Administration Pursues Charges Against Another Whistleblower

from the more-'notch'-than-'belt'-by-this-point... dept

Another whistleblower is facing charges brought by this administration -- one that has prosecuted more whistleblowers than all other administrations combined. Thomas Tamm, a DOJ lawyer during the Bush era, exposed the NSA's super-secret domestic surveillance program, whose authorization ran directly from the Attorney General to the Chief Judge of the FISA Court.

His whistleblowing led to a Pulitzer for the New York Times. The information Tamm gave to NYT reporters detailed something referred to only as "the program." The two-person approval process eliminated much of the paper trail and allowed the NSA to perform warrantless domestic surveillance. Colleagues of Tamm's at the DOJ's Office of Intelligence Programs and Review even told Tamm this was "probably illegal."

As Cyrus Farivar points out, Tamm has spent several years being investigated, but, so far, nothing has stuck. In 2007, his house was raided by 18 FBI agents who seized every electronic device they could find in Tamm's house and pressured him to plead guilty to espionage charges. Two years later, Tamm received the "Ridenhour Truth-Telling" prize. Two years after that, the government dropped the espionage charges.

But the government isn't done with Tamm. In what it likely views as a wrist slap, it's bringing ethics charges against Tamm for bypassing the "proper channels" to expose government wrongdoing. Basically, it's a bar complaint -- the government's last-ditch attempt to make Tamm pay for making it look bad.

Respondent became aware that there were some surveillance applications that were given special treatment. The applications could be signed only by the Attorney General and were made only to the chief judge of the Foreign Intelligence Surveillance Court. The existence of these applications and this process was secret.

Respondent learned that these applications involved special intelligence obtained from something referred to as "the program." When he inquired about "the program" of other members of the Office of Intelligence Policy and Review, he was told by his colleagues that it was probably illegal.

Even though Respondent believed that an agency of the Department of Justice was involved in illegal conduct, he did not refer the matter to higher authority within the Department.

For more than a decade, the government has gone after Tamm. All it's left with is this: a threadbare claim that Tamm's decision to bring this information to the press was a breach of trust. His "client" -- the DOJ -- was not handled in accordance with its "Rules of Professional Conduct." Still, it's more than the government actually needed to do. It could have used the opportunity to shut down a program that was considered "probably illegal" by other DOJ lawyers. Instead, it shot the only messenger it could: the person exposing the wrongdoing.

Filed Under: doj, ethics complaint, fisa court, surveillance, thomas tamm, whistleblower

FISA Court's Appointed Advocate Not Allowing Government's 'National Security' Assertions To Go Unchallenged

from the government-perturbed-by-amicus-sass-and-backtalk dept

The appointment of a FISA Court amicus to argue on behalf of the American public -- part of the surveillance reforms contained in the USA Freedom Act -- seems to be working out pretty well. FISC judge Michael Mosman appointed Washington DC attorney Preston Burton to examine one issue facing the court: whether the NSA can retain the bulk records it collected under Section 215. According to the new limitations, the NSA must immediately destroy any records that are not "foreign intelligence information." Unsurprisingly, the NSA is reluctant to begin this purge.

There are a certain amount of records the NSA must retain as they are part of ongoing lawsuits against the government. The NSA has stated that it's impossible to separate the phone records relevant to the lawsuits from the rest of the collection.

Burton -- in his response to the government's response to his original amicus brief -- doesn't find the NSA's claim of limited technical capabilities believable. In his first brief, he asked the following question:

Why has the government been unable to reach some stipulation with the plaintiffs to preserve only the evidence necessary for plaintiffs to meet their standing burden? Consider whether it is appropriate for the government to retain billions of irrelevant call detail records involving millions of people based on, what undersigned understands from counsel involved in that litigation, the government's stubborn procedural challenges to standing- a situation that the government has fostered by declining to identify the particular telecommunications provider in question and/or stipulate that the plaintiff is a customer of a relevant provided.

Faced with these pointed questions, the government chose to deploy its favorite dodge.

The government does not answer those questions. Instead the government reinvents the questions as suggesting:

...that the Government disclose national security information concerning the identity of providers, information subject to a pending state secrets assertion, is inappropriate, and the suggestion by amicus that the government stipulate to Article III standing in those cases is unfounded as a matter of law. Finally, the suggestion that preservation of bulk call detail records can be limited solely to the plaintiffs in multiple pending putative class actions is entirely unworkable.

Rather than answer questions about its alleged inability to retain only the records responsive to ongoing litigation, the government opted to raise the "national security" shield in hopes of shutting down this line of inquiry entirely.

Burton is unimpressed:

Amicus 's proposed inquiries were not quite the calamities the government conjures to avoid answering the questions. They were simply inquiries fostered by this Court's own observations that the preservation requirements conflict with minimization procedures designed to protect privacy rights of millions of uninvolved U.S. persons and to appropriately balance those privacy interests with the government's foreign intelligence justification for obtaining the information in the first place.

As Burton points out, the specifics of this program have been the subject of much public discussion, thanks to leaked documents which exposed the reach and breadth of the Section 215 collection. To pretend it's all still a huge secret is ridiculous. And yet, the government insists on doing so. The government's stance -- and its ongoing control of information it believes should be treated as "secret" -- leads to this incredible (in all the wrong ways) bit of redaction in Burton's response brief.


After censoring three sentences regarding "public discussion" of the program, the NSA allows Burton to have the last word on the most technologically-adept intelligence agency in the world claiming it's impossible to separate records it's been ordered to retain from records it's been ordered to destroy.

The government also states, without more, that limiting the records it holds to those belonging to plaintiffs is "entirely unworkable." The Court may fairly probe whether that conclusory declaration is sufficient or meaningful. It would perhaps be expensive and time-consuming to segregate the data or otherwise pare the archive but that is a choice the government may be required to make in deciding whether to continue to burrow in on its standing and procedural challenges.

It's unclear as to how much of an effect the presence of an amicus will have on domestic surveillance programs going forward. It's also unclear as to how much of an input these appointed positions will have going forward. Here, the amicus was limited to addressing the issue of Section 215 bulk record retention/destruction. It's unlikely an amicus will be on hand to challenge government applications for telco record production -- at least not in every case.

But Burton's presence has served an important purpose. For the first time, the government's assertions are being challenged by someone other than a FISA judge. Judging from the tone of the government's response to the first brief, it's not thrilled it has to show its work when it comes to record collection and retention. If nothing else, the presence of an amicus may finally force the government to use something more creative than "national security" when justifying its actions.

Filed Under: amicus, fisa, fisa court, fisc, nsa, preston burton, section 215, surveillance, usa freedom act

The NSA Will Apparently Still Be Accessing The Old Phone Metadata It Said It Would No Longer Be Accessing

from the 'reform'-as-in-'maintain-status-quo' dept

The NSA's bulk phone metadata collection may no longer technically be a "collection" (the NSA now has to seek responsive metadata from telcos using targeted court orders), but that doesn't mean the agency isn't still seeking ways to keep the "dragnet" in "dragnet surveillance."

The NSA was only supposed to have access to previously collected bulk metadata for "analytic purposes." Apparently, "analyzing" the data also means searching the data, as was pointed out by FISA Court on Twitter (not affiliated at all with the actual FISA Court).

Fascinating: the Court will let NSA compare old bulk call data to new responses for a while. https://t.co/sY0PQxKJYM pic.twitter.com/XQrpeHnqOP

— FISA Court (@FISACourt) December 5, 2015

Fascinating: the Court will let NSA compare old bulk call data to new responses for a while.

The court finds that the USA Freedom Act did not expressly dictate limits on use of the metadata collected under Section 215 previous to the enactment of the surveillance reform bill. Because of this lack of statutory specificity, the court has agreed to grant NSA both access and extended retention of the data for two reasons.

The first is to verify the completeness of phone records obtained with targeted FISC orders.

[F]or a period ending on February 29, 2016, appropriately trained and authorized technical personnel will have access to the BR Metadata solely for the purpose of verifying the completeness and accuracy of call detail records produced under the targeted (i.e., non-bulk) production orders issued by the Court after November 28, 2015. According to the government, verification will involve a comparison of the two sets of records (i.e., the BR Metadata and call detail records received pursuant to subsequent, targeted orders). See Government Response at 9. NSA technical personnel will compare the number of call detail records produced for a specific selection term with the number of call detail records identified in response to a query of the BR Metadata using the same identifier. See id at 9-10. Such comparisons will help provide assurance that the new collection process is working as intended.

Extended retention of the bulk metadata will be permitted because the records themselves are still the subject of multiple lawsuits.

Analysis of the data will also double as a search of the data, mixing newly-obtained phone records with the old ones and muddying the line between what is explicitly permitted under USA Freedom and what isn't explicitly forbidden.

Once the NSA has obtained the responsive records, they will stay in the agency's hands for five years, presumably. At that point, they will become part of the larger collection -- some of which will never be destroyed.

Information obtained or derived from call detail records which has been previously disseminated in accordance with approved minimization procedures will not be recalled or destroyed.[2] Also, select query results generated by pre-November 29, 2015, queries of the bulk records that formed the basis of a dissemination in accordance with approved minimization procedures will not be destroyed.

[2] This practice does not differ from similar circumstances where, for example Court-authorized electronic surveillance and/or physical search authorities under Title I or III expire. While raw (unminimized) information is handled and destroyed in accordance with applicable minimization procedures, prior authorized disseminations and the material underpinning those disseminations are not recalled or otherwise destroyed.

It would appear that minimization, as far as the NSA is concerned, occurs at the point of handover from telcos. Records considered "minimized" by the FISA Court include those swept up by the agency's contact chaining, and these also will be compared to the "old" database for analytical purposes. As Marcy Wheeler explains, the dragnet isn't dead yet.

This means that everyone within two or three degrees of a target that the NSA has found interesting — potentially over the last decade — will remain available and subject to NSA’s analytical toys from here on out.

So, while some of the bulk metadata "ages off" at the five-year point, the NSA apparently considers "material" it has previously disseminated to other agencies or to its own analysts to be excluded from this time limit. How much data that involves is only known to the agency, which is being trusted to abide by the stipulations of the USA Freedom Act and destroy its Section 215 records once given the go-ahead from the FISA Court.

Filed Under: database, fisa court, metadata, nsa, phone records, section 215, surveillance

NSA Releases Latest Bulk Records Renewal Order On Same Day It Scores Win In DC Circuit Court Of Appeals

from the also:-normal-Friday-afternoon-document-dump dept

The FISA Court has approved another three-month extension of the NSA's phone metadata collection, allowing the agency to run out the clock on the USA Freedom Act-triggered "transition period" with no additional stipulations attached. The transition will apparently be "business as usual" right up to the expiration date (Nov. 29, 2015), at which point everything will suddenly be compliant with the new law.

Until that date, the NSA will still collect (and store) phone metadata in bulk. The only limitation in place at this point dates back to February 2014 -- when searches of the data haul were limited to court-approved "selectors" backed by reasonable, articulable suspicion.

The joint statement issued by the Office of the Director of National Intelligence (ODNI) and the DOJ discusses the impact of the USA Freedom Act extensively but makes no mention of court decisions or legal challenges possibly affecting the current collection of phone records in bulk. The FISA court order does mention ongoing lawsuits with implications on the collection as implemented, but simply orders the government to inform it of any changes it may need to make to the renewal order if a decision alters the bulk collection playing field.

The case that most threatened the current bulk collection was conveniently eliminated by the DC appeals court with oddly coincidental timing.

The appeals court decision was published on August 28th. On August 27th, the previous bulk records order expired. The new order commenced on the same day as the publication of the DC court's opinion -- which eliminated the possiblity of an injunction. This occurred nearly 9-1/2 months after arguments were heard from the court (Nov. 14, 2014) more than 18 months after the case was appealed. Synergistically, the court decided to file and publish its decision in favor of uninterrupted bulk collection the same day the NSA's renewal order kicked in.

This suggests the NSA leaned on the administration and the administration leaned on the court. I wouldn't go so far as to suggest the administration influenced the opinion, but it would seem to have been instrumental in the timing of the decision's release.

Filed Under: bulk records, fisa court, fisc, mass surveillance, nsa, patriot act, phone records, renewal, surveillance, usa freedom

Chris Christie So Obsessed With Increasing Surveillance He Pretends He Was A Fed On 9/11 Even Though He Wasn't

from the the-lies-your-politicians-tell dept

Other than when News Corp. used copyright to takedown its own feed from last night's GOP Presidential debates, there really wasn't much that was Techdirt-related. The only other significant moment was a bit of a debate between Chris Christie and Rand Paul concerning the NSA and government surveillance. As we've discussed before, Christie is a big time surveillance state supporter. He's argued that anyone opposed to NSA surveillance is guilty of "dangerous" thinking, has said that civil liberties worries about the NSA are "baloney" and has argued that Rand Paul is responsible for any future terrorist attacks, after Paul suggested that we shelve parts of the PATRIOT Act and obey the 4th Amendment.

The debate question focused specifically on Christie's comments that Rand Paul should be forced to appear in hearings before Congress if there's a future terrorist attack, to explain why he opposed greater surveillance. Reason summarized the back-and-forth:

“I will make no apologies ever for protecting the lives and the safety of the American people,” said Christie. “We need to give more tools to our folks to be able to do that, not fewer, and then trust those people and oversee them to do it the right way. As president, that’s exactly what I will do.”

Paul shot back immediately.

“I want to collect more records from terrorists, but less records from innocent Americans,” said Paul. “The Fourth Amendment was what we fought the Revolution over. John Adams said it was the spark that led to our War for Independence. I’m proud of standing for the Bill of Rights and I will continue to stand for the Bill of Rights.”

Christie insisted that Paul had given a “ridiculous” answer, since there is no way to tell the terrorists apart from the innocent American citizens. Paul responded that the way to discern the difference is to ask a judge for a warrant.

“I’m talking about searches, without warrants, indiscriminately of all American’s records, and that’s what I fought to end,” said Paul.

But there was one very odd moment at the very beginning, before the exchange above. Christie noted that he was appointed to his former job as a US Attorney on September 10th of 2001:

MEGYN KELLY: Do you really believe you can assign blame to Senator Paul just for opposing he bulk collection of people’s phone records in the event of a terrorist attack?

CHRISTIE: Yes, I do. And I’ll tell you why: because I’m the only person on this stage who’s actually filed applications under the Patriot Act, who has gone before the federal — the Foreign Intelligence Service court, who has prosecuted and investigated and jailed terrorists in this country after September 11th.

I was appointed U.S. attorney by President Bush on September 10th, 2001, and the world changed enormously the next day, and that happened in my state.

This is not theoretical to me. I went to the funerals. We lost friends of ours in the Trade Center that day. My own wife was two blocks from the Trade Center that day, at her office, having gone through it that morning.

I found that interesting, because I didn't know that. And perhaps the reason I didn't know that is that it's complete bullshit. As Marcy Wheeler points out on Emptywheel, Christie was actually nominated months later, with the announcement that he was going to be nominated released on December 7th, 2001

The President intends to nominate Christopher J. Christie to be United States Attorney for the District of New Jersey. Christie has been a partner with Dughi, Hewitt and Palatucci of Cranford, New Jersey since 1987. He is a graduate of the University of Delaware and Seton Hall University School of Law.

Christie took office in January 2002.

Also, it's the Foreign Intelligence Surveillance Court, not the Foreign Intelligence Service Court, as he says -- but that's the kind of thing that is probably a forgivable mistake in such a setting. But arguing that you were appointed months before you actually were seems like a pretty blatant lie and one you wouldn't make without deliberately seeking to mislead people. As Wheeler also points out, Christie's own official bio notes that he "was named U.S. Attorney for the District of New Jersey in 2002."

Also, for all his talk about he went before the court whose name he couldn't get right, that's actually not how it works. US Attorneys don't do that (others in the DOJ do it instead). Wheeler further points out that if what Christie implies is true, then he may have been making use of illegal wiretaps during his time on the job -- so perhaps that's why he doesn't want more scrutiny of the program:

Christie implies he was involved in the dragnet in question. He was US Attorney from January 2002 to December 2008 — so he in fact would have been in office during the two years when the phone dragnet worked through the Servic–um, Surveillance court, and four years of the Internet dragnet. But if, as he implies, he was involved in the dragnet for the entire span of his tenure — and remember, there were huge cases run out of Trenton right out of 9/11 — then he was also using the fruits of illegal wiretapping to do his job. Not Servic — um, Surveillance court authorized dragnets and wiretaps, but also illegal wiretaps.

Which may explain why he’s so invested in rebutting any questions about the legitimacy of the program.

Remember, when people have actually looked more closely at Christie's high profile cases, such as the Fort Dix Five, it was revealed as a totally bogus manufactured plot, in which it appears Christie pushed trumped up charges against a set of brothers who didn't seem to have anything to do with a terrorist plot at all.

Filed Under: 9/11, chris christie, debate, fisa court, fisc, lies

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

FISA Court Tackles Section 215 Mess, Public Advocates In New Opinion

from the bulk-collection-paused? dept

The FISA Court has released its opinion on the interim Section 215 collection activities. The government argued that it was owed six months of uninterrupted, plain vanilla Patriot Act collections, as provided for in the USA Freedom Act. While the new law significantly alters the NSA's collection methods, it was given 180 days to transition to an off-site "collection," housed by telcos and responsive only to targeted searches.

But a few points were still unclear. First, Section 215 did actually expire on May 31st. Only the passage of the USA Freedom Act prevented it from going completely dead, and even so, it's no longer a bulk collection. Second, the Second Circuit Court found the collection was illegal under current law. This finding has very limited jurisdiction, of course, and the appeals court has no control over the FISA Court. The FISC can consider this opinion (and it has), but the question of the legality of this bulk collection is still mostly unsettled.

Third, the USA Freedom Act provides for the appointment of five people to argue on behalf of the public and potential surveillance targets. The new order tackles this new stipulation… sort of. First of all, however, the FISA Court has the unenviable task of sorting out the numerous conflicts caused by the sunset of Section 215, and its almost immediate sunrise in mutated form, thanks to the provisions of the passed-at-the-last-minute USA Freedom Act.

Julian Sanchez at Just Security points out the FISC had a couple of options when interpreting the new law, the old law and various other legal questions.

Since reading USA Freedom as amending the post-sunset law would result in legal gibberish, in other words, the FISC reads the law as doing what Congress very obviously intended for it to do, not what a hyper-literal evil genie might read it as doing.

The opinion appears to authorize old-school Section 215 bulk collecting during the 180-day winddown. [As pointed out by Julian Sanchez, the opinion "pointedly" does not authorize this. What it does is provide for the collection as amended by the USA Freedom Act, which obviously isn't the same thing, and isn't how the government has interpreted the 180-day transition period.) What's more interesting is the order's discussion of the brand new advocates that will finally bring an adversarial presence to the court. Sanchez notes the FISC could have simply ignored this stipulation until after the 6-month temporary reauthorization was completed and USA Freedom's version of Section 215 kicked in. But it didn't. However, that doesn't exactly mean it's welcoming the additional arguments and scrutiny. In this opinion, the FISC rubberstamps itself.

First, it understatedly notes that things are all kinds of screwed up at the moment.

Although the statutory framework is somewhat tangled, the choice before the court is actually very clear and stark: as described below, it can apply well-established principles of statutory construction and interpret the USA FREEDOM Act in a manner that gives meaning to all of its provisions, or it can ignore those principles and conclude that Congress passed an irrational statute with multiple superfluous parts.

Having issued its mildly derogatory assessment of Schrödinger's Bulk Collection, the FISA Court moves on to declare that, despite the multiple legal entanglements and legislative changes, this particular request is so straightforward -- and its precedent sufficiently clear -- there's no need to ask a second opinion.

Under the circumstances, it does not appear that the assistance of an amicus curiae would materially assist the court in making that decision. The court therefore finds that it is "not appropriate" to appoint an amicus curiae in this matter, within the meaning of 50 U.S.C. §1803(i)(2)(A).

This would, of course, be the statute cited by the Second Circuit Court as not allowing for the bulk collection of records, but whatever. In this particular case, the FISA Court's assessment is likely correct. If it's expected to see this tangled mess the way legislators intended, rather than as a "hyper-literal evil genie," the government is free to collect bulk records for the next six months while transitioning to the new process. Anyone arguing on behalf of the public will just have to wait until the USA Freedom version goes into effect and attack any deficiencies then. As for the appeals court decision, it has very little bearing now that the Section 215 program is on the way to retirement. The passage of USA Freedom now provides for the legal authority needed to continue this collection, which will no longer be in bulk and much more likely to adhere to the Section 1803 provisions.

Sanchez points out an interesting omission -- if it is an omission -- that possibly indicates the government won't even be performing its long-running bulk collection for the next six months. As he notes, no additional order authorizing normal bulk collection has been issued. In the wake of the Snowden leaks, the FISA Court has been pretty punctual with the public release of authorization orders, but there's no order attached to this opinion.

Because the FISC has declined to take the 180-day escape hatch, and because they cannot plausibly invoke the “no brainer” exception, the court does intend to appoint an amicus to brief the question of whether bulk collection can continue during the six month transition window. Since it will take time to find an appropriate party, and there’s no indication of any further bulk order being issued as yet, it seems reasonable to infer that, at present, the bulk program remains suspended. Alternatively, the FISC may have issued a temporary order authorizing resumption of bulk collection for some quite short period, without an opinion, while it looks for an amicus and takes time to consider their arguments.   If they had in fact already issued an opinion and order reauthorizing bulk collection, after all, it would be quite strange to have issued a memorandum opinion dealing only with this narrow question, rather than bundling them all together.

If so, this would be the first time since 2009 that the bulk collection has been suspended for any length of time, which is significant on its own.

Filed Under: amicus, bulk collection, doj, fisa, fisa court, fisc, patriot act, public advocate, reform, usa freedom

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

Even If Congress Lets Section 215 Expire, The NSA May Be Able To Keep On Collecting Phone Metadata

from the your-expired-laws-have-no-power-here dept

The NSA's bulk phone metadata program is unstoppable. Despite being called out by legislators and the administration's civil liberties oversight board as unconstitutional and illegal -- and despite being targeted by several of the administration's surveillance reforms -- it continues uninterrupted and largely unchanged.

Legislators who watched their Section 215-targeting bills die on the Congressional floor are now watching the clock. This part of the PATRIOT Act is set to expire June 1st (as is the latest bulk metadata order) and if Congress doesn't act to renew it, the program will grind to a halt. Or so you would think. But the FISA judge James Boasberg doesn't see why this provision's sunset should have any negative effect on the continued collection of phone metadata.

On the last page of the court's most recent order, Boasberg says the following:

If Congress, conversely, has not enacted legislation amending § 1861 or extending its sunset date established by Section 102(b) of Public Law 109-177, 120 Stat. 195, as most recently amended by Section 2(a) of Public Law 112-14, 125 Stat. 216, the government is directed to provide a legal memorandum pursuant to Rule 11(d) addressing the power of the Court to grant such authority beyond June 1, 2015.

It's Public Law 109-177 that's aiding the effortless reauthorization. Charlie Savage of the New York Times noted this possibility last year. There's an exception in place that allows authorized surveillance programs to continue even after their authorizations have lapsed.

(2) Exception.–With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in paragraph (1) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions cease to have effect, such provisions shall continue in effect.

This could provide for endless bulk surveillance under Section 215, even without renewal of the program. Or it could just be the FISA judge signaling conversations the general public isn't privy to, as Marcy Wheeler points out.

That basically says the Court is aware of this discussion, either because it reads the NYT or because the government has mentioned it. This order doesn’t tip a hand on how FISC would regard this claim, but it does make clear it considers it a distinct possibility.

Note, unless I’m missing something, no language like this appears in any of the unredacted sections of previous dragnet orders, not even when Congress was giving the government straight renewals. We can’t be sure, but that certainly seems to suggest the Court has been having conversations — either by itself or with the government — about alternatives in a way Bob Litt and others are not having publicly.

Even if the court chooses to read the PATRIOT Act as killing Section 215 when it sunsets, this likely won't end the collection of phone metadata. The government still has other options.

Many privacy advocates believe the White House would have two routes available if it chose to continue the program, absent congressional action. Along with potentially being able to continue investigations that are ongoing despite an expiration, the administration could also rely on a "pen/trap" statute, which allows for phone tapping and has a loose standard of relevancy, akin to Section 215, and typically does not require probable cause.

This option would require a bit more paperwork and slightly refined targeting of court-approved numbers. It would, at least temporarily, halt the incoming collection of everything and force the NSA to relinquish control of the database. A PR/TT order wouldn't allow for collection in bulk, but rather return records linked to certain numbers from telcos searching their own databases. So, it would be a step forward in terms of Section 215 reform (moving the database out of the NSA's control), however inadvertently.

Others believe the language in the latest FISA order signifies nothing in particular.

Stewart Baker, a former general counsel at the NSA, said it's possible the surveillance court could use the leeway to grant a "one-off measure" in May to keep the bulk-records program going only through June. He noted that Boasberg's order requests that a memorandum from the government be filed not by June 1 but by May 22, a notable deadline, given that "most observers expect that Congress will only act at the last minute."

"The much harder question is whether it could issue any orders in June," Baker said. "There's an argument that it can, but I suspect that the administration won't be willing to make that argument."

Section 215 might expire, but the door is open for the NSA to continue its collecting uninterrupted. Things may become much more interesting in late May as the clock winds down. Perhaps Congress will have the courage to just let this section of the PATRIOT Act die, but it will have to weather plenty of "terrorists... terrorists everywhere!" posturing from Section 215's defenderss. If nothing else, an expiration would force the reforms the NSA has shown little interest in implementing.

Filed Under: fisa court, nsa, patriot act, section 215, surveillance