Judge Kozinski Calls Out Former FISC Judge John Bates For Claiming To Speak For The Entire Judicial Branch

from the those-bad-ideas-are-all-YOURS,-Judge-Bates dept

A few weeks ago, former FISC judge John Bates (now helming the Administrative Office of the US Courts) sent a letter to the intelligence oversight committees arguing that the Senate's USA Freedom Act would do too much damage to the NSA and the FISA Court. Bates feels the toothless bill passed by the House would be a much better fit for the FISA Court.

In particular, Bates raised several not very convincing arguments against the appointment of an advocate to act on behalf of the surveilled, thus turning this secret court into something more adversarial. Steve Vladeck of Just Security noted a few problems with Bates' arguments back in early August.

First, on the informational point, Judge Bates offers no evidence in support of his claim that allowing a security cleared outside amicus to participate before the FISA Court will somehow affect the government’s duty of candor to the tribunal, or otherwise disrupt the (apparently quite congenial) relationship between the FISC and the relevant government stakeholders. Indeed, Congress has already provided for security cleared private counsel to participate in FISA Court proceedings in the contexts of applications under section 215 of the USA PATRIOT Act and section 702 of FISA (as amended by the FISA Amendments Act of 2008). Does Judge Bates object to those provisions, as well? If not, why would a security cleared special advocate be any different in this regard than a security cleared private lawyer for the recipient of a section 215 production order or section 702 directive?

Not only are Bates' concerns non-specific and undermined by provisions already in place, but his disagreement with these aspects find him standing alone.

Moreover, with respect to Judge Bates's real concern–that having to provide a special advocate with access to at least some of the classified information upon which surveillance applications are based “could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA”–it’s more than a little telling that the Executive Branch nevertheless supports the Senate bill. If this was really a genuine problem (indeed, some may well think that forcing such a choice is exactly the point), wouldn’t we expect to have heard about it from the intelligence community, the Justice Department, and/or the White House?

Bates' objections to these reforms make him somewhat of an outsider, even inside his own wheelhouse. But you wouldn't know it by the phrasing Bates uses in his letters -- letters that he's been sending to various oversight entities since the beginning of the year. After making it clear he was speaking in a more limited capacity in letters sent in January and February ("...as a liaison for the Judiciary on matters concerning the Foreign Intelligence Surveillance Act"), that wording vanished from those sent later in the year. The letters Just Security covered in August saw Bates giving himself increasing prominence.

… the new letter both (1) fails to persuade in its substantive objections; and (2) only further raises the question of why Judge Bates believes he’s entitled to speak “on behalf of the Judiciary”–especially when at least two former FISA judges have expressly endorsed reforms far more aggressive than those envisaged by the Senate bill…

9th Circuit Appeals Court Chief Judge Alex Kozinski is now wondering the same thing, having had Bates' letters forwarded to him by a colleague. He has sent a letter to Patrick Leahy, the chairman of the Judiciary Subcommittee, informing him of Bates' tactics. (The letter also CC's leaders of both the Senate and House Intelligence Committees, as well as Eric Holder and Judge John Bates himself.)

I am writing in regard to a letter sent to you on August 5, 2014, by The Honorable John D. Bates, Director of the Administrative Office of the United States Courts. In that letter, Director Bates comments on legislation now pending in the Senate, namely the USA FREEDOM Act, S. 2685. In so doing, Director Bates purports to speak 'on behalf of the Judiciary,' and frequently uses the first-person-plural pronoun 'we' in stating his views. I understand 'we' to refer to the federal judiciary.

Kozinski then points to Judge Bates' January letter in which he states that these sorts of issues are usually deliberated by the Judicial Conference before presenting the federal judiciary's collective opinion. Kozinski notes that "nothing has changed" between January's more limited letter (when Bates spoke as only a FISA representative) and August (after Bates began claiming he represented the entire federal judiciary).

Kozinski finished up by pointing out that not only does Bates not speak for the whole of the judiciary, but that much of the judiciary is unlikely to back up Bates' positions. He makes it entirely clear that he won't.

The matters raised by S. 2685 and Director Bates's letters are of profound significance and merit the closest consideration. I have not, however, had an opportunity to study them and make an informed decision because, as Director Bates notes, "the [Judicial] Conference has not at this time been engaged to deliberate on them." Were the matter put before the Judicial Conference, I would certainly take the time to study it, form an opinion and cast a vote, after considering the views of my Judicial Conference colleagues. And, whatever the outcome, I'd feel bound by that decision. But, having given the matter little consideration, and having had no opportunity to deliberate with the other members of the Judicial Conference, I have serious doubts about the views expressed by Judge Bates. Insofar as Judge Bates's August 5th letter may be understood as reflecting my views, I advise the Committee that this is not so.

We'll have to see what Bates' post-Kozinski letters bring. He probably won't change his mind on FISA court reforms, but he'll likely stop claiming he speaks for the judicial branch, when he's clearly only pushing his own agenda.

Filed Under: alex kozinski, congress, fisc, house, john bates, judiciary, senate, surveillance, usa freedom act

Newly Released Documents Show NSA Abused Its Discontinued Internet Metadata Program Just Like It Abused Everything Else

from the so,-more-of-the-same,-then? dept

James Clapper's office (ODNI) has released a large batch of declassified documents, most of which deal with the NSA's discontinued Section 402 program. What this program did was re-read pen register/trap and trace (PR/TT) statutes to cover internet metadata, including sender/receiver information contained in email and instant messages. (Not to be confused with the Section 702 program, which is still active and harvests internet communications.)

Notably, this marks only the second time that the ODNI has acknowledged the document release has been compelled by a FOIA lawsuit.

Following a declassification review by the Executive Branch, the Department of Justice released on August 6, 2014, in redacted form, 38 documents relating to the now-discontinued NSA program to collect bulk electronic communications metadata pursuant to Section 402 of the FISA (“PRTT provision”). These documents are also responsive to a Freedom of Information Act request by the Electronic Privacy Information Center.

As EPIC's site notes (and the ODNI's doesn't), the program was authorized in 2004, but no legal justification was provided to Congressional oversight until a half-decade later. Contrast that fact with the ODNI's statement:

The information released on August 6, 2014, together with documents previously released, demonstrates the extent to which the IC sought and received FISC approval to collect electronic communications metadata under the PRTT provision, the oversight regime of internal checks over the program, and that Congress was kept fully apprised of the status of NSA’s electronic metadata collection.

Apparently, in intelligence jargon, "fully" is synonymous with "eventually."

Despite the program being discontinued, the documents are still heavily redacted. For instance, in the original opinion and order that found the bastardized PR/TT compliant with the Fourth Amendment, the government's description of "meta data" runs multiple pages, almost all of it covered in black. The government acknowledges the email metadata, but redacts everything else -- including testimony given on record to legislators. Chris Soghoian of the ACLU easily found some of the redacted text elsewhere on the web.


So, the declassification review apparently decided the public shouldn't know the NSA collected instant messaging with its discontinued program. Too bad it was discussed openly in a Senate hearing.

The government's memorandum in support of this wide-open interpretation of PR/TT also contains an expansive redefining of the word "relevant." As Marcy Wheeler points out, the administration and the DOJ stretch the definition to mean "almost all" and then pretend they've done nothing at all. (Wheeler also has posted two very informative posts with further details from the newly-released documents.) From the memo:

Here, by contrast, reading the term “relevant” to permit the collection of this critical information during wartime is a construction rooted in the text that requires no stretching of the ordinary meaning of the terms of the statute at all. In fact, for all the reasons outlined above, interpreting section 402 to authorize the collection the Government has requested in the best reading of the plain terms of the Act.

To the government, the most insanely expansive reading is the "best" reading. As Wheeler notes, this self-congratulatory paragraph is another example of why secret courts are dangerous.

This is why you should not have secret courts.

I get making an aggressive push to authorize dragnet surveillance.

I get mining old and foreign dictionaries to come up with a definition that suits your needs.

But after you’ve made your best ditch effort to stretch the meaning of words, secretly, beyond all recognition, don’t then, secretly, pat yourself on the back pretending that wasn’t the game you just pulled.

But it's still, to this day, a secret court. And the documents released show it's still a largely deferential court -- one that actively allows the administration and the NSA to do its thinking for it. It's never been an adversarial court and has only very rarely acted like it's part of a system of checks and balances. In Judge Kollar-Kotelly's long defense of mutating PR/TT into an internet metadata dragnet, she puts words in Congress' mouth and removes potential roadblocks with alarming speed. Whatever slack the FISA Court fails to cut the administration, it cuts for itself. From the same memorandum quoted above:

Here, construing FISA to preclude the signals intelligence activities that the Executive Branch has concluded are vital to wartime defense of the Nation would raise a grave constitutional question about whether the statute, as so construed, impermissibly impinges on the President’s constitutionally assigned authorities as Commander in Chief and Chief Executive.

[...]

In almost all cases of potential constitutional conflict, if a statute is construed to restrict the Executive, the Executive has the option of seeking additional clarifying legislation from Congress. In this case, by contrast, the Government cannot pursue that route because seeking legislation would inevitably compromise the secrecy of the collection program the Government wishes to undertake.

That's the Executive Branch cutting the Legislative Branch out of the loop, and doing so with assistance provided by an offshoot of the Judicial Branch. That's the vaunted oversight being kicked to the curb in order to oblige the NSA. The system of checks and balances apparently is unworkable during times of war.

All of this is unsurprising, given what we've learned about the FISA court over the past several months (as well as the government's arguments in support of dragnet surveillance programs). Equally as unsurprising is the fact that the NSA immediately took this new program and abused it, just like it's abused everything else it's been entrusted with by the FISA Court.

A now-defunct National Security Agency (NSA) bulk collection program that collected information about online communications exceeded its authority, collected too much, and shared that information too freely, recently declassified court documents show…

The government, the document indicates, “acknowledges that NSA exceeded the scope of authorized acquisition continuously during the more than [redacted] years of acquisition under [the] orders.”

When not abusing the limits of the program to gather information it shouldn't have had access to, the NSA was sharing its ill-gotten goods with other government agencies, ignoring its own rules about dissemination by distributing unminimized US persons' data. But despite this evidence of wrongdoing, no one was punished and, in fact, the government didn't even feel compelled to explain its actions to the court.

As was noted above, the supposed oversight that's supposed to help prevent this sort of abuse wasn't even apprised of the program until five years after the FISA court gave its approval. The documents forced out of the NSA's hands by a handful of lawsuits clearly shows the agency can't be trusted to police itself and isn't interested in letting anyone else tackle that job.

Filed Under: colleen kollar-kotelly, fisa, fisa court, fisc, internet metadata, nsa, section 402, surveillance

Judge Gives DOJ Until The End Of The Month To Submit Declassified Opinion Containing FISA Court's Justifications For The Section 215 Program

from the surveillance-state-sausage-making dept

It appears the government will finally be releasing the FISA court's thought process justifying the mass harvesting of Americans' metadata from fully-immunized telcos under the Section 215 program (now 501). An earlier court order from FISA judge Dennis Saylor discussing the potential release of this court opinion described it thusly:

The government has identified the Opinion issued in Docket Number BR 13-25 on February 19, 2013, as one that "contain[s] analysis by this Court evaluating the meaning, scope, and/or constitutionality" of Section 215 of the USA PATRIOT Act, codified as amended at 50 U.S.C. § 1861.

Whether it will be instructive and enlightening (rather than stuffed full of Third Party Doctrine bullshit and circular "it's legal because it's legal" reasoning) remains to be seen. But the last two words of that previous sentence are something at least: it will "be seen." And, apparently, with a minimum of redactions.

For the reasons stated herein, the Court is directing the government to prepare and declassify a redacted version of the opinion issued by the Foreign Intelligence Surveillance Court (FISC) in Docket Number BR-25 on February 19, 2013.

The ACLU (and others) have pushed for a release of this particular FISC opinion for more than a year now. The court doesn't even attempt to address the First Amendment implications of withholding the opinion from the public because there are plenty of other angles justifying its release. The court notes that the release would serve the public's interest as recent disclosures (both authorized and unauthorized) have brought the Section 215 program into the court of public opinion (as well as actual federal courtrooms).

While the FISA court may have arrived at this conclusion based on ongoing events, the government arrived somewhere completely different.

After appropriations had been reinstated and a timetable for declassification review had been set, the government advised that, “[a]fter careful review of the [February 19, 2013] 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.”

The FISA court asked for the combined brain power of the DOJ, Executive Branch and an unspecified number of "senior intelligence officials" to explain their thought process and got a lot of unintelligible mumbles and floor-staring in return.

Noting that “the government has provided no explanation of this conclusion,” the Court ordered the government to submit “a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form.”

Duly chastened, the brain trust resorted to one of its favorites: making this info public would jeopardize ongoing investigations. But it conceded that the opinion could still be declassified if a sufficient amount of black ink is spilled. The FISC pressed harder, asking for narrower redactions that removed only the targets in question, rather than the accompanying language that would clarify the court's stance on the bulk collection issue. Surprisingly, despite its lack of practice with operating anything narrowly-defined or targeted, the government managed to come up with a redacted version that satisfied the unexpectedly demanding FISA court.

[T]he Court notes that releasing the February 19, 2013 Opinion pursuant to the Second Redaction Proposal achieves the basic objective sought by the movants: disclosure of the Court’s legal reasoning, to the extent that it can reasonably be segregated from properly classified facts. There is an inherent risk that the end product of such an exercise “may confuse or obscure, rather than illuminate, the decision[ ] in question.” In re Motion for Release of Court Records, 526 F. Supp.2d at 495. On balance, however, the Court is satisfied that publication of the February 19, 2013 Opinion in conformance with the Second Redaction Proposal would enhance, rather than detract from, public understanding of the Court’s reasoning as to the legal issues presented.

Well, I guess we'll see what it looks like when we get it. August 29th is deadline for the submission of a formally declassified version of the (supposedly) narrowly-redacted opinion. The FISA court then needs to give it a quick once-over before publishing it "immediately" to its website. I don't expect to see it any sooner than the end of this month, but we'll be taking a good look at it when it finally arrives.

Filed Under: bulk data collection, bulk phone records, doj, fisa court, fisc, foia, justification, legal justification, nsa, section 215

Former Top FISA Judge Insists USA Freedom Act Is Dangerous Because It Might Mean FISA Court Can't Rubberstamp So Fast

from the say-what-now? dept

Judge John Bates, a district court judge who also served on the FISA Court seems to have decided that his job as a judge is to defend the surveillance state, and with it the judiciary's role in protecting the surveillance state. Earlier this year, we wrote about Judge Bates sending a letter to Senator Dianne Feinstein, urging that no major changes be made to how the FISA court did its business. Among a number of questionable arguments, Bates also (falsely) claimed that his letter (which only he signed) represented the views of "the Judiciary." While the Judicial Conference normally is in charge of expressing any views on policies that impact the judiciary, Bates apparently decided (by himself) that since he was secretary of the Judicial Conference and had served on the FISA Court that he could just officially state the position by himself.

That this rather hubristic claim was shot down by multiple experts apparently has not dampened Judge Bates' insistence that he, and he alone, expresses the views of "the judiciary" when it comes to the intelligence community. As reported in the Wall Street Journal, Judge Bates has sent a new letter, this time to Senator Patrick Leahy, expressing his concerns about Leahy's new USA Freedom Act, a bill that is a big step forward (though could still use more help). That bill was the result of months of negotiating between the Senate, the intelligence community and the White House. It's a "compromise" bill in almost every way.

But Judge Bates doesn't like it. At least in the past, his argument was actually concerning the judiciary, and how some of the proposed reforms might potentially overburden it (even if those arguments weren't particularly well supported). With this new letter, he more or less shows his hand as a surveillance state apologist, in that many of the arguments have little to nothing to do with how the new USA Freedom Act would impact the judiciary (which, again, Bates claims he alone represents), but rather how it would impact the intelligence community and the executive branch. Here, for example, he's concerned that if there were a civil liberties advocate allowed to be an adversary on the court, it would mean that the government would be afraid to reveal certain things:

In fact, the participation of the special advocate could actually hinder the ability to obtain complete and accurate information. Introducing an adversarial special advocate in FISA proceedings creates the risk that representatives of the Executive Branch who, as noted, have a heightened duty of candor in ex parte FISA court proceedings would be reluctant to disclose to the courts particularly sensitive factual information, or information detrimental to a case, because doing so would also disclose the information to an independent adversary. This reluctance could diminish the court's ability to obtain all relevant information, thus degrading the quality of its decisions. Alternatively, it could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA.

That last sentence is quite telling. As a judge, how is it of Bates' concern whether or not the intelligence community decides to pursue intelligence-gathering efforts? He seems to assume that limiting the ability of the intelligence community to spy on people is, inherently, a problem.

Furthermore, just the idea that the court is more likely to get all the information in a non-adversarial environment seems totally without support. It doesn't make any logical sense either. Under the existing "ex parte" system, the government has every incentive in the world to distort the facts and provide "just enough" information to get the rubber stamp to come down. Having an adversarial process designed to protect civil liberties can further delve to make sure that all the relevant information is on the table. Why is Judge Bates so afraid of that?

In fact, as Harley Geiger points out, if anyone should know better, it's Judge Bates. After all, just a few years ago, he was the one who issued a stinging FISC decision accusing the government of regularly misrepresenting things. And yet, now he's claiming that the government is always nice and open with FISC and wouldn't benefit from having a third party asking questions?

Furthermore, as Steve Vladeck notes in a detailed response to Bates, it's bizarre that Bates seems to be saying that he's concerned about the executive branch's ability to do surveillance, when the executive branch helped negotiate the compromise that created this bill. Why is Bates so concerned, other than that he's in favor of greater surveillance?

with respect to Judge Bates’s real concern–that having to provide a special advocate with access to at least some of the classified information upon which surveillance applications are based “could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA”–it’s more than a little telling that the Executive Branch nevertheless supports the Senate bill. If this was really a genuine problem (indeed, some may well think that forcing such a choice is exactly the point), wouldn’t we expect to have heard about it from the intelligence community, the Justice Department, and/or the White House? That is to say, isn’t Judge Bates’s real objection here on behalf of the (apparently content) Executive Branch, and not the judiciary? Even the former FBI General Counsel has openly supported these kinds of reforms…

The same response can be offered to Judge Bates’s concern about the timing of surveillance applications, and the extent to which resolving whether a special advocate should be appointed will slow down cases that demand expedition. One would once again think that, if the intelligence community, Justice Department, or White House was actually worried about this problem, they would not have agreed to the language in the current version of the Senate bill. And a big part of why they probably did agree to this language is because Judge Bates’s timing concerns are a red herring. As he himself concedes, “the bill would give courts discretion, consistent with the timing requirements imposed by Congress on FISA court action or as otherwise appropriate, to decline to designate a special advocate even when one would, as a default matter, be required.” His concern instead appears to be that even deciding whether a specific case is one in which it would take too long to make that determination will itself take too much time. Somehow, I suspect that jurists like Judge Bates will not be especially inclined to go out of their way to hamstring themselves (or the Executive Branch) in such cases, but will rather take full advantage of the discretion the Senate bill affords them.

Meanwhile, Vladeck rightfully challenges why Bates believes that he, alone, can speak for the entire judiciary on this matter, given that many other judges -- including other FISA court judges -- have supported these kinds of reforms.

Second, and more fundamentally, we return to the question I raised back in May–by what right does Judge Bates even purport to speak “on behalf of the Judiciary”? Yes, he is the Director of the Administrative Office of the U.S. Courts (AO)–and, in that capacity, serves as Secretary to the Judicial Conference of the United States. But under federal law, it is the latter body–the Judicial Conference–and not the AO that is the official policy voice of the federal judiciary, and for good reason. Federal law not only outlines who serves on the Judicial Conference, but it also provides procedural and substantive rules to guide that body in how it conducts business, with an eye toward ensuring that it only speaks on pending policy issues of appropriate concern to federal judges.

[....]

Part of why it is so important for Judge Bates to clarify the authority with which he is purporting to speak is because we know better. As I wrote back in May, at least two of Judge Bates’s former colleagues on the FISA Court have publicly endorsed far more aggressive reforms to the FISA Court (including through a special advocate) than those provided by the Senate bill: Judge James Carr in a July 2013 op-ed in the New York Times, and Judge James Robertson in a series of speeches delivered last summer. It should follow that at least Judges Carr and Robertson–and, based on my own private conversations, far more of their colleagues–don’t share Judge Bates’s concerns about the Senate bill. They’re not alone.

It's become clear that Judge Bates' concerns are not those of "the judiciary" or even personal concerns about it might impact his role as a judge. Instead, it's pretty clear that he believes in the surveillance state, and is worried that something like the USA Freedom Act might push back on the surveillance state. That's a position that he's entitled to have, of course, but he shouldn't be claiming to represent the entire judiciary while pushing such an agenda.

Filed Under: civil liberties, fisa court, fisc, john bates, patrick leahy, usa freedom act

FISA Court Judges Keep Buying Verizon Stock; Wonder What They Know...

from the foia-ftw dept

Lee Fang, over at Vice, has quite a revelation based on some FOIA requests. It seems that the various judges on the FISA Court who keep approving the NSA's requests for bulk data from the telcos... also seem to keep buying Verizon stock.

On May 28 last year, Judge James Zagel, a FISA Court member since 2008, purchased stock in Verizon. In June of this year, Zagel signed off on a government request to the FISA Court to renew the ongoing metadata collection program.

He's not the only one. We filed a request to the courts for the personal finance statements for all of the FISA Court judges. About a month ago, federal judges began turning in their disclosures, which cover the calendar year of 2013. The disclosures show that FISA Court Judge Susan Wright purchased Verizon stock valued at $15,000 or less on October 22. FISA Court Judge Dennis Saylor has owned Verizon stock, and last year collected a dividend of less than $1,000. The precise amount and value of each investment is unclear—like many government ethics disclosures, including those for federal lawmakers, investments amounts are revealed within certain ranges of value.

While this may not be a true sign of corruption, it at least raises some basic ethics questions. As Fang notes, ethics rules say that judges need to recuse themselves from cases where they have a financial stake in the outcome. But, it's not as clear cut, since the telcos aren't actually parties to the cases brought by the DOJ to the FISA Court (there are no other parties, generally, it's just the government). And even if there isn't anything fishy here, just the appearance of a potential bias seems problematic.

"I think prudence would suggest that a FISA judge would not acquire investments in these telecommunication stocks," says Professor William G. Ross, an expert on judicial ethics at Samford University's Cumberland School of Law in Alabama. "I'm not saying there is a conflict of interest, which my impression says there's probably not," Ross says, adding, "this is between what's improper and what's prudent."

And, indeed, there definitely appears to be a conflict of interest here. As you may recall, it's been reported that the telcos were given over $100 million for "volunteering" to hand over customer records. While that may be peanuts overall to a major telco's bottom line, it's not nothing.

Filed Under: conflict of interest, ethics, fisa court, fisc, foia, section 215, surveillance
Companies: verizon

New Snowden Docs Show How FISA Court Gave NSA Ridiculously Broad Spying Powers

from the because-terorrism dept

The latest reporting on previously unrevealed Snowden documents comes from the Washington Post, by Ellen Nakashima and Barton Gellman, reviewing how the FISA Court granted the NSA incredibly broad powers to spy on just about any country, and also allows them to collect a pretty broad array of information with little oversight. Basically, the FISC gave blanket approval to the NSA to spy on any country not a member of the "Five Eyes" coalition, with whom the US has non-spying agreements: the UK, Canada, Australia and New Zealand. Perhaps more troubling isn't just the big list of just about every country, but how the FISC allows spying on a broad range of communications:

An affidavit in support of the 2010 foreign government certification stated that the NSA believes foreigners who will be targeted for collection “possess, are expected to receive and/or are likely to communicate foreign intelligence information concerning these foreign powers.”

That language could allow for surveillance of academics, journalists and human-rights researchers. A Swiss academic who has information on the German government’s position in the run-up to an international trade negotiation, for instance, could be targeted if the government has determined there is a foreign intelligence need for that information. If a U.S. college professor e-mails the Swiss professor’s e-mail address or phone number to a colleague, the American’s e-mail could be collected as well, under the program’s court-approved rules.

As we've noted (and as this report reminds us), one of the more recent revelations is that this set of broad powers, which come under Section 702 of the FISA Amendments Act, includes the ability to collect information any time anyone communicates about a target, not just to or from a target. And "a target" can be more than just a person -- it can be an organization or a computer or a network. That means the FISA Court more or less gave the NSA broad powers to spy on just about anyone if they did anything even remotely related to a broad set of "targets." It's hard to see how this is narrowly tailored surveillance, as NSA defenders keep wishing to imply.

Filed Under: ed snowden, fisa court, fisc, section 702

New FISC Memorandum Says Bulk Metadata Program Still Good To Go Until Congress Or Supreme Court Says Otherwise

from the we-still-have-the-greatest-enthusiasm-and-confidence-in-the-mission dept

As was noted in the writeup of the ODNI's First Ever Transparency Report, this tentative and forced step into transparency was a step forward for No Such Agency, even if each document release has been accompanied by the unmistakable sound of gritting teeth and a nearly universal refusal to acknowledge that most of the "openness" had been compelled by court orders following FOIA lawsuits.

Also noted was the fact that the new transparency was short a few documents, namely the March renewal order for the bulk phone metadata collection. Lo and behold and under the cover of late Friday afternoon (to better be smuggled in as the nation punched its collective timeclock), the Office of the Director of National Intelligence released two orders: the March and June renewals of the bulk records collections.

There's nothing very notable about either of the two renewal orders, both of which say roughly the same thing and wear their fashionable black redaction marks on exactly the same words. What is notable is the memorandum opinion released with them, which details the events that have occurred in recent months that have affected both the collection and the minimization procedures the NSA follows.

In the past few months, two metadata-related lawsuits have resulted in court orders demanding preservation of evidence, some of which was due to age off as part of the normal minimization procedures. The court orders wreaked a bit of havoc in FISC judge Reggie Walton's court, forcing him to first order data to be destroyed (noting again that the minimization procedures were one of the few things that even allowed this bulk collection of American data to be legal) and finally, once the DOJ had stopped misleading him (and the cases' plaintiffs themselves), to halt the destruction of relevant (to the cases, not to counterterrorism) metadata.

Throughout it all, the DOJ performed a remarkable plate-spinning act, keeping all decisions aloft while it contemplated best-case scenarios. Unlike true plate-spinning acts, the DOJ really didn't care whether the plates continued spinning or crashed to the ground, as it's unlikely to ever allow this evidence to be used in court. (Indeed, it spent much of its plate-spinning time destroying data it was ordered to preserve.) Though the three involved courts had plenty to do to ensure the rights of non-NSA Americans weren't violated, the DOJ's main purpose was to shuttle paperwork back and forth until it could be safely revealed that the multi-billion dollar superspyplex was incapable of doing the very thing under discussion: preserving data past the expiration date. (This should have come as no surprise, considering the NSA had announced previously that it was incapable of searching its own email system. [And yet, it claims to have found only one email related to Snowden whistleblowing attempts.])

Also, during the past few months, two contradicting court opinions on the legality of the bulk record collections were released. The one that found it unconstitutional (DC district court judge Richard Leon) was stayed awaiting appeal, changing nothing in the NSA's plans to collect it all, but prompting some reflection from the FISA court. The other confirmed the status quo.

All the while, millions of gallons of prime (and confidential) desert water (acquired at budget rates) continued to flow into the NSA's new Utah spybox even as, ironically, fires broke out within the building itself. The security state is still alive and well… even if it seems to be pausing more frequently to catch its breath and favoring a limb or two.

But back to the order. During the disarray of the last few months, two bulk records orders were renewed. While the memorandum changes nothing, it does at least acknowledge the fact that the collection is under considerable public scrutiny, not to mention awaiting implementation of the administration's reforms. But it does point out that there are really only two entities that can bring a complete halt to this collection -- and so far, neither have made that move.

The unauthorized disclosure of the bulk telephony metadata collection more than a year ago led to many written and oral expressions of opinions about the legality of collecting telephony metadata. Congress is well aware that this Court has interpreted the provisions of 50 U.S.C. 1861 to permit this particular collection, and diverse views about the collection have been expressed by individual members of Congress. In recent months, Congress has contemplated a number of changes to the Foreign Intelligence Surveillance Act, a few of which would specifically prohibit this collection. Congress could enact statutory changes that would prohibit this collection going forward, but under the existing statutory framework, I find that the requested authority for the collection of bulk telephony metadata should be granted. Courts must follow the law as it stands until the Congress or the Supreme Court changes it.

The House stripped the USA Freedom Act of nearly all of its teeth before passage, which makes it a long shot for Congress to explicitly outlaw this collection any time soon. Various other reform measures, including an amendment that slammed one domestic surveillance backdoor shut, have fared better.

The issue may eventually end up in the Supreme Court (which has shot down two attempts already), but despite a recent victory for the Fourth Amendment, the court system's deference to "national security" arguments has generally resulted in wins for the government. Even if it does land in front of the justices, there's little to indicate that whatever case forces consideration of the issue will be the best scenario to "test" the issue, much less provide a solid platform for Fourth Amendment arguments. And even if the Supreme Court does agree bulk records collection violates citizens' rights, the government will swiftly act to ensure the decision has only a minimal effect on its collection efforts.

Finally, there's a small paragraph that indicates that the release of these two documents was, again, not the result of the ODNI's half-hearted embrace of openness.

In light of the public interest in this particular collection and the government's declassification of related materials, including substantial portions of Judge Eagan's August 29 Opinion, Judge McLaughlin's October 11 Memorandum, and Judge Collyer's March 20 Opinion and Order, I request pursuant to FISC Rule 62 that this Memorandum Opinion and Accompanying Primary Order also be published, and I direct such request to the Presiding Judge as required by the Rule.

The rule cited allows FISC judges to order the release of orders, opinions and decisions and is by no means a recent development. The rules date back to 2006, but it's only in the last year that we've seen anyone exercise this option. Does anyone out there think this would have occurred without "unauthorized disclosure?" Those looking to lock up Snowden for his leaks would do well to remember small details like this. Going through "proper channels" wouldn't have forced this level of transparency or prompted the secretive FISA court to start ordering declassifications on its own. It took a whole lot of pushing and the stripping away of layer after layer of secrecy and plausible deniability to achieve this.

Filed Under: bulk records, congress, fisa court, fisc, odni, phone records, section 215, supreme court

Judge Orders DOJ To Hand Over FISA Court's Justification For Bulk Data Collection On Americans In FOIA Lawsuit

from the this-could-get-interesting dept

Late Friday, a judge in California ordered the DOJ to hand over key rulings from the FISA Court concerning the legality of the bulk records collection under Section 215 of the PATRIOT Act. As you probably know by now, Section 215 is the "business records" provision, that the government claims allows the NSA to collect phone and other records on all communications in the US (despite the fact that the law itself is limited to the FBI and is only supposed to be about records related to terrorism). The FISA Court, however, has broadly (mis)interpreted the law, but done so in secret, such that the NSA now believes it can get basically any phone record (and lots of other kinds of records as well). The EFF filed a lawsuit after its attempt to get access to the relevant FISA Court interpretations (five of 'em) was denied, and the judge is now ordering the DOJ to let them see the rulings in question, after a heavily redacted deposition wasn't satisfying enough. The ruling is worth reading. The judge basically says that the DOJ has very little credibility on these things, having withheld info it should have released in the past.

Here, the Court finds that an in camera inspection of the subject documents is warranted. The evidence in the record shows that some documents, previously withheld in the course of this litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably segregable portions of those documents would have been required. Further, the withholding followed an Order from this Court expressing concern that the agency had failed to explain sufficiently why the withheld documents “would be so replete with descriptions of intelligence activities, sources and methods that no portions thereof would contain” reasonably segregable and producible, non-exempt information....

Further, the Court finds that the public’s interest in the documents withheld is significant. The scope and legality of the government’s current surveillance practices of broad swaths of its citizenry is a topic of intense public interest and concern.... In light of this public interest, in camera review to assure that the agency is complying with its obligations to disclose non-exempt material is certainly merited. Finally, as the parties have narrowed the range of documents for review, the burden on judicial resources is not significant.

Of course, there's no guarantee that the judge will release the actual rulings, but this is clearly a step in the right direction.

Filed Under: bulk records, doj, domestic surveillance, fisa court, fisc, foia, nsa, patriot act, section 215
Companies: eff

Looks Like Sprint Did Challenge FISC Order For Call Data, Asked If It Was Serious

from the um...are-you-for-real? dept

Last September, we noted that the FISA Court had finally released a heavily redacted version of its attempt to justify the NSA's use of Section 215 of the PATRIOT Act to sweep up phone records on every phone call. It's noteworthy that this was the first time that the FISC had ever bothered to actually detail why it believed the program was legal, despite approving such bulk collection orders for years. In that ruling last fall (which had been written last July), one of the things that FISC Judge Claire Eagan stated was:

To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so.

We found that to be fairly disappointing that no company had stepped up to challenge these orders. In fact, we noted just last month that an unnamed phone company was the first to challenge the records -- but it turns out that's not true. In fact, it turns out that what Eagan claimed in her ruling isn't true either.

In some newly declassified documents from the Director of National Intelligence, it's revealed that Sprint challenged the order, and basically forced the government to reveal the actual legal basis for the request. Sprint isn't named in the declassified legal filing, but people have confirmed that that's who it was.

The actual filing is a "Motion for Amended Secondary Order" from the DOJ, in which it's pretty clear that Sprint basically asked the government "are you fucking serious? you want us to hand over everything?" The motion from the DOJ is basically asking the FISA Court to repeat its original order with a legalese version of "yes, we're serious." As Julian Sanchez points out, it seems pretty clear that Sprint basically went back to the government and said could you repeat that, so that we actually know this is for real?

The Washington Post further claims that Sprint had a legal challenge drafted and ready to go, but was eventually persuaded by the DOJ and/or FISC not to go that far. Still, the idea that no one had questioned the legality of these orders doesn't appear to be accurate. Yes, we could have hoped that Sprint would have gone to greater lengths, but as we were just discussing this morning, the government puts immense pressure (often in the form of lies) on anyone who dares to challenge its ability to spy on everyone.

Filed Under: bulk collection, business records, fisa, fisc, nsa, phone records, section 215, surveillance
Companies: sprint

FISC Rubber Stamp Still Getting A Workout: Not A Single Application Rejected in 2013

from the good-to-spy dept

This shouldn't be a huge surprise, but it appears that the old trusty rubber stamp at the FISA Court is still working quite well. In 2013, despite widespread criticism over its previous "perfect record," the FISA Court continued its streak and approved every single one of the 1,655 applications to get information on people. That means there hasn't been a rejection in four years. That said, as FISC defenders have pointed out, the court does push back on some requests, and require them to be amended. One potentially good note is that out of 178 requests made for business records under Section 215 of the PATRIOT Act (the program used to collect bulk information), 141 were sent back by FISC for modifications. It seems likely that at least some of those modifications are part of the Snowden effect.

Filed Under: approvals, doj, fisa court, fisc, nsa, rubber stamp, surveillance