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

Competing NSA Reform Bills Suddenly Lurch Forward In Congress

from the well-this-might-get-interesting dept

In a bit of a surprise move, the House Judiciary Committee, led by Rep. Bob Goodlatte, caught people off guard this morning by announcing that there would be a markup of the USA FREEDOM Act on Wednesday, complete with a Manager's Amendment from bill author Rep. Jim Sensenbrenner. If you don't recall, the USA FREEDOM Act was the best bet for real NSA reforms. It was far from perfect, but did actually do a lot of good things without adding a bunch of bad things. The amended version scales that back a bit. It's not as good, but it's still pretty good. Harley Geiger, over at CDT has a good overview of the Manager's Amendment, and how it actually improves the bill in certain areas, while Marcy Wheeler highlights both the good and bad of the amendment.

Of course, within just a few minutes of the Judiciary Committee announcing its plans to move forward with the USA FREEDOM Act, the House Intelligence Committee announced that it would hold its own damn markup on the competing "NSA reform" bill from Reps. Mike Rogers and Dutch Ruppersberger, which is designed to look like a shot at NSA reform, but which really would make it easier for the NSA to collect info on people. That bill, called the FISA Transparency and Modernization Act (almost none of that is true), is basically the NSA's prime choice for pretending to be reform.

This sets up a bit of an upcoming fight -- assuming that both markups lead to bills getting voted out of committee -- to see which bill House Speaker John Boehner is willing to bring to the floor. Basically, Boehner gets to make the final decision on NSA reform at this stage. Will he bring the real reform bill or the fake one?

Filed Under: bob goodlatte, congress, dutch ruppersberger, fisa, house intelligence committee, house judiciary committee, jim sensenbrenner, mike rogers, nsa, reform, surveillance, transparency, usa freedom act

DOJ Updates FISA Court On Its Bulk Record Data Retention, Glosses Over Earlier Misconduct

from the see-how-GREAT-we-are-at-STUFF! dept

The DOJ, via its Deputy Assistant Attorney General, has sent a memo to FISC Judge Reggie Walton, informing him of just how compliant the agency has been during the last couple of months as conflicting orders over the retention of bulk record data went flying as a result of multiple BR-related lawsuits.

The DOJ, speaking for the NSA and FBI (who actually collect the collections), went from one court to the other (the Northern District Court of California and the FISA Court), trying to figure out whether it would be destroying aged-off data or holding onto it. It was hard to discern which route the DOJ preferred to take, but FISA Judge Walton managed to sniff out the agency's true intentions, calling them out for not only failing to inform the FISA court of standing retention orders but also attempting to talk the involved plaintiffs from passing this information along to the involved courts.

Given these actions, it would appear the DOJ preferred to dump the data rather than have it actually appear in court as evidence. But Judge Walton, along with the district court, prevented that. The DOJ's letter to Judge Walton conveniently glosses over its misconduct, instead portraying the agency as a conscientious party doing the best it could under the circumstances.

The DOJ's letter notes that it managed to restrain itself from destroying any aged-off data while waiting for the conflicting orders to be settled (March 5 - March 12), which means the BR data still has a chance to be used in court. According to the letter, this retained data is being held separately from the rest of the bulk collections, which means it can't be accessed by analysts searching the metadata. Supposedly, the NSA will only be allowed to peek in on the retained data to verify it's all still present and accounted for.

While this sort of hi-gloss portrayal is to be expected from an agency that probably still believes it did nothing wrong, it's rather audacious of the DOJ to attempt to pass this narrative off to the same judge that called it out for misleading the FISA court and attempting to bury plaintiffs' concerns.

Filed Under: destruction, doj, fisa, fisc, metadata, reggie walton

DOJ Flips Out That Evidence Gathered Via FISA Orders Might Be Made Available To Defendants

from the of-course-they-do dept

Last summer, we wrote about the case of Adel Daoud, an American teenager who was caught in one of the FBI's home grown plots. Even before the whole Snowden situation broke, late in 2012 when the Senate was "debating" (and I use that term loosely) the renewal of the FISA Amendments Act (which created Section 702, the key piece of the PRISM program), Senator Dianne Feinstein strongly fought for the renewal... using Daoud's case as an example of where Section 702 was a key component in stopping terrorism -- saying that it was necessary in "a plot to bomb a downtown Chicago bar." That describes the Daoud case, if by "plot" you mean Daoud and a bunch of undercover FBI agents creating a plan that was never actually going to happen.

Feinstein's admission that the FISA Amendments Act was used in the Daoud case took his lawyers by surprise, since none of the evidence they'd been shown involved that. His lawyers then asked for access to the evidence that was obtained via the FAA. After the Snowden revelations (including how information obtained via FISA is often "laundered" to various law enforcement agencies to keep it out of court), his lawyers got even more aggressive. While their initial shot failed, in January, Judge Sharon Coleman decided that, assuming (as claimed) Daoud's lawyer had security clearance, he should be able to see the FISA related materials. As she noted:

While this Court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the Court finds that the disclosure may be necessary. This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment.... Indeed, though this Court is capable of making such a determination, the adversarial process is integral to safeguarding the rights of all citizens, including those charged with a crime. “The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.”

It won't take a psychic to guess what happened next. A few days ago, the DOJ appealed this order explaining a theoretical parade of horrors that might happen if a lawyer with security clearance were given access to the evidence against his client.

But a court’s preference for the adversarial process—a circumstance that exists in all litigation—cannot serve as a basis for declaring that disclosure of FISA materials is “necessary to make an accurate determination of the legality of the surveillance” under the statute. Congress envisioned that FISA litigation be handled ex parte, in camera, with disclosure the rare exception.... Yet the district court’s reasoning would turn that regime on its head. A court could always say that an adversarial proceeding would be the “best” way to determine the legality of the FISA collection. To compel disclosure on that basis would trivialize FISA’s necessity standard and work a sea change in FISA litigation.

Right. How dare anyone think that it might be reasonable or sensible for courts to make sure that lawyers representing clients who were involved in plots created by the FBI actually get to see the secret evidence that the FBI got via a FISA court order? Why, due process might break out! And we're the US government. Can't have that!

Furthermore, the DOJ is positive that the courts simply don't understand the security issues, and the judge shouldn't worry about such things, because the smart people in the executive branch can decide for themselves which classified surveillance efforts are appropriate to reveal:

The district court also misjudged the damage to national security that could result from disclosing the FISA applications and orders, even to cleared defense counsel under a protective order, as substantiated by declarations from the Attorney General of the United States and the Acting Assistant Director of the FBI for Counterterrorism. A “need-to-know” must exist before classified information may be disclosed, even to those who possess a security clearance, and that essential prerequisite is present only where disclosure to defense counsel is “necessary” for a court to adjudicate the legality of the FISA collection.

When viewed under the correct “necessity” standard, nothing about the challenged FISA collection justifies the district court’s outlier decision. As the classified record makes clear, the ex parte process that the statute provides readily permits an accurate determination that the FISA collection was lawful, and the defendant’s allegations to the contrary are unfounded. A court reviewing the applications would have no difficulty determining that they established probable cause to believe the target was an agent of a foreign power and that a significant purpose of the collection was to obtain foreign intelligence information.

This all seems... completely bogus. But what makes it especially bogus is that after it came out that the Solicitor General, Donald Verrilli made false statements to the Supreme Court about whether or not defendants in such cases would be told about evidence collected via the FISA process, the DOJ promised that it would start letting defendants know when the FISA process was used in the investigation. Yet, what the DOJ's response here shows, is that even when that's the case, the DOJ will do everything possible to keep the details of what was done via FISA (and whether or not it was legal or appropriate) out of the case.

Filed Under: adel daoud, doj, evidence, fbi, fisa, home grown plots, nsa, own plot, surveillance

Obama Still Asking FISA Court To Renew Bulk Phone Collection

from the because dept

After President Obama announced his willingness to really end the bulk collection of phone records under Section 215 of the Patriot Act, Senator Patrick Leahy pointed out that the easiest way to do that was to simply not ask the FISA Court to renew that authority this Friday when it expired. The NY Times editorial board picked up that ball and ran with it, publishing an editorial saying that if the President wants us to believe he's serious about ending bulk phone surveillance he should end the program on Friday.

No such luck.

While plenty of people are still waiting for the actual "legislative package" the administration claims it's putting together to accomplish its plan to end bulk phone record collection (but not other bulk collections), the White House has now released a "fact sheet" about its plans that concludes at the bottom by saying that the President has still asked the DOJ to renew the authority:

Legislation will be needed to implement the President’s proposal. The Administration has been in consultation with congressional leadership and members of the Intelligence and Judiciary Committees on this important issue throughout the last year, and we look forward to continuing to work with Congress to pass a bill that achieves the goals the President has put forward. Given that this legislation will not be in place by March 28 and given the importance of maintaining the capabilities in question, the President has directed DOJ to seek from the FISC a 90-day reauthorization of the existing program, which includes the substantial modifications in effect since February.

There are still numerous questions raised by the President's proposal, and it really seems entirely focused on just one problematic aspect of the NSA's surveillance capabilities. Yes, it's the part that has received the most attention, and yes it's the part that also has been shown to have never actually been useful. But this proposal seems a lot more focused on pre-empting much more comprehensive legislation like the USA Freedom Act. Furthermore, the fact that the President still refuses to just kill off the program while waiting for Congress to act suggests this is all for show. Tossing this on Congress is a great way for the President to pretend to do something while knowing nothing will actually happen.

Filed Under: barack obama, bulk phone records, fisa, fisc, metadata, nsa, section 215, surveillance

New Snowden Docs Reveal How The FISA Court Reinterpreted The Law -- And Its Own Role -- In Total Secrecy

from the and-against-the-public-interest dept

We've been writing about the secretive FISA Court (FISC) for quite some time, though a lot more often in the wake of the Ed Snowden revelations, seeing as it repeatedly approved these programs to spy on everyone. As has been noted in the past, the FISC was never supposed to be interpreting (or re-interpreting) the law. It was really just supposed to be about having judges (in secret) approving or disapproving requests from law enforcement to get warrants to spy on people. This is a perfectly reasonable role for a secret court. But things went seriously awry when it started trying to interpret the law, and to approve sweeping programs that effectively allowed the intelligence community to spy on everyone.

The NY Times has an in-depth look at how FISC reinterpreted both the law and its own role in near total secrecy, in the wake of September 11th. Reporters Charlie Savage and Laura Poitras (one of Snowden's first press contacts) use some previously unrevealed documents, including key FISC rulings, to explain what happened. The article focuses on the so-called "Raw Take" order -- docket 02-431 -- which removed restrictions that had been placed on the intelligence community regarding sharing information about Americans. The ruling came on July 22nd, 2002, while the country was still reeling from the September 11, 2001 attacks.

The Raw Take order appears to have been the first substantial demonstration of the court’s willingness after Sept. 11 to reinterpret the law to expand government powers. N.S.A. officials included it as one of three court rulings on an internal timeline of key developments in surveillance law from 1972 to 2010, deeming it a historic event alongside once-secret 2004 and 2006 rulings on bulk email and call data.

While the 9/11 Commission certainly did later find that a big problem in not uncovering the plot before it took place was the failure of the agencies in the intelligence community to share information with each other, this ruling seems to be a key point in having FISC go beyond merely giving the thumbs up or thumbs down to warrant requests and start interpreting the law, and doing so in a way that secretly (and massively) expanded the power of the intelligence community. From there, it was apparently off to the races, and other expansionist rulings followed:

The newly disclosed documents also refer to a decision by the court called Large Content FISA, a term that has not been publicly revealed before. Several current and former officials, speaking on the condition of anonymity, said Large Content FISA referred to sweeping but short-lived orders issued on Jan. 10, 2007, that authorized the Bush administration to continue its warrantless wiretapping program.

The fact that the FISC is clearly reinterpreting law -- such that a secret law is developed which clearly contradicts the public's (and many politicians') understanding of the law -- is on display:

But the orders are also mentioned in a classified draft of an N.S.A. inspector general report that Mr. Snowden disclosed, which calls them “Foreign Content” and “Domestic Content” orders. The report cites a legal theory that reinterpreted a key word in the original FISA — the “facility” against which the court may authorize spying because a terrorism suspect is using it.

Facilities had meant phone numbers or email addresses, but a judge accepted an argument that they could instead be the gateways connecting the American communications network to the world, because Qaeda militants were probably among the countless people using those switches. Privacy protections would be applied afterward, the report said.

The article also notes that the "Raw Take" report made it easier for the intelligence community to share information on Americans (information it's not really supposed to have, for the most part) with foreign nations:

The Raw Take order, back in 2002, also relaxed limits on sharing private information about Americans with foreign governments. The bar was higher for sharing with outsiders: Raw information was not provided, and even information deemed relevant about a terrorism issue required special approval.

Under procedures described in a 1984 report, only the attorney general could authorize such dissemination. But on Aug. 20, 2002, Attorney General John Ashcroft, citing the recent order, secretly issued new procedures allowing the N.S.A. to provide information to foreign governments without his clearance.

Also, the new documents reveal that despite Keith Alexander and others insisting that only a limited number of specially trained analysts could access the massive data collections, within the NSA it was widely known that the controls were not that strong and violations were likely to occur:

Access within the N.S.A. to raw FISA information was initially limited to its headquarters at Fort Meade, Md. But in 2006, the N.S.A. expanded sharing to specialists at its code-breaking centers in Hawaii, Texas and Georgia. Only those trained would obtain access, but a review demonstrated that wider sharing had already increased risks. A document noted that the agency was mixing two types of FISA information, each subject to different court-imposed rules, along with other records, and “it is possible that there are already FISA violations resulting from the way data has been stored in these databases.”

The sharing of raw information continued to expand after the enactment of the FISA Amendments Act. On Sept. 4, 2008, the court issued a lengthy opinion, which remains secret but was cited in another opinion that has been declassified, approving minimization rules for the new law. A video explaining the new rules to N.S.A. employees noted that “C.I.A. and F.B.I. can have access to unminimized data in many circumstances.”

While the revelations from the past few months had already exposed the basic concept of what was happening (the FISC going way beyond what most people thought it was there for, using pretzel logic to interpret laws into saying things that they clearly didn't say), this new report provides an insightful timeline and a peek into some of the key decisions, and how the NSA used those rulings to massively expand its ability to spy on Americans with near total secrecy.

If Congress is serious about fixing the NSA mess (and by no means do I think it is), one place to start would be to bring the FISC back down to its original mandate, and stop it from reinterpreting the law in secret. America is not supposed to have secret laws, but thanks to the FISC, we do.

Filed Under: ed snowden, fisa, fisa court, fisc, intelligence community, nsa, privacy, raw take, surveillance

FISA Court Shuts Down DOJ's Attempt To Hold Onto Section 215 Metadata Indefinitely

from the not-much-'justice'-over-at-the-DOJ dept

As we recently covered, the DOJ asked the FISA court to extend the disposal deadline of phone metadata from the usual five years to an indefinite period of time, supposedly in order to preserve evidence it might need to present in lawsuits filed against the government. (Not that the DOJ has any intention of ever turning this information over, no longer how long the NSA holds onto it…) Somewhat surprisingly, (outgoing) FISC judge Reggie Walton has turned the DOJ's request down.

The DOJ contended it had a "duty" to preserve evidence -- a duty that supposedly superseded the destruction requirements of the metadata collection. Judge Walton calls the DOJ out for this claim ("the Court rejects this premise"), but more damningly, calls bullshit on the DOJ's citations.

The government cites three cases in support of its position: Inc. v. So, 271.R.D. 13 (S.D.N.Y. 2010), Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284 (S.D.N.Y. 2009), and Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). Although the destruction of electronic records was an issue in all three cases, R.F.M.A.S. at 40; at 287-88; Zubulake at 434, none of these cases involved a conflict between a litigant's duty to preserve electronic records and a statute or regulation that required their destruction. They merely demonstrate that, when triggered, a civil litigant's duty to preserve relevant evidence includes electronic records and that duty trumps a corporate document destruction policy. The Court has not found any case law supporting the government's broad assertion that its duty to preserve supersedes statutory or regulatory requirements.

So, that's the DOJ's "legal basis" for the indefinite retention of bulk metadata: preservation of evidence statutes governing private entities. It somehow hoped to treat the FISA court as nothing more than a regulatory speed bump rather than the fine line between national security and outright civil liberty abuse. The FISA court points out that what it's asking for is much more significant than it seems to realize. As Walton reminded the NSA in one of his earlier court orders, without the minimization procedures in place, the Section 215 collection would be unconstitutional.

In other words, nearly all of the call detail records collected pertain to communications of non-U.S. persons who are not the subject of an FBI investigation to obtain foreign intelligence information, are communications of US. persons who are not the subject of an FBI investigation to protect against international terrorism or clandestine intelligence activities, and are data that otherwise could not be legally captured in bulk by the government.

These are the same call records the DOJ wants to hold indefinitely, and its only justifications aren't even relevant to the data in question, as Judge Walton points out:

In sharp contrast with the document retention policies of corporations, the restrictions on retention of United States person information embodied in FISA minimization procedures are the means by which Congress has chosen to protect the privacy interests of United States persons when they are impacted by certain forms of intelligence gathering.

Walton points out the danger of granting the DOJ this extension, saying doing so would "significantly increase" the chance of the retained metadata being improperly used or disseminated. There is little doubt the NSA would have enjoyed an indefinite extension on the destruction data, given the "collect it all" proclivities of its various directors. But the DOJ's argument is ultimately empty.

The argument is also highly suspect. As noted in our earlier story, the DOJ made no similar effort to retain data pertaining to a 2008 lawsuit with the EFF -- data which would have been disposed of in 2013. This data likely wouldn't have helped the DOJ, or at the very least, would have resulted in a long legal battle to keep it hidden.

With that in mind (and being naturally cynical), it's tempting to view the DOJ's weak effort to hold onto the data as a deliberate ploy to help it keep this metadata from ever appearing in court. Having this granted would have been a small win for the NSA, which could then hold onto data presumably forever. But old data isn't nearly as useful as fresh data, as the NSA knows. The bigger win would be the disposal of data related to lawsuits. The FISA court shooting down this request means that, if the NSA/DOJ buy enough time, the metadata will never appear in court.

The government seems to be dealing itself a lot of winning hands in the ongoing NSA debacle, leaving the surveilled public damned with both do's and don'ts.

[Also worth a read is Marcy Wheeler's coverage of this decision over at Emptywheel, where she points out that this is possibly the first time the FISA court has actually attempted to establish a limit on what the government finds "relevant" to its War on Terror.]

Filed Under: doj, fisa, fisc, metadata, section 215

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eric Holder Officially Signs New Rules To Protect Journalists... But Fine Print Shows They're Meaningless

from the that's-a-mighty-big-loophole-you've-got-there dept

Last summer, after there were a few different revelations (pre-Snowden) of the DOJ using questionable means to spy on journalists -- including pretending one reporter was a co-conspirator in order to get his records -- Attorney General Eric Holder promised new rules that would be marginally more respectful of protecting journalists. While recent reports have suggested that these new guidelines were considered official policy in the DOJ for the past few months, last week they were officially signed by Holder.

As expected, the rules do suggest a slight nod towards respecting the privacy of journalists who are engaged in "ordinary news-gathering activities" but leaves open plenty of loopholes. The biggest, by far, is noted by Marcy Wheeler, who points out that the new rules don't cover FISA warrants or National Security letters. In other words, the DOJ can still make use of the massively abused process of national security letters (NSLs) to go on fishing expeditions against journalists. As Wheeler notes, this means that the new guidelines are "worth approximately shit in any leak -- that is, counterintelligence -- investigation."

The whole thing is a joke, but the problem is that the idea of a free and open press is the punchline.

Filed Under: doj, eric holder, fisa, free press, journalism, nsl

New FISA Court Appointees Are A Pro-Government Prosecutor And An Unknown Quantity

from the change:-the-slowest-and-most-unstable-element dept

Back in June of last year, as the Snowden leaks first began rolling out, we covered a Reuters story that helped explain exactly how the FISA court had become so compliant in its relationship with the NSA. Part of the problem was the appointees, selected by Supreme Court Chief Justice John Roberts, which were overwhelmingly Republican.

12 of the current 14 judges are Republicans and most were appointed by Republican presidents. The conservative majority naturally lent itself to George W. Bush's newly-minted, post-9/11 War on Terror. That so little consideration has been given to the American public's concerns is unsurprising, what with a slate of judges composed of prosecutors and enablers of questionable government behavior. The two newest faces, despite both being originally appointed to the bench by Democrat presidents, may do very little to change the overall makeup of the court.

Seattle-based 9th U.S. Circuit Court of Appeals Judge Richard Tallman joined the court of review for a term that started last month. Democratic President Bill Clinton appointed Tallman, a Republican, as a federal appeals court judge in 2000.

A former federal prosecutor, Tallman joined the 9th Circuit as part of a deal between Clinton and Republican senators. Tallman has developed a reputation as a smart, hard working judge who frequently sides with the government in criminal cases, said Rory Little, a Hastings College of the Law professor who regularly argues before the court.

"He certainly does not express suspicion of governmental action very often," Little said.

Tallman's appointment doesn't appear to address the "rubber stamp" problem. As you may remember from another post here at Techdirt, Judge Richard Tallman was one of four judges who dissented from the majority opinion which found that warrantless access to hotel and motel guest records by the LAPD was unconstitutional. His major objection was that the decision presumed the worst about the police department, while he was more inclined to presume the best.

The ordinance does not claim to alter the LAPD's constitutional responsibility to adhere to Fourth Amendment safeguards when making any demand for information," Tallman's dissent states. "We cannot presume that police have violated the Fourth Amendment without any facts with which to make that determination."

The major flaw in Tallman's argument is that the city's ordinance, as written, makes no requirement that the LAPD consider the constitutional implications of accessing the records without warrants. Instead, it merely granted them carte blanche access while simultaneously hitting motel/hotel owners with criminal charges if they challenged the LAPD's access.

Judging from his dissent, Tallman is a perfect fit for the NSA, which prefers its access to information warrantless, on demand and in bulk.

The other appointee, Judge James E. Boasberg, is a bit of a tougher read. On one hand, back in 2012, he shot down Judicial Watch's FOIA request for the Bin Laden death photos, ruling that national security interests outweighed the public interest. On the other hand, he denied the DOJ's attempt to withhold documents related to "Standard Operating Procedure 303," (the government's ability to deactivate wireless networks in case of emergency) which EPIC sought after San Francisco police shut down protestors' cellphone communications.

Boasberg, like many other FISA judges, was previously a prosecutor, but unlike many of the others, also has some experience with First Amendment issues, having spent some time as a civil litigator specializing in defamation law.

Boasberg will fill Judge Reggie Walton's seat, one of the only FISC judges to confront the NSA on its bad habits, sloppy collection techniques and deliberate misrepresentation of its efforts. With his limited track record in related areas, Boasberg could go either way. He's pushed back against the government before, and with some First Amendment trench experience, may be more amenable to considering constitutional implications.

This duo of government-company-man and a relatively unknown quantity isn't exactly the most heartening set of appointees, but if nothing else, it may indicate the Chief Justice John Roberts may be feeling the heat for packing the court with pro-government prosecutors and Republicans.

Filed Under: fisa, fisa court, fisc, james boasberg, john roberts, richard tallman