Appeals Court Strikes Down Ruling Finding NSA Phone Records Collection Unconstitutional

from the well-that's-too-bad dept

Back in December of 2013, judge Richard Leon of the DC district court, ruled that the NSA's bulk metadata collection under Section 215 of the PATRIOT Act was unconstitutional and issued an injunction against it (though, recognizing the inevitable appeal, Judge Leon stayed the injunction). This was in the case brought by Larry Klayman and FreedomWorks.

Leon's ruling was detailed and thorough... but the DC circuit appeals court has overturned it and sent it back to the lower court, focusing mainly on the "standing" question that has been raised in basically every case against NSA surveillance. In short, the government says "if you can't prove that we spied on you directly, then you can't sue us over our spying on everyone generally." That seems sketchy for all sorts of reasons, and Judge Leon, in his original ruling pointed out how ridiculous it was, mocking the government's reliance on the Supreme Court ruling in "Clapper" (a case against James Clapper) where the Supreme Court basically agreed that you needed more evidence to show you had standing. Of course, that ruling only happened after the US Solicitor General lied to the Supreme Court about how defendants arrested using such data would be told how it was collected. Besides, here, Judge Leon noted, there was plenty of evidence that everyone's information was being collected.

Straining mightily to find a reason that plaintiffs nonetheless lack standing to challenge the metadata collection, the Government argues that Judge Vinson's order names only Verizon Business Network Services ("VBNS") as the recipient of the order, whereas plaintiffs claim to be Verizon Wireless subscribers. The Government obviously wants me to infer that the NSA may not have collected records from Verizon Wireless (or perhaps any other non-VBNS entity, such as AT&T and Sprint). Curiously, the Government makes this argument at the same time it is describing in its pleadings a bulk metadata collection program that can function only because it "creates an historical repository that permits retrospective analysis of terrorist-related communications across multiple telecommunications networks, and that can be immediately accessed as new terrorist-associated telephone identifiers come to light."

[....] Put simply, the Government wants it both ways. Virtually all of the Government's briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism--in which case the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers.... Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not inspire confidence!

But, the appeals court just doesn't buy it. From the opinion by Judge Janice Brown:

The record, as it stands in the very early stages of this litigation, leaves some doubt about whether plaintiffs’ own metadata was ever collected. Plaintiffs’ central allegation is that defendants “violated the Fourth Amendment to the U.S. Constitution when they unreasonably searched and seized and continue to search Plaintiffs’ phone records . . . without reasonable suspicion or probable cause.” ... Plaintiffs have supported this claim with specific facts, notably: (1) The NSA operates a bulk telephony-metadata collection program; and (2) on April 25, 2013, the FISC issued an order requiring Verizon Business Network Services to produce its subscribers’ call detail records to the NSA on a daily basis from April 25, 2013 to July 19, 2013. However, plaintiffs are Verizon Wireless subscribers and not Verizon Business Network Services subscribers. Thus, the facts marshaled by plaintiffs do not fully establish that their own metadata was ever collected.

Judge Brown admits that Judge Leon explains why the government's own statements make it clear that its metadata collection goes beyond just Verizon Business Network Services, but doesn't think it's enough evidence. She also highlights how there is at least some more substantial evidence than in the Clapper/Amnesty International case that the Supreme Court ruled on, but still doesn't find it enough:

However, the burden on plaintiffs seeking a preliminary injunction is high. Plaintiffs must establish a “substantial likelihood of success on the merits.” ... Although one could reasonably infer from the evidence presented the government collected plaintiffs’ own metadata, one could also conclude the opposite. Having barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction.

Instead, Judge Brown says that the lower court could try to determine if it's appropriate for Klayman/Freedomworks to be allowed to conduct discovery with the government to obtain more evidence that his phone record info was collected -- while admitting that's unlikely because "secret program" and all that.

On remand it is for the district court to determine whether limited discovery to explore jurisdictional facts is appropriate.... Of course, I recognize that, in order for additional discovery to be meaningful, one of the obstacles plaintiffs must surmount is the government’s unwillingness to make public a secret program.... It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not “what the citizen may do” but instead “what the citizen may know.”... Regulations of this sort may frustrate the inquisitive citizen but that does not make them illegal or illegitimate. Excessive secrecy limits needed criticism and debate. Effective secrecy ensures the perpetuation of our institutions. In any event, our opinions do not comment on the propriety of whatever privileges the government may have occasion to assert.

Got that? Excessive government secrecy sucks, but, hey, what can you do?

In a separate ruling, Judge Stephen Williams also says there's no standing, giving even more deference to the Supreme Court's ruling in the Clapper/Amnesty International case. While at least Judge Brown was willing to distinguish the two, Judge Williams sees no such distinction:

Here, the plaintiffs’ case for standing is similar to that rejected in Clapper. They offer nothing parallel to the Clapper plaintiffs’ evidence that the government had previously targeted them or someone they were communicating with (No. 3 above). And their assertion that NSA’s collection must be comprehensive in order for the program to be most effective is no stronger than the Clapper plaintiffs’ assertions regarding the government’s motive and capacity to target their communications

In fact, Judge Williams takes the odd position of adding in possible reasons why the NSA might not be collecting everyone's metadata to show why such an inference is unfounded:

The strength of plaintiffs’ inference from the government’s interest in having an effective program rests on an assumption that the NSA prioritizes effectiveness over all other values. In fact, there are various competing interests that may constrain the government’s pursuit of effective surveillance. Plaintiffs’ inference fails to account for the possibility that legal constraints, technical challenges, budget limitations, or other interests prevented NSA from collecting metadata from Verizon Wireless. Many government programs (even ones associated with national defense) seem to be calibrated or constrained by collateral concerns not directly related to the program’s stated objectives, such as funding deficiencies, bureaucratic inertia, poor leadership, and diversion to non-defense interests of resources nominally dedicated to defense. It is possible that such factors have operated to hamper the breadth of the NSA’s collection.

Basically, we can't assume that Verizon Wireless metadata was collected because, you know, maybe it wasn't. Maybe "bureaucratic inertia" meant the NSA really didn't care about Verizon Wireless. Who can really say?

The only "dissent" on the three judge panel comes from Judge David Sentelle, who says he basically agrees with absolutely everything Judge Williams says except for the idea that the case should be remanded to the district court for further discovery, saying the entire case should be dismissed outright.

Plaintiffs have not demonstrated that they suffer injury from the government’s collection of records. They have certainly not shown an “injury in fact” that is “actual or imminent, not conjectural or hypothetical.” ... I agree with the conclusion of my colleagues that plaintiffs have not shown themselves entitled to the preliminary injunction granted by the district court. However, we should not make that our judicial pronouncement, since we do not have jurisdiction to make any determination in the cause. I therefore would vacate the preliminary injunction as having been granted without jurisdiction by the district court, and I would remand the case, not for further proceedings, but for dismissal.

[....]

Without standing there is no jurisdiction. Without jurisdiction we cannot act.... Therefore, I agree with my colleagues that the issuance of the preliminary injunction was an ultra vires act by the district court and must be vacated. However, I believe we can do no more. I would remand the case for dismissal, not further proceedings.

So... that's not great. However, it also creates a pretty clear circuit split between the DC Circuit and the 2nd Circuit, which you may recall ruled that the ACLU and others had standing in a similar lawsuit. Given this clear circuit split, perhaps the Supreme Court can actually be persuaded to take up the case and fix the mistake it made in the Clapper case a couple years ago...

Filed Under: doj, larry klayman, mass surveillance, metadata, nsa, phone records, section 215, standing, surveillance

Intel Officials' Claims That NSA Couldn't Access Majority Of Cellphone Records Apparently Bogus

from the misrepresenting-the-haul dept

The recent Snowden documents published by the New York Times and ProPublica confirm the close relationship between AT&T and the NSA, which would explain the deafening silence the company issued in response to the first few months of leaks. (Such "partnerships" likely exist with Verizon and other providers, although nothing has been directly confirmed by leaked documents, and such partnerships may have done a bit of "dissolving" shortly after the leaks began.)

But the documents also highlighted the difference between what NSA officials claimed they were getting and what they were actually getting from telcos. In early 2014, officials claimed they were only obtaining between 20-30% of domestic call records. According to unnamed "current and former officials," the explosion of cellphone use was leaving the NSA's bulk collection programs in the dust.

These documents show there's a huge discrepancy between the unofficial "official" statements and the NSA's actual capabilities, as the ACLU's Kade Crockford points out.

The New York Times reports on documents disclosed by former NSA contractor and whistleblower Edward Snowden:

"In 2011, AT&T began handing over 1.1 billion domestic cellphone calling records a day to the N.S.A. after “a push to get this flow operational prior to the 10th anniversary of 9/11,” according to an internal agency newsletter. This revelation is striking because after Mr. Snowden disclosed the program of collecting the records of Americans’ phone calls, intelligence officials told reporters that, for technical reasons, it consisted mostly of landline phone records."

I must quibble a bit with the New York Times excellent reporting here, only to suggest that what's "striking" about the discrepancy between what journalists reported and the truth isn't the fact that the NSA would lie to journalists. What's striking is that journalists continue to print official, often anonymous claims about government surveillance programs without a shred of evidence that those claims are true.

This has long been the problem with journalists' reliance on "unnamed government sources." Without a name to attach the statement to, no one can be held accountable for lying to the American public. While many sources would not comment at all without the protection of anonymity, the statements issued are seldom questioned by entities with an obligation to challenge anonymous assertions.

On the other hand, emptywheel's Marcy Wheeler points out these claims may have an element of truth, but only because Snowden's leaks and problematic cell location data (which isn't specifically covered by Section 215) was preventing the agency from collecting all it wanted to, or perhaps all it used to.

We know from the Congressional notice AT&T was willing to strip [location data]. For a lot of reasons, it’s likely Verizon was unwilling to strip it.

This is one of the possible explanations I’ve posited for why NSA wasn’t getting cell data from Verizon, because any provider is only obliged to give business records they already have on hand, and it would be fairly easy to claim stripping the cell location data made it a new business record.

Which is another important piece of evidence for the case made against AT&T in the story. They were willing to play with records they were handing over to the government in ways not required by the law.

Though who knows if that remain(ed) the case? To get to the 30% figure quoted in all the pieces claiming NSA wasn’t getting cell data, you’d probably have to have AT&T excluded as well. So maybe after the Snowden releases, they, too, refused to do things they weren’t required to do by law...

So, it could very well be that the NSA wasn't getting all the cell records it wanted to, making these claims mostly factual. But the Wall Street Journal and New York Times both attribute quotes to "former officials" as well, which would include officials in place prior to the Snowden leaks. If the leaks resulted in a sudden reluctance to provide these records, it would only have occurred after June 2013. The questionable statements were made in the first few months of 2014. That's not much of a gap, especially if former officials are speaking from their personal experience.

Maybe the NSA was only getting 20-30% of what it was seeking. Or maybe it only wanted to give that impression. Nothing about the statements reflect a sudden downturn in collections. Instead, they portray it as an ongoing problem. The underlying issue is the secrecy of surveillance programs, which leads to statements that can't be confirmed (or refuted) until evidence is provided. And these officials aren't going to hand out this info. It has to come from whistleblowers and leakers. The government can skate by on lies and misperceptions, especially when national security is involved.

Filed Under: lies, metadata, mobile phones, nsa, partnership, phone records, section 215, surveillance
Companies: at&t

DOJ To Court: Hey, We're Shutting Down Section 215, So We Can Probably Stop Arguing About The Legality Of Bulk Collection

from the you-sort-of-won!-what-more-do-you-want? dept

Just as James Clapper's office was officially announcing the death of the bulk phone metadata program (ending November 29th, with three months of post-wind-down wind-down for data analysts), the DOJ was filing a motion in the Second Circuit Court of Appeals basically arguing that its finding that the program was illegal really doesn't matter anymore.

According to the DOJ, there really is no program -- at least if you don't count the six months the NSA has to make the move to the more targeted USA Freedom version. So this discussion about which program isn't authorized by which PATRIOT Act provision is… well, not completely moot, but like pretty much literally weeks away from moot, so why are we wasting our time here [EXASPERATED SIGH].

Plaintiffs’ claims will be moot when the bulk collection of telephony metadata under Section 215 ends on November 29, 2015, though they are not moot right now. On that date, the statutory authority for the Section 215 bulk telephony-metadata program will expire, and the data previously collected and held under that program will not be used in the future for intelligence-gathering or law-enforcement purposes. In the meantime, however, the Court should respect Congress’s decision to create an orderly transition away from the Section 215 bulk telephony-metadata program. Especially in light of Congress’s considered judgment that this program should continue for this limited period, plaintiffs are not entitled to any of the relief they request.

In support of its argument that the court should ignore its own findings and just listen to what the FISA Court said (and what legislators didn't say, but obviously intended), the government points to its own Tumblr post (certainly a historical moment in its own right) detailing the specifics of the end of Section 215.

On July 27, 2015, the Office of the Director of National Intelligence (ODNI) issued a public statement that the NSA has determined that “analytic access to that historical metadata collected under Section 215 . . . will cease on November 29, 2015,” at the end of the transition period. See Statement by ODNI on Retention of Data Collected Under Section 215 of the USA PATRIOT Act, available at http:// icontherecord.tumblr.com/post/125179645313/ statement-by-the-odni-on-retention-of-data (ODNI July 27 Statement). Thus, after that date, no further bulk collection of telephony metadata will take place under the Section 215 program, and the historical telephony metadata will not be used for intelligence or law-enforcement purposes and will not be disseminated.

To sum up: these past abuses should no longer be of concern as the data is going to be flushed (for the most part) within the next nine months. To better enable said data flush, the Second Circuit Court might want to wrap up the ACLU's suit (and hasten the end of the EFF's) so that no data is still being "preserved" past the November 2015 dump point.

To that end, the DOJ constantly reminds the Second Circuit that the FISA Court really has a handle on these sort of things and why don't we just leave it to the pros.

The FISC was right that Congress authorized the Section 215 bulk telephony-metadata program to continue during the six-month transition period. [p. 6]

As the FISC correctly noted, Congress’s decision to delay that ban for six months is a powerful indication that it intended to permit bulk collection in the interim period. [p. 9]

The FISC was thus correct when it observed that “after lengthy public debate, and with crystal clear knowledge of the fact of ongoing bulk collection of call detail records” Congress “chose to allow a 180-day transitional period . . . .” June 29 FISC Op. at 11. This Court need not and should not determine whether Congress “ ‘ratif[ied] the FISA Court’s interpretation of ’ ” Section 215. [p. 11]

This filing, like its Tumblr statement announcing the official end of the collection, emphasizes the single aspect of the Section 215 bulk collections that has been the focus of this litigation and most legislative efforts: phone metadata. The authorization, even in its altered, post-USA Freedom Act form -- provides for much more than just this one type of collection. The DOJ goes so far as to call the USA Freedom Act a "ban" on bulk, untargeted collections, when it actually doesn't go quite that far.

Marcy Wheeler points out that the DOJ may be less interested in the outcome of this ruling as it is with the implications of the EFF's litigation. What could be uncovered if the NSA is forced to turn over relevant records from its bulk metadata collection is more illegal -- or at least unauthorized -- collection activity.

I believe both ACLU and EFF’s phone dragnet client Counsel on American Islamic Relations, had not only standing as clients of dragnetted companies, but probably got swept up in the two-degree dragnet. But CAIR probably has an even stronger case, because it is public that FISC approved a traditional FISA order against CAIR founder Nihad Awad. Any traditional FISA target has always been approved as a RAS seed to check the dragnet, and NSA almost certainly used that more back when Awad was tapped, which continued until 2008. In other words, CAIR has very good reason to suspect the entire organization has been swept up in the dragnet and subjected to all of NSA’s other analytical toys.

EFF, remember, is the one NGO that has a preservation order, which got extended from its earlier NSA lawsuits (like Jewel) to the current dragnet suit. So when I Con the Record says it can’t destroy all the data yet, it’s talking EFF, and by extension, CAIR. So this announcement — in addition to preparing whatever they’ll file to get the Second Circuit off its back — is likely an effort to moot that lawsuit, which in my opinion poses by far the biggest threat of real fireworks about the dragnet (not least because it would easily be shown to violate a prior SCOTUS decision prohibiting the mapping of organizations).

This announcement by Clapper's office, followed shortly thereafter on the same day by the filing of its response in the Second Circuit case, certainly gives the appearance that the NSA has lifted the corner of the rug and is just waiting for the signal to start sweeping any undiscovered abuses -- along with those previously exposed -- under it. That the expiration of the authority and the passage of the USA Freedom Act may have provided it with a better broom is unexpectedly fortuitous.

Filed Under: 4th amendment, bulk records, doj, james clapper, lawsuits, nsa, odni, section 215, surveillance, usa freedom act
Companies: aclu, eff

Director Of National Intelligence Hammers Final Official Nail Into Bulk Phone Records Program

from the will-still-need-six-to-nine-months-of-additional-hammering-though dept

The Office of the Director of National Intelligence has issued a statement addressing the inevitable shutdown of the Section 215 bulk phone metadata program.

NSA has determined that analytic access to that historical metadata collected under Section 215 (any data collected before November 29, 2015) will cease on November 29, 2015. However, solely for data integrity purposes to verify the records produced under the new targeted production authorized by the USA FREEDOM Act, NSA will allow technical personnel to continue to have access to the historical metadata for an additional three months.

Caveats apply. Data will still be held as required by a handful of ongoing lawsuits. With the "bulk" part of the bulk records program shut down (but not completely), the government is obviously hoping for a speedy end to the litigation resulting from the Snowden leaks. That's the other motivating factor behind this public statement that not only states an end date, but the additional restrictions past that point.

This is a pretty remarkable moment in the security v. privacy battle, but there are still reasons to be concerned. The bulk telephony metadata program has received a majority of the focus since Snowden's initial leak and the NSA, at times, has seemed almost too willing to let this program act as a scapegoat for its multiple privacy-violating surveillance programs.

Not that there haven't been seriously heated (and seriously misguided) arguments offered in support of this program, but if you take a close look at the history of the debate over Section 215, the most-spirited defenses have not been raised by the NSA, but by legislators and former intelligence officials. The program appears to have been sacrificed in order to prevent more intrusive surveillance programs from being subjected to more intense scrutiny.

And it's not even the totality of what can be collected under Section 215. The statement from the ODNI specifically addresses only one kind of "tangible thing."

The telephony metadata preserved solely because of preservation obligations in pending civil litigation will not be used or accessed for any other purpose, and, as soon as possible, NSA will destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations.

We don't know what else is being collected in bulk under the PATRIOT Act provision -- the same authority that expired this year and was replaced with the stipulations of the USA Freedom Act -- but we know it's more than just "telephony metadata." "Tangible things" encompasses far more than phone metadata ("books, records, papers, documents, and other items"), but this statement -- as well as arguments it's made in court in support of the six-month wind-down period -- only address phone records.

The Second Circuit Court found that the bulk collection of records under Section 215 was likely illegal. That opinion called into question anything collected under this authority, but the government here (and in its recent filing in the Second Circuit Court) acts as though the "illegal" collection activity is limited solely to phone records.

Other NSA programs are going to be far more useful in gathering data and intelligence than the collection of phone records. Phone calls may never go away entirely, but the shift to mobile communications (followed shortly thereafter by the shift to feature phones and smartphones) has made phone calls the least used feature on these devices. Messaging programs and social media platforms now carry the bulk of everyday communications. And the NSA has programs in place to sweep up these as well, whether as content or metadata. So, all of this focus on "telephony" only serves to obscure what else it may still collect with the revamped program, as well as everything else it does under much more secretive legal authorities.

Filed Under: bulk phone records, bulk records, james clapper, nsa, odni, section 215, surveillance, usa freedom act

FISA Court Authorizes 'As-Is' Bulk Phone Collections For The Next Six Months

from the 'six-months-same-as-Patriot-Act'-civil-liberties-fire-sale! dept

"The more things change, the more everything is just Smith v. Maryland (1979)."

Or so the FISA Court notes in its latest order authorizing the continued collection of bulk phone records under… well, not Section 215, which expired, but under a "non-hyper-literal evil genie" reading of the contradictory forces temporarily in play thanks to the passage of the USA Freedom Act.

"Plus ça change, plus c'est la même chose," well, at least for 180 days. This application presents the question whether the recently-enacted USA FREEDOM Act, in amending Title V of FISA, 2 ended the bulk collection of telephone metadata. The short answer is yes. But in doing so, Congress deliberately carved out a 180-day period following the date of enactment in which such collection was specifically authorized. For this reason, the Court approves the application in this case.

The order notes that there was much more to consider in this renewal application. It nods to the expiration of Section 215 on May 31st and its brief return to its pre-Patriot Act form for roughly 24 hours before the passage of USA Freedom pushed the expiration date up until 2019. It notes the legal challenges brought against the bulk collection by Ken Cuccinelli and FreedomWorks, as well as the stipulations added to the collection by the surveillance reform bill.

The order denies Cuccinelli/Freedomworks' request to shut down the bulk collection entirely but does grant their request to serve as amicus curiae -- a new position provided for by the USA Freedom Act. This, however, is limited solely to motions already presented to the court by FreedomWorks and Center for National Security Studies. And the FISA Court finds the opposition to the government's claim of 180 days' worth of uninterrupted, unaltered bulk collections to be lacking in merit. The culprit is (partially) the USA Freedom Act itself.

The USA FREEDOM Act prohibits the FISC from issuing an order for production of tangible things without the use of a "specific selection term." USA FREEDOM Act§ 103(b), amending FISA § 501(c). This amendment and the related amendments set forth in sections 101 through 103 of the USA FREEDOM Act prohibit the government from acquiring tangible things in bulk under a FISA business records order. Crucially for purposes of this case, however, section 109(a) of the USA FREEDOM Act states that these amendments do not take effect until 180 days after enactment (November 29, 2015).

[...]

And if that was not clear enough, the USA FREEDOM Act also states that "[n]othing in this Act shall be construed to alter or eliminate the authority of the Government to obtain an order [under the business records provisions of FISA] as in effect prior to [the ban on bulk acquisition taking effect after 180 days]." USA FREEDOM Act §109(b). In passing the USA FREEDOM Act, Congress clearly intended to end bulk data collection of business records and other tangible things. But what it took away with one hand, it gave back - for a limited time - with the other.

The rest of the order is given over to dismissing a handful of other legal challenges to the bulk collection program, including the Second Circuit Court's finding that the program -- in its current form -- is not actually authorized by law.

The FISA Court, however, finds the appeals court's analysis "flawed" and reliant on "mischaracterizations." While the Second Circuit found the program "had no endpoint," the FISA Court claims the USA Freedom Act gives it one: November 29, 2015. This is the FISA Court shifting back into "hyper-literal evil genie" mode. The Section 215 collection has always had an "endpoint." It's just always been renewed by Congress, up until 2015's expiration, which was more a result of Snowden's leaks than an autonomous decision to give the program a true endpoint. Without a doubt, the modified collection will go through the same cycle of endless renewals.

The government's access to American phone records is never going to end completely, not as long as the government and FISA Court continue to rely on the Third Party Doctrine, as defined by the 1979 Smith v. Maryland decision. The FISA order refers to this decision repeatedly in its justification of ongoing bulk collections, either in pre-USA Freedom Act form or with the new limitations in place. As long as the government can rely on this large Fourth Amendment loophole, domestic surveillance in the form of bulk collections (as well as subpoena and National Security letter abuse) will continue. There is effectively no "endpoint" for these collections, as the Second Circuit pointed out.

The only thing "correct" about the FISA Court's analysis of these collections -- including the convenient elasticity of the term "relevant" -- is that a new Fourth Amendment privacy right doesn't simply spring into existence because these programs harvest information on millions of Americans. If the government -- and the courts -- aren't willing to extend protections to certain "business records" for an individual, the same lack of protection remains in place when it's hundreds of thousands who are affected.

For what it's worth, Section 215 (now Section 501) will no longer be collected and stored by the NSA after this six-month wind-down. These records will reside with telcos and be returned only in exchange for specific searches based on "reasonable articulable suspicion."

Unfortunately, this order doesn't bode well for the newly-created position of amicus curiae. Everything examined here in ad hoc, interim form is dismissed completely by FISA judge Michael Mosman. Barring a Supreme Court examination of bulk domestic collections or a revisiting of the issues central to Smith v. Maryland, arguing the public's case against bulk harvesting is going to be an exercise in futility.

Filed Under: bulk collection, fisa, fisa court, fisc, patriot act, phone records, section 215

Missing Document From FISA Court Docket Suggests Yet Another Undisclosed Bulk Records Program

from the given-the-preponderance-of-spy-programs,-why-not dept

The thing about transparency is that it's not just about what you reveal. It's also about what you choose to keep hidden. In the ongoing docket for the government's 2015 bulk records requests, there appears to be a missing document.

BR 15-75 (BR = "business records," "15" = 2015) -- the government's request to have 180 days' worth of "business [records] as usual" collections before the limitations of the USA Freedom Act kick in -- is present. So is the opinion addressing the repercussions of the passage of USA Freedom, which is denoted as "BR 15-77, BR 15-78." But where -- and what -- is BR 15-76?

Patrick Toomey at Just Security has a theory:

It’s hard to be certain, but it’s likely that BR 15-76 is an application to restart the phantom CIA bulk financial records program or another undisclosed bulk collection program. Beginning in late 2013, multiple outlets reported on the CIA’s bulk collection of Americans’ international money transfer records from companies like Western Union and Moneygram. Other outlets stated at the time that the CIA program overlapped significantly with efforts to collect “financial transaction data” by both the NSA and the Treasury Department. And according to the New York Times, beyond the CIA program, several officials “said more than one other bulk collection program has yet to come to light.”

If Toomey is correct, I wonder how long said "undisclosed program" will remain undisclosed. Others have come to light over the years, including the DEA's concurrent collection of domestic phone records, something it apparently ditched to give the DOJ only "one" bulk records collection to defend publicly.

Previous to the post-Snowden era of begrudging transparency, omissions are no longer going to go unnoticed. In the discussion of the BR 15-77,78 opinion, it was noted that no order was attached, meaning the government has presumably not yet received a go-ahead from the court on phone metadata. Ever since the Office of the Director of National Intelligence engaged Transparency Mode, the FISA Court has regularly delivered orders and opinions on the NSA's bulk collection activities. While some orders have been shortly delayed, there's never been a complete omission, nor this long of a gap between expiration of a previous order and a reinstatement of the collection request.

Now that the FISC is playing along with the new transparency, omissions of any sort are simply unacceptable. As Toomey states, if this missing paperwork is related to another bulk records collection (possibly one authorized under pre-Patriot Act stipulations), it's not acceptable that the government has chosen to withhold it from the public. The public doesn't have less right to know about the harvesting of its records simply because said program hasn't been forced out into the open yet.

Filed Under: bulk records, docket numbers, fisa court, fisc, patriot act, section 215, surveillance, transparency, usa freedom act

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

FBI Successfully Stonewalls Inspector General Into Irrelevance By Withholding Timely Section 215 Documents

from the you-can't-oversee-what-you-can't-actually-see dept

The FBI doesn't just stonewall FOIA requesters. It also stonewalls its in-house investigator. Remember all those deferrals to "lawful authority" and "rigorous oversight" the agency makes when not commenting on controversial surveillance programs? Those really don't mean anything if you lock out the oversight and prevent his office from verifying whether surveillance is being carried out in accordance to laws and FBI policies.

Inspector General Michael Horowitz has been fighting a courageous, but losing, battle against FBI secrecy. As the head of the DOJ's OIG office, you'd think FBI officials would throw a small amount of deference his way. But no. They don't. It has obstructed his investigative work "for years," leading to this sort of thing:

[Horowitz] said the refusal to grant routine requests stalls investigations, including a recent one on FBI material witnesses, such that officials who are under review have sometimes retired or left the agencies before the report is complete.

The FBI won't even release an organizational chart to him. Horowitz took these complaints to Congress earlier this year in hopes of prompting FBI document production by threatening its annual budget.

Section 218 of the Appropriations Act does not permit the use of funds appropriated to the Department of Justice to deny the OIG access to records in the custody of the Department unless in accordance with an express limitation of Section 6(a) of the IG Act. The IG Act, Section 6(a), does not expressly or otherwise limit the OIG's access to the categories of information the FBI maintains it must review before providing records to the OIG. For this reason, we are reporting this matter to the Appropriations Committees in conformity with Section 218.

This, surprisingly, failed to have any effect -- not because the FBI might have deduced Horowitz was actually serious about obtaining the long-delayed documents, but because if there's anything government agencies fear more than a loss of power, it's a loss of funding.

Marcy Wheeler points out that -- during the ruckus surrounding the expiration of Section 215 -- the FBI again passed several of its self-imposed deadlines for document delivery.

The OIG has sent four letters to Congress to report that the FBI has failed to comply with Section 218 by refusing to provide the OIG, for reasons unrelated to any express limitation in Section 6(a) of the IG Act, with timely access to certain records in ongoing OIG reviews. Those reviews are:

• Two FBI whistleblower retaliation investigations, letter dated February 3, 2015, which is available here;
• The FBI documents related to review of the DEA’s use of administrative subpoenas, letter dated February 19, 2015, which is available here;
• The FBI’s use of information derived from collection of telephony metadata under Section 215 of the Patriot Act, letter dated February 25, 2015, which is available here; and
• The FBI’s security clearance adjudication process, letter dated March 4, 2015, which is available here.

As of March 31, 2015, the OIG document requests were outstanding in every one of the reviews and investigations that were the subject of the letters above.

Of particular importance is the delay of documents related to the FBI's use of Section 215 collections. Obviously, having the chance to review this before the vote on reauthorization would have been preferable. If there were any questions about the FBI's involvement, or its use of the collected data, these observations could have potentially played a key role in the provision's renewal, not to mention contributed to the debate surrounding the USA Freedom Act.

Obviously, the FBI preferred to keep legislators in the dark about its participation in Section 215. An ill-informed legislature is more prone to rely on fear-mongering and other baseless assertions. With nothing stating otherwise, the FBI is free to operate under the illusion that its use of the program is by-the-book and that the program itself is effective and useful.

Horowitz is one of the few government officials willing to stand up to the FBI. Unfortunately, it hasn't resulted in better behavior by the agency. Apparently, the FBI feels it does best with minimal oversight and isn't inclined to let anyone -- not even its in-house inspector -- in on its domestic surveillance tactics.

Filed Under: doj, fbi, inspector general, michael horowitz, patriot act, public debate, section 215

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