through proper methods would be the basis for claiming the "special need."

But in this case, the Government is attempting to invert the process-the Government has no evidence and instead seeks to cull through massive amounts of data attempting to ferret out terrorism. Thus, the alleged "special need" is the Government's desire to seek evidence, which may or may not exist, regarding unknown hypothetical terrorist attacks. The "nature and immediacy" of the Government's concerns do not justify the metadata collection because it is not based on thwarting an "imminent" attack.

The motion goes on to point out that while the government continues to claim it "needs" this program to thwart terrorism, it has offered up no evidence showing the bulk collection's ability to do so. To that end, Cuccinelli respectfully asks the court to kill Section 215 dead.

For all the foregoing reasons, the Court should deny the Government's request to reinstitute/renew metadata collection. Furthermore, the Court should declare that the metadata collection is beyond the scope of Section 215 and violated the Fourth Amendment; enjoin Respondents from conducting or operating the metadata collection; order Respondents to destroy any and all telephone metadata that has been seized, stored, retained, and/or searched, regardless where held or by whom (excepting such data as Respondents can show reasonable cause to be related to an authorized investigation); award Movants' fees and costs pursuant to 28 U.S.C. 2412; and such other and further relief as the Court deems just and proper.

The FISA Court has ordered the government to respond to the motion, and it's not being given much time to do so.

Any response by the Government to the motion shall be submitted no later than June 12, 2015. Such response shall be limited to the merits of whether the bulk acquisition of noncontent call-detail records is lawful under Title V of the Foreign Intelligence Surveillance Act (FISA), as amended by the USA FREEDOM Act of 2015, Public Law No. 114-23, and consistent with the Fourth Amendment to the Constitution, and shall not address any issues regarding whether the Movants have standing under FISA or Article III of the Constitution to seek the relief requested by the motion.

The government may not be used to working so quickly, but it certainly seems to be able to kick it into a higher gear when it serves its purposes. The Section 215 program was stalled for all of about 48 hours before the administration placed it back online with the signing of the USA Freedom Act, as can be discerned from this part of the FISA Court's order.

The Government shall immediately serve on the Movants a copy of its unclassified "Memorandum of Law," captioned "In Re Application of the Federal Bureau of lnvestigation for an Order Requiring the Production of Tangible Things" and filed with this Court on the night of June 2, 2015, and submit to the Court a certificate of such service.

The government's response should be interesting, considering the ongoing legal challenges to its surveillance programs, especially since it won't be allowed to spend several pages arguing why the movants shouldn't even be allowed to challenge bulk collections. This challenge may also prompt a faster transition period, especially if the involved agencies face the prospect of 180 days "in the dark."

Filed Under: bulk collection, doj, ken cuccinelli, nsa, patriot act, section 215, surveillance, usa freedom
Companies: freedomworks