DOJ Asks To Hang Onto Bulk Collections Longer, Citing Need To 'Preserve' Evidence It Has No Intention Of Presenting In Court

from the deck-stacking-at-its-finest dept

The DOJ is asking the courts to extend the amount of time it can hold onto bulk metadata records. The use-by date is normally five years, but the DOJ wants more time. It's stated reason for the request is to prevent spoliation of evidence that might be needed in the several lawsuits filed against the government since the exposure of the NSA's bulk collection programs.

Some things to note: the DOJ is asking for the first FISA order of 2014 to be amended to remove the 5-year expiration date, which seems to indicate that the amendment won't affect anything previously collected. The storage limit has been five years since at least 2006, so what the DOJ is asking for is for data to be held indefinitely, for an indefinite period going forward.

Obviously, this carves a rather large hole in the NSA's (already minimal) minimization procedures. The DOJ claims the retained data will be reserved for "non-analytic" purposes, but I don't really see how the it can make that assertion, considering the NSA, at this point, still collects and stores it. Searches could be limited to five years from date of search, but this presumes a lot of an agency run by people who routinely "explore the edges of the box." (Granted, historical data tends to become less useful the older it gets, but there are hardly any limits placed on the NSA's collection abilities, so it's really not a good idea to let the government start stripping these few stipulations away.)

What's absolutely disgusting about this request is the fact that the DOJ has no interest in allowing these records to be admitted as evidence. In fact, the DOJ has already withheld this information from several defendants, effectively preventing them from discovering where the government obtained the evidence being used against them. The DOJ is talking a good game about due process, etc., but its track record shows it's willing to keep this information hidden for as long as possible.

Before the leaks, the DOJ didn't even have to acknowledge it used these programs to gather evidence against defendants. Before the leaks, other national law enforcement and investigative agencies were given this evidence and instructed to construct a paper trail to cover up the origins. The DOJ can't really get away with this anymore, but that won't stop it from pretending national security concerns outweigh a defendant's need to know what evidence is being used and how it was derived. And that's not even addressing those already imprisoned using evidence the DOJ actively hid from defendants, as Marcy Wheeler at emptywheel points out.

Of course, it was only 24 hours ago when DOJ was last caught violating that principle in Section 702, abrogating a defendant’s right to know where the evidence against him came from. And there are a whole slew of criminal defendants — most now imprisoned — whose 702 notice DOJ is still sitting on, whose rights DOJ felt perfectly entitled to similarly abrogate (we know this because back in June FBI was bragging about how many of them there were). So I am … surprised to hear DOJ suggest it gives a goddamn about criminal defendants' rights, because for at least the last 7 years it has been shirking precisely that duty as it pertains to FISA.

Wheeler also notes that the DOJ may be pretending to be concerned about the lawsuits it's currently facing, but it expressed no similar concern in the years before Snowden's leaks exposed the NSA's programs.

[A]s EFF's Cindy Cohn pointed out to the WSJ, Judge Vaughn Walker issued a retention order in EFF’s 2008 suit against the dragnet.

"Ms. Cohn also questioned why the government was only now considering this move, even though the EFF filed a lawsuit over NSA data collection in 2008.

In that case, a judge ordered evidence preserved related to claims brought by AT&T customers. What the government is considering now is far broader."

At that point, the DOJ has no problem letting evidence against the NSA expire, but now it wants an indefinite extension to records going forward, using the pretense that it cares about due process as leverage. The NSA wins either way. Longer retention means more access to the collection, on or off the books. And it knows the incredibly misnamed Dept. of Justice will do its best to keep collected surveillance data out of the harsh judicial sunlight.

Filed Under: bulk collection, doj, fisa, nsa, privacy

Intelligence Community Says President Obama's Non-Plan To 'End' Metadata Collection Is 'Impossible'

from the shockingly-unshocking dept

What do you get when the President of the United States, rather than take a stand and act as a leader, decides to try to "balance" everything by pretending to promise to end the Section 215 bulk metadata collection, while promising to "retain its capabilities"? And then, after announcing that non-plan, tossing it over to the Attorney General and Congress to sort out the details? Yeah, you get a whole lot of nothing. And, folks in the intelligence community are basically saying that nothing's going to change because what he's suggesting isn't really possible.

“The idea that this complicated problem will be solved in the next two months is very unlikely, if not impossible,” said one official with knowledge of the discussions. “It is not at all inconceivable that the bulk collection program will stay the same, with the records held by the government until 2015,” when the law that authorizes the bulk collection is set to expire.

And, of course, many assume this was the plan all along. Say that they're ending the program while promising to keep the capabilities, then punt the issue to others to work out, and you pretty much guarantee the status quo for quite some time. Perhaps permanently. This wasn't leadership, this was passing the buck. And that's why most of the intelligence community seems perfectly happy with the result.

Filed Under: barack obama, bulk collection, intelligence community, metadata, nsa, section 215, surveillance

James Clapper's Latest Section 215 Doc Release Shows NSA Behavior, Redaction Skills Both Questionable

from the unofficial-doc-releases-still-preferable,-easier-to-read dept

The ODNI released another batch of Section 215 court orders on Friday, and as usual, it was prefaced with the same statement by James Clapper that obfuscates the fact that these document releases were compelled by an EFF lawsuit.

These releases reflect the Executive Branch’s continuing commitment to make information about the implementation of Sections 501 and 702 publicly available when appropriate, while ensuring the protection of the national security of the United States.

I'm not entirely sure the Executive Branch's "commitment" is any less compelled than the ODNI's document releases. Obama has said he "welcomes the debate" on national security, but it's a bit like "welcoming" someone who has kicked in your door and made himself comfortable on your couch. It's more "confrontation" than "conversation."

Either way, there's not a ton of surprising stuff in these documents, thanks to the release of an unredacted court order by The Guardian back in June of last year. The verbiage has morphed over the last several years (the docs released date back to 2006 -- the point at which the collection was "authorized") with the greatest changes occurring after Judge Walton nearly shut the program down (for "systemic abuse" of the collection since its inception three years earlier) in March of 2009.

Here's what's worth noting from the latest ODNI document dump.

A footnote that appears in many of the orders gives us some idea how many numbers have made their way back to the FBI since the program's inception. The earliest order released (dated 8-18-06) states this:

The Court understands that NSA expects that it will continue to provide on average approximately two telephone numbers per day to the FBI.

Three months later (11-13-06), the number of "tips" increases:

The Court understands that NSA expects that it will continue to provide on average approximately three telephone numbers per day to the FBI.

There may be several redundancies in the NSA's tipped numbers (presumably the NSA doesn't concern itself with ensuring it hasn't tipped a number before) but the raw numbers indicate the FBI is receiving 1,095 tips per year, per telco. It's by no means a massive number compared to the entire collection, but it's still a lot of numbers for the nation's second largest national security agency to investigate.

The next point of interest appears in an amendment to a 2007 order, this one signed by Judge Kollar-Kotelly. Whatever the NSA was searching its collection for apparently didn't fall within the normal "counterterrorism" confines. The text is very heavily redacted, but the words remaining around the edges suggest a non-national security target.

3. The results of each such query shall be segregated to the extent feasible until BR 07-10 expires or [xxxxxxxxxx] whichever comes first.

4. Upon the conclusion of [xxxxxxxxx] or at the time of the renewal application, whichever comes first, NSA shall submit a written report to the Court stating why the results of any query conducted pursuant to this Motion should not be destroyed.

5. This amendment is strictly limited to allowing queries of the metadata [xxxxxxxxx] and does not apply to queries for the purpose of [xxxxxxxxx].

[The text doesn't show the lengths of the redacted areas, so this screencap might be a little more relevant.]


As of January 2008, querying the metadata database was restricted to approval by "one of eight people." But by the following order (04-03-08), this number had mysteriously swelled to twenty-three. There's no documentation or explanation given for the expanded roster of query-approval personnel on what is basically the renewal of the previous court order. (This one is signed by a different judge, however.) This may be just be one example of the "systemic abuse" called out by Judge Walton in his near-dismantling of the program -- a tripling of query approvers for a database whose access was supposed to be very strictly controlled.

What is likely Judge Walton's first court order since his February 2008 order temporarily halting the NSA's bulk records collection notes that approvals to search the database will only be approved on a case-by-case basis until further notice. Unfortunately, this order also gives the agency a convenient way to avoid having to seek the court's prior approval.

[I]f the government determines that immediate querying of the BR metadata through contact chaining [xxxxxxxxxxxxxxx] is necessary to protect against an imminent threat to human life, the government may query the BR metadata for such purpose. In each such. case falling under this latter category, the government shall notify the Court of the access, in writing, no later than 5:00 Eastern Time on the next business day after such access.

Walton's court order dated Feb. 26, 2010 contains a number of new additions not seen in previous orders. Most notably, it details the NSA's (compelled) decision to fix its software to limit the number of "hops" an analyst could take during contact chaining.

In addition, the Court understands from the Declaration of Lieutenant General Keith B. Alexander, Director of NSA (Ex. A to the Report of the United States filed in docket number BR on August 17,2009) that NSA has made a number of technical modifications that will prohibit a) from inadvertently accessing the BR metadata in [xxxxxxx]; b) from querying the BR metadata in [xxxxxxx] with non-RAS-approved identifiers; and c) from going beyond three "hops" from an identifier used to query the BR metadata in [xxxxxxx].

How many "hops" did NSA analysts (this same order notes there are 125 analysts* approved to search the BR database) take before this implementation? Three years down the road from the program's beginning, the NSA is finally forced to admit it has a problem (well, several actually) and implemented the sort of software-based restrictions it should have had in place in 2006.

* This number seems to have been redacted needlessly in the renewal of the February court order.


It also notes the administration will be given access to BR data in order to "determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings." The follow-up question (which still has no real answer) is what does the Executive Branch do with this info? Does it get buried? Is it barred from being admitted as evidence because it would "damage national security," even though it could spring an innocent person? From what we've seen in previous cases, it appears as though the government is more willing to imprison someone than allow surveillance data to be admitted as evidence.

Also of note is this particular redaction, the length of which indicates this order is aimed at AT&T. (Gotta love monospaced fonts.)


This isn't the only document in which the NSA exposes something inadvertently. A January 2011 court order duly redacts anything worth noting, including the recipient of the order, right up until page 4, where this slips through.


Finally, two supplemental orders from 2011 indicate the NSA was also gathering credit card information along with the rest of the metadata, possibly inadvertently. Both contain the following paragraph.

It is hereby ORDERED that such reports, in addition to the elements described in Paragraph shall include a discussion of NSA's consideration and, to the extent feasible, implementation of methods of purging the credit card information produced by [xxxxxxx] and described in letters submitted by the government on March 1, 2011, and April 13, 2011, in Docket Nos. BR 10-49 and BR 10-70.

Note the time difference between the letters from the government and the orders to which they refer. Both BR collections were authorized by court orders in 2010 (10-49 was signed 08-04-10 and 10-70 on 10-29-10). At the very least, the NSA was sweeping up credit card info for nearly six months before it was pointed out.

What these documents show is that the NSA does have several layers of accountability and oversight, much of which has been in place since the inception of the Section 215 program. Unfortunately, most of these controls are internal, making the word "oversight" rather meaningless. As Walton discovered before issuing his order halting the program, any oversight outside of the agency had to rely on the NSA's portrayal of its activities, something that was rarely accurate.

And there's reason to believe that much of what was implemented as a result of Walton's court order has been less than rigorously enforced over the last few years. The orders following this pivotal point ran 10-13 pages and were loaded with restrictions and reporting requirements. The order leaked by Snowden from April 2013 runs only 4 pages and limits disclosure of the data, but very little else. The extensive reporting requirements implemented in 2009, as well as the stipulations restricting the number of people authorized to give query approval, are no longer present. Given what happened during the first three years of the program, this lack of mandated controls doesn't exactly inspire confidence that abuses aren't ongoing.

Filed Under: bulk collection, fisc, james clapper, metadata, odni, section 215

FISA Court Tells The DOJ That It Needs To Explain Why It's Ignoring Order To Declassify Surveillance Opinion

from the can't-just-say-no dept

Yesterday, we wrote about the DOJ responding to a FISA Court order that it declassify a FISA Court ruling on the interpretation of Section 215 of the PATRIOT Act (related to the bulk collection of metadata), in which the DOJ effectively told the court that it wasn't going to obey. This was the extent of the DOJ's reasoning:

After careful review of the Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided

Basically, yes you told us to declassify it, but we've decided that we won't. Now, of course, the FISA Court itself is well aware what's in that particular February ruling, and since it ordered it to be declassified, it doesn't seem to think there's a major reason to keep it secret. So, it took all of a day for the FISA Court to order the DOJ to at least explain itself better:

The government has provided no explanation of this conclusion.

Accordingly, it is hereby ORDERED that, no later than December 20, 2013, the government shall submit a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form.

Of course, in keeping with FISC tradition, this is a pretty tame response to the DOJ basically giving a giant middle finger to the FISC's earlier order. And, again, the FISC knows darn well what's in the ruling that the DOJ refuses to make public, because it's the FISC's own ruling. So they seem to think that there's good reason to declassify it. Hopefully, the FISC will actually, for once, stand up to the DOJ, but I'm not holding my breath.

Filed Under: bulk collection, declassification, doj, fisa court, fisc, metadata, nsa, patriot act, section 215, surveillance

Senators Tell Court There's No Evidence That Bulk Phone Record Collection Was Useful

from the now-that's-an-amicus-brief dept

Here's something you don't see every day: three sitting US Senators filing an amicus brief against the federal government. Amicus (friend of the court) briefs can sometimes be quite useful, but all too often they're sort of there to just reinforce certain arguments made by some of the parties. Sometimes that's helpful, because at times they can present things in a way that is very useful for the court to understand things. It's somewhat rarer for an amicus to really have a unique insight into the issue. But here's one case where there's an amicus brief with a truly unique perspective. Senators Ron Wyden, Mark Udall and Martin Heinrich are asking to file an amicus brief in one of the big cases over the NSA's bulk collection of metadata from all phone calls. This is the case that was organized by the EFF, involving a variety of organizations, from churches to gun rights organizations to civil liberties groups and more.

The three Senators, all members of the Senate Intelligence Committee, have submitted amicus briefs to share with the court that, from what they've seen, there's no evidence that the bulk data collection program has been at all useful -- which is likely to be a key claim by the DOJ.

Now that the government’s bulk call-records program has been exposed, the government has defended it vigorously. Amici submit this brief to respond to the government’s claim, which it is expected to repeat in this suit, that its collection of bulk call records is necessary to defend the nation against terrorist attacks. Amici make one central point: As members of the committee charged with overseeing the National Security Agency’s surveillance, Amici have reviewed this surveillance extensively and have seen no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through less intrusive means. The government has at its disposal a number of authorities that allow it to obtain the call records of suspected terrorists and those in contact with suspected terrorists. It appears to Amici that these more targeted authorities could have been used to obtain the information that the government has publicly claimed was crucial in a few important counterterrorism cases.

They further point out that beyond the lack of usefulness, the implications of the federal government's interpretation of the law has a very wide impact. However, the real focus of the filing is on the supposed usefulness, and the Senators don't pull any punches. They directly call out the NSA and its defenders for trying very hard to misrepresent and mislead the public record:

As Amici and others have made clear, the evidence shows that the executive branch’s claims about the effectiveness of the bulk phone-records program have been vastly overstated and, in some cases, utterly misleading....

For example, the executive branch has defended the program by claiming that it helped “thwart” or “disrupt” fifty-four specific terrorist plots.... But that claim conflates the bulk-collection program with other foreign-intelligence authorities.5 In fact, as Amici know from their regular oversight of the intelligence community as members of the SSCI, “it appears that the bulk phone records collection program under section 215 of the USA Patriot Act played little or no role in most of these disruptions.” .... Indeed, of the original fifty- four that the government pointed to, officials have only been able to describe two that involved materially useful information obtained through the bulk call-records program.... Even the two supposed success stories involved information that Amici believe—after repeated requests to the government for evidence to the contrary—could readily have been obtained without a database of all Americans’ call records....

In both public statements and in newly declassified submissions to the SSCI, intelligence officials have significantly exaggerated the phone-records program’s effectiveness. Based on the experience of Amici, the public—and this Court—should view the government’s claims regarding the effectiveness of its surveillance programs with searching skepticism and demand evidence rather than assurances before accepting them.

The Senators are not the only amici. There are others, including from a group of experts in the history of government surveillance (including noted NSA watcher, James Bamford), a bunch of news organizations (including the American Society of News Editors, the LA Times, McClatchy, the Newspaper Guild, Advance Publications and more), criminal defense lawyers (who apparently are realizing how the NSA has been funneling and laundering data used against their clients under "parallel construction") and PEN American Center, a non-profit representing a bunch of writers. Still, having Senators jump into the case is big news, even if Wyden and Udall have been making their opinion clear for some time.

Filed Under: bulk collection, mark udall, martin heinrich, metadata, nsa, nsa surveillance, patriot act, ron wyden, section 215

Feds: Even Though We've Been Ordered To Reveal Secret Interpretation Of The PATRIOT Act, We're Not Going To Do That

from the secret-laws! dept

You may recall that, back in early September, the FISA Court (FISC) agreed that its various rulings that secretly interpreted Section 215 of the PATRIOT Act to mean something entirely different than any plain language reading of the law implies should be declassified. Here's what the court said at the time:

The unauthorized disclosure in June 2013 of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215. Publication of FISC opinions relating to this provision would contribute to an informed debate. Congressional amici emphasize the value of public information and debate in representing their constituents and discharging their legislative responsibilities. Publication would also assure citizens of the integrity of this Court's proceedings.

In addition, publication with only limited redactions may now be feasible, given the extent of the government's recent public disclosures about how Section 215 is implemented. Indeed, the government advises that a declassification review process is already underway.

In view of these circumstances, and as an exercise of discretion, the Court has determined that it is appropriate to take steps toward publication of any Section 215 Opinions that are not subject to the ongoing FOIA litigation, without reaching the merits of the asserted right of public access under the First Amendment.

It then instructed the DOJ to figure out what to redact, so it could be declassified and released. Except... the DOJ instead fought that order, and while it did find some documents that meet the criteria -- namely a ruling from February of this year -- the DOJ is now telling the FISA Court that despite the order, it would really prefer to keep that interpretation of the law a complete secret. Actually, it goes further than that. It doesn't ask for permission to keep it secret, it just says that it cannot reveal the interpretation.

After careful review of the Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided.

Got that? This secret court interpretation of a law that we all live under, which the court itself has ordered to be revealed, is unlikely to be revealed because the intelligence community really, really doesn't want it revealed. Again, this is not about so-called "sources and methods." This is entirely about understanding how a US court interprets a US law. But that interpretation is secret, meaning that the law itself is secret, and apparently the executive branch of the federal government is going to fight to keep it that way.

Filed Under: bulk collection, doj, fisa court, fisc, metadata, patriot act, section 215, surveillance

FBI And CIA Use Patriot Act's Bulk Data Collection To Get Money Transfer Data

from the of-course-they-do dept

You didn't think that the bulk collection of phone record information was the only set of records that the intelligence community collected in bulk under the PATRIOT Act, did you? Of course not. That provision says it can be used for "any tangible thing," and since that seems to include bulk data collection, money transfer info sure would be handy for the feds. Both the NY Times and the Wall Street Journal are running fairly detailed stories about this bulk collection of money transfer data, which is managed by the FBI, but where the data is quickly shipped on to the CIA. They claim that they're focused on foreign-foreign transactions, but sometimes they'll collect Foreign-Domestic transfers as well.

The NY Times piece has a fun section describing all the little ways NSA and other intelligence officials have more or less let it slip that a program like this was going on -- but also quotes someone saying that there's at least one more type of bulk collection that hasn't been revealed yet (and it may be more than one). The WSJ article reveals that Congress only just found out about this program over the summer, even though it's been approved by the FISA Court for a while -- so the usual defenses from the NSA's best friends is inevitable: "it's all legal," they'll say. That said, the report also notes that some in Congress were quite worried.

Of course, some others, even those who worked in the government, find this whole thing problematic. The WSJ piece has a great quote from Timothy Edgar, who worked as a private lawyer for the NSA and the Director of National Intelligence, where he basically tells them that this information should be public:

"The public has a right to know about the broad outlines of how the government is collecting information on them," he said, noting that the FISA Court has noted the existence of other collection programs. "As a matter of basic good governance, the government should be more transparent about these kinds of collection programs."

Yeah, but the US isn't really big on "good governance," is it? In the end, this might not be surprising (and should have you wondering about what other data troves the US collects via Section 215), but it's still quite revealing. It also reminds us that the government is likely collecting a lot more that hasn't been revealed yet.

Filed Under: bulk collection, cia, fbi, money transfers, nsa, patriot act, section 215, surveillance
Companies: western union

As Expected, USA Freedom Act Aims To Stop Worst NSA Abuses

from the a-step-in-the-right-direction dept

As was expected, a new bill to curb the NSA's excesses was introduced in both houses of Congress this morning, with very strong backing in both houses and on both sides of the aisle (in terms of having both powerful sponsors, and lots and lots of co-sponsors). The bill is not perfect, and it is not the final answer to all the NSA's activities, but it's a big step in the right direction -- stopping dragnet surveillance, reforming the way the FISA court works and adding some more transparency (we described many of the details in our post last week, and the bill matches what was expected). It has a decent chance of passing, but getting anything through Congress can be a chore these days. We'll be following what happens with this bill closely. You can see the full bill below or the quick two pager describing the details.

Filed Under: bulk collection, dragnet collection, fisa, fisa court, fisc, james sensensbrenner, nsa, nsa surveillance, pat leahy, usa freedom

Snowden Rebuts Sen. Feinstein's Claims That The NSA's Metadata Collection Is 'Not Surveillance'

from the yeah,-i-know.-and-a-collection-is-not-a-collection.-got-it. dept

Ed Snowden has briefly stepped up to the mic to rebut Dianne Feinstein's claims that the NSA's bulk phone records collections are "not surveillance." While he didn't specifically name Feinstein, it's pretty clear who his comments are directed towards, what with the senator putting in overtime over the past few weeks defending the agency's cherished but useless Section 215 collections haystacks that are definitely not collections (according to the Intelligence Dictionary.)

"Today, no telephone in America makes a call without leaving a record with the NSA. Today, no Internet transaction enters or leaves America without passing through the NSA's hands," Snowden said in a statement Thursday.

"Our representatives in Congress tell us this is not surveillance. They're wrong."

Her op-ed for the USA Today stated the following:

The call-records program is not surveillance.

Why is it not surveillance? Feinstein claimed, in direct contradiction to someone who's seen most of the inner workings of the agency's programs, that because it doesn't sweep up communications or names, it isn't surveillance. Also, she pointed out that surveillance or not, it's legal. So there.

Maybe Feinstein considers the term "surveillance" to mean something closer to the old school interpretation -- shadowy figures in unmarked vans wearing headphones and peering through binoculars.

Of course, this kind of surveillance contained many elements completely eliminated by the combination of the PATRIOT Act, the FISA Amendments Act, and a very charitable reading of the Third Party Doctrine. You know, the sort of stuff those shadowy men used to utilize: warrants, targeted investigations, reasonable suspicion, a grudging working relationship with the Fourth Amendment…

That's all gone now. The courts have declared that sweeping up business records on millions of Americans is no more a violation of the Fourth Amendment than gathering metadata on a single person. The NSA has warped the definition of "surveillance" just as surely as they've warped the definition of "relevant." The wholesale, untargeted gathering of millions of "transactions" from internet and phone activity doesn't seem to resemble what anyone might historically think of as "surveillance," but it's surveillance nonetheless.

Sure, the NSA may not look at everything it gathers, but it has the capability to do so and it shows no interest in letting any of its dragnets be taken out of commission. The NSA's defenders downplay the agency's many intrusions by first playing the "legal" and "oversight" cards and, when those fail to impress, belittle their critics by trotting out condescending statements like, "The NSA isn't interested in Grandma's birthday phone call or the cat videos you email to your friends."

Well, no shit. We're hardly interested in that, either. We're not worried about the NSA looking through tons of inane interactions. We know it doesn't have the time or inclination to do so. We're more concerned it's looking at the stuff it finds interesting and amassing databases full of "suspicious" persons by relying on algorithms and keywords -- a fallible process that robs everything of context and turns slightly pointed hay into the needles it so desperately needs to justify its existence.

What makes this even more frightening is that the agency then hands this unfiltered, untargeted, massive collection of data off to other agencies, not only in the US but in other countries, subjecting innocent Americans' data to new algorithms, keywords and mentalities, increasing the possibility of false positives.

But what we're mainly concerned about is the fact that an agency that claims its doing this to combat terrorism can't seem to come up with much evidence that its programs are working. The NSA has deprived us of civil liberties while delivering next to nothing in terms of security. Americans have been sold out to a data-hungry beast, and even if it's not officially "surveillance," it's still completely unacceptable.

Filed Under: bulk collection, dianne feinstein, ed snowden, nsa, nsa surveillance, surveillance

FISA Court Tries, Once Again, To Justify Allowing Bulk Collection Of Data On All Your Phone Calls

from the let's-try-this-again dept

Last week, the FISA Court (FISC) renewed yet again (as it has every few months for over 7 years) the ability of the government to demand data on every phone call from American telcos. Last month, the FISC (for the first time) published its rationale for allowing the collection -- one that many experts found extremely lacking. Not only did the court incorrectly state that members of Congress were fully aware of the details of the program when they renewed it, but it also made up some of its own rules and ignored some of the Supreme Court's statements on such forms of data collection.

Today, the court has declassified the new justification that was written up for this latest round of rubber-stamping, and it's written by a different judge than before. This time, it's Judge Mary McLaughlin, who notes that this is the first time she's had to review such an application, but for the most part she "agrees with and adopts" the reasoning used back in July by Judge Eagan to justify the collection. However, she also attempts to go into a little more detail, perhaps in response to the public criticism to Eagan's reasoning. Eagan's ruling stated the following:

In light of the importance of the national security programs that were set to expire, the Executive Branch and relevant congressional committees worked together to ensure that each Member of Congress knew or had the opportunity to know how Section 215 was being implemented under this Court's Documentation and personnel were also made available to afford each Member full knowledge of the scope of the implementation of Section 215 and of the underlying legal interpretation.

Unfortunately, as many have pointed out (and the White House has admitted) this is not true. Rep. Mike Rogers did not share the details with members of the House, despite the White House recommending strongly that he do so. While he did set up "briefings" with the NSA, they were clearly designed to keep Representatives in the dark. Among the many tricks that Rogers pulled, was sending announcements of the briefings to what's considered the "spam folder" of representatives, holding them at very inconvenient times (when most Reps. were out of town) and then leaving it up to the Reps. to guess what they should be asking about.

In this latest ruling, McLaughlin doesn't make the claim as directly as Eagan did, but still suggests that every member of Congress "had the opportunity to learn about the scope of the metadata collection and this Court's interpretation of Section 215." Thus, because they reauthorized it (thanks mostly due to fear-mongering by the heads of the Intelligence Committees), it must mean that Congress approved of the interpretation of the law. That seems specious, at best. It's increasingly clear that the heads of the intelligence committees actively sought to mislead others in Congress over these programs. Pretending that they were well informed is simply fiction. The very fact that so many in Congress (including some on the Intelligence Committee) have noted that they were kept in the dark about many important details, Judge McLaughlin is playing games here that don't reflect reality.

She also attempts to deal with the fact that in the Jones GPS case, the Supreme Court indicated that when there's bulk collection of data, it's possible to cross over from not being a 4th Amendment violation, to being one. In other rulings, the suggestion had been that if a single data point wasn't a 4th Amendment violation, then the bulk collection couldn't be either -- even though Justice Alito's opinion in Jones strongly argued otherwise. McLaughlin tries to hand-wave this away:

The Supreme Court's more recent decision in United States v. Jones... does not point to a different result here. Jones involved the acquisition of a different type of information through different means.

More specifically, she argues that because Jones was about monitoring and this case is about collection it's different. That also seems questionable, as Alito himself made the comparison to wiretapping. To argue that they're not analogous seems like it's ignoring what was said. McLaughlin does, legitimately, point out that Justice Sotomayor's opinion suggested that the whole notion of the 3rd party doctrine (saying there's no 4th Amendment protection for information given to a third party) should be revisited, but that the Court declined to do so in Jones.

Hopefully, this is setting up a situation in which the Supreme Court will no longer be able to punt the issue, as it did in Jones, and we can get some renewed respect for the 4th Amendment, especially in cases where bulk data is collected and accessed by government officials.

Filed Under: 3rd party doctrine, bulk collection, fisa, fisa court, fisc, metadata, patriot act, section 215, supreme court