President Obama Drops His Promise To Take Phone Metadata Away From NSA... But Perhaps That's Fine [Updated]

from the so-much-for-reform dept

Update: After talking to a few people about this, it's beginning to look like we may have overreacted to Reuters overreacting. The Reuters report focused on just one aspect of the proposal -- taking the data out of the NSA and giving it to a "trusted" third party. The problems that almost everyone pointed out at that time was that it's unclear how that "trusted third party" would actually be any safer than the NSA -- and many had assumed that idea was dropped long ago. Instead, everyone -- including the White House -- shifted the focus to just letting the telcos hang onto the data, like they do already, and hand it over when required by law. And the White House still supports that plan. In short, the only thing that was dropped was the bad idea of creating some new third party -- and that's an idea that most had assumed was dropped months ago for being nonsensical. We apologize for being misleading and not digging deep enough to understand the details. Original post below

As you may recall, about a year ago, President Obama gave a speech pledging some fairly weak NSA reforms in response to the Snowden revelations. There were some good things proposed, but he could have gone much further. One specific promise: the NSA would stop hoarding metadata on every phone call. As he said, it was time to "transition away" from using Section 215 of the Patriot Act to collect all those phone calls for the NSA to snoop through. Of course, he left the details up to Congress. And, Congress, in true Congress-like fashion, completely dropped the ball and failed to approve any of the proposed legislative changes that would have ended the metadata collection program.

So, President Obama is giving up. He apparently is breaking his promise to take the metadata away from the NSA:

President Barack Obama's administration has quietly abandoned a proposal it had been considering to put raw U.S. telephone call data collected by the National Security Agency under non-governmental control, several U.S. security officials said....

[....]

The Obama administration has decided, however, that the option of having a private third party collect and retain the telephone metadata is unworkable for both legal and practical reasons. "I think that's accurate for right now," a senior U.S. security official said.

It is neither unworkable for legal nor practical reasons. It's only unworkable because of political reasons in that Congress couldn't get its act together to bar the practice.

Furthermore, if President Obama had ever actually been serious about ending the program, he could have easily done it himself. That's because his administration has to go back to the FISA Court every few months to renew the program -- and he could have simply not had them do so. But, instead, the DOJ has just kept on renewing over and over again since then.

And thus, the NSA gets to keep on collecting all that metadata -- unless the courts magically put a stop to it or Section 215 isn't renewed by Congress in June of this year...

Filed Under: metadata, nsa, patriot act, president obama, section 215, surveillance

FBI Defuses Another Of Its Own Terrorist Plots; John Boehner Pretends It's Evidence That We Need To Renew The PATRIOT Act

from the wag-that-dog dept

Last week, as you may have heard, the Justice Department breathlessly announced that it had uncovered and broken up a terrorist plot against the government, leading to the arrest of a 20 year-old man, Christopher Lee Cornell, in Ohio. According to the FBI, Cornell was planning to go to the US Capitol and kill government officials. As often happens with these kinds of announcements, the press was quick to jump in and fuel the narrative of some big terror plot that the FBI was able to miraculously disrupt at the last minute.

For years now, we've pointed out a pattern of how nearly every big headline about the US disrupting a domestic terrorist attack was almost always about the FBI creating its very own plot, and then pressuring and cajoling some vulnerable, poverty-stricken, desperate Muslim (almost always Muslim) young men into "joining" this plot. This happens despite those individuals rarely having expressed direct interest in any sort of terrorist activity, or having any connections or means to carry out such activity. But with continued pressure from "FBI informants" (who tend to either by paid by the FBI or are trying to reduce punishment for other crimes they've been charged with -- or both), eventually these men agree to take part in a "plot" that was entirely designed by the FBI and had no chance of ever happening. We've written about similar occurrences over and over and over and over and over and over and over and over and over and over and over and over again.

It looks like this one is more of the same. As The Intercept reports:

 The alleged would-be terrorist is 20-year-old Christopher Cornell, who is unemployed, lives at home, spends most of his time playing video games in his bedroom, still addresses his mother as “Mommy” and regards his cat as his best friend; he was described as “a typical student” and “quiet but not overly reserved” by the principal of the local high school he graduated in 2012.

Not only did he just convert to Islam a few months ago (and there's no indication that he ever actually attended the mosque that he claimed to have joined), but the details of the overall story certainly match the pattern of an FBI made up plot:

The affidavit filed by an FBI investigative agent alleges Cornell had “posted comments and information supportive of [ISIS] through Twitter accounts.” The FBI learned about Cornell from an unnamed informant who, as the FBI put it, “began cooperating with the FBI in order to obtain favorable treatment with respect to his criminal exposure on an unrelated case.” Acting under the FBI’s direction, the informant arranged two in-person meetings with Cornell where they allegedly discussed an attack on the Capitol, and the FBI says it arrested Cornell to prevent him from carrying out the attack.

For someone supposedly plotting a terrorist attack, Cornell didn't seem particularly subtle. The affidavit notes that Cornell first came to their attention because of his tweets in support of ISIS. Then the informant reached out to him and began pushing the plot.

Yet, it's not just the mainstream press that is exaggerating this story. Speaker of the House John Boehner wasted little time in claiming that Cornell was only discovered because of "the FISA program."

“The first thing that strikes me is that we would’ve never known about this had it not been for the FISA program and our ability to collect information for people who pose an imminent threat.”

Except, uh, no. The dude was posting on a public Twitter feed and then had a government informant reach out to him. It doesn't look like anyone needed any particular "FISA program." Thankfully, at least some reporters quickly called bullshit on this, noting that the facts of the case don't at all match up with a situation in which any sort of FISA-approved surveillance effort was needed.

Instead, it seems clear that this is just blatant and cynical fear-mongering by John Boehner in the lead-up to the fight to renew certain provisions of the PATRIOT Act, including Section 215, which is the program under which the NSA and FBI get bulk phone records from phone companies (and, most likely, other bulk records). As Julian Sanchez points out in the link above, there seems to be no reason to have used data collected under Section 215 in this case:

According to the criminal complaint, it was an informant hoping to reduce his own criminal sentence who brought Cornell to the Bureau’s attention. Nor, indeed, was Cornell particularly subtle: Under the Twitter handle ISBlackFlags, he pseudonymously voiced support for the Islamic State and violent jihad. If that’s true, then while it would hardly be surprising if Cornell’s phone records were reviewed at some point in the investigation, it’s hard to see how a bulk telephone database could have been essential to identifying him. Once Cornell had been identified, of course, traditional targeted intelligence or law enforcement authorities would have been sufficient to allow investigators access to his metadata—or, for that matter, his online communications.

But, knowing that the fight over renewing Section 215 is going to be a big deal later this year, it appears that Boehner used this as a bogus excuse to start laying the groundwork for such an approval. Remember, that multiple groups -- including the White House's own review board and the government's Privacy and Civil Liberties Oversight Board -- couldn't find any evidence that the 215 program was necessary in stopping a single domestic terrorist attack. The only case that it was really involved in was a guy in California sending some money back to Somalia.

When the fight to renew 215 really ramps up, this lack of a success story is likely to come up. And, thus, it appears that the supporters of the surveillance state are desperately in need of some "success stories" for the 215 program, and Boehner seems to have rushed out and grabbed the first available one and he's going to milk it for all its worth.

“I’m going to say this one more time because you’re going to hear about it for months and months to come as we attempt to reauthorize the FISA program: Our government does not spy on Americans — unless they are Americans who are doing things that frankly tip off our law enforcement officials to an imminent threat. It was our law enforcement officials and those programs that helped us stop this person before he committed a heinous crime in our nation’s capital.”

Except, no, it wasn't. This sounds like yet another of the government self-built plots that had no chance of ever taking off, and the only reason Cornell, a homebound videogame player who calls his mother "Mommy," got involved was because he was a gullible, disenchanted kid who spouted off some stupid statements on Twitter, making him easy prey.

Filed Under: chris cornell, christopher lee cornell, doj, fbi, fisa, john boehner, nsa, own plot, own plots, patriot act, section 215, surveillance

When The FISA Court Rejects A Surveillance Request, The FBI Just Issues A National Security Letter Instead

from the oversight! dept

We've talked quite a bit about National Security Letters (NSLs) and how the FBI/DOJ regularly abused them to get just about any information the government wanted with no oversight. As a form of an administrative subpoena -- with a built in gag-order -- NSLs are a great tool for the government to abuse the 4th Amendment. Recipients can't talk about them, and no court has to review/approve them. Yet they certainly look scary to most recipients who don't dare fight an NSL. That's part of the reason why at least one court found them unconstitutional.

At the same time, we've also been talking plenty about Section 215 of the PATRIOT Act, which allows the DOJ/FBI (often working for the NSA) to go to the FISA Court and get rubberstamped court orders demanding certain "business records." As Ed Snowden revealed, these records requests can be as broad as basically "all details on all calls." But, since the FISA Court reviewed it, people insist it's legal. And, of course, the FISA Court has the reputation as a rubberstamp for a reason -- it almost never turns down a request.

However, in the rare instances where it does, apparently, the DOJ doesn't really care, knowing that it can just issue an NSL instead and get the same information. At least that appears to be what the DOJ quietly admitted to doing in a now declassified Inspector General's report from 2008. EFF lawyer Nate Cardozo was going through and spotted this troubling bit: If you can't read it, it says:

We considered the Section 215 request for [REDACTED] discussed earlier in this report at pages 33 to 34 to be a noteworthy item. In this case, the FISA Court had twice declined to approve a Section 215 application based on First Amendment Concerns. However, the FBI subsequently issued NSLs for information [REDACTED] even though the statute authorizing the NSLs contained the same First Amendment restriction as Section 215 and the ECs authorizing the NSLs relied on the same facts contained in the Section 215 applicants...

In other words, the FBI had a neat way to get around a rare FISA Court rejection: just issue an NSL and ignore the First Amendment concerns.

Apparently, to some, whatever weak "oversight" there is from the FISA Court really just means "find another door in to violate the same Constitutional issues."

Filed Under: doj, fbi, national security letters, nsa, nsls, section 215, surveillance

DOJ Misleads Court About Medical And Financial Records In Appeals Over NSA Surveillance

from the because-that's-what-the-DOJ-does dept

Earlier this week, the Ninth Circuit heard oral arguments in a challenge to the NSA's phone metadata program. While watching, I noticed some quite misleading legal claims by the government's counsel. I then reviewed last month's oral arguments in the D.C. Circuit, and I spotted a similar assertion.

In both cases, the government attorney waved away constitutional concerns about medical and financial records. Congress, he suggested, has already stepped in to protect those files.

With respect to ordinary law enforcement investigations, that's only slightly true. And with respect to national security investigations, that's really not right.

Medical Records

During Smith, the Ninth Circuit case, there was an extended line of questioning about various sorts of business records. Judge Hawkins kicked it off:

Suppose the National Security Agency wanted access to all utility records. Nationwide. Would that rationale apply?

Subsequent discussion touched on hotel and financial records. Then Judge McKeown asked:

What about medical records?

The Department of Justice attorney responded:

Well medical records, Judge McKeown I'm so glad you asked that because this is really an important point, medical records would be subject to HIPAA, among other protections.

A similar question in Klayman, the D.C. Circuit case, drew a similar response.

HIPAA, in your example Judge Brown, would govern the restrictions, would impose restrictions on the proper use of medical information.

Later in the Smith argument, counsel reemphasized the importance of HIPAA, including:

But I think the significance of HIPAA can't be discounted.

By way of background, the Health Insurance Portability and Accountability Act is the primary federal law that addresses health records. Under HIPAA, the Department of Health and Human Services is empowered to promulgate detailed privacy rules.

Here's the catch: the HIPAA privacy rules have special exceptions for law enforcement and national security investigations.

The law enforcement provision is very broad. It covers all the usual police procedures, including subpoenas. Those don't require a judge's advance permission, and they also require much less basis than probable cause.

The national security exception is, of course, even more pertinent to the Smith and Klayman cases. And it's even broader.

A covered entity may disclose protected health information to authorized federal officials for the conduct of lawful intelligence, counter-intelligence, and other national security activities authorized by the National Security Act (50 U.S.C. 401, et seq.) and implementing authority (e.g., Executive Order 12333).

In non-legalese: HIPAA just doesn't apply to the NSA.¹ And yet, in two separate NSA appeals, the government has emphasized HIPAA.²

Financial Records

In the Smith argument, government counsel twice noted that Congress has enacted privacy protections for financial records.

Following Miller, Congress enacted the financial privacy protections by statute.

In response to Miller, that Congress enacted a bank records protection of privacy . . .

Similarly, in Klayman:

For example, following the Miller case, Congress passed a statute governing the secrecy of bank records.

As background, United States v. Miller held that routine financial records are not protected by the Fourth Amendment. Two years later, Congress passed the Right to Financial Privacy Act… which largely codified Miller. Law enforcement agencies can still access financial records with just a subpoena.³

What's more, RFPA includes a special set of national security procedures. Federal grand jury subpoenas and warrants aren't covered by RFPA, so long as the investigating agency self-certifies “there may result a danger to the national security of the United States.”

RFPA also includes a National Security Letter provision. In counter-intelligence and counter-terrorism investigations, the FBI (and, by proxy, the NSA) doesn't even need a grand jury subpoena. It can demand financial records with a mere self-certification.

So, once again: in a national security appeal, why emphasize privacy protections that don't extend to national security investigations?

Section 215 of the USA PATRIOT Act

The precise statutory provision at issue in Smith and Klayman is Section 215 of the USA PATRIOT Act. It allows FBI (and NSA) access to any business records when conducting a counter-intelligence or counter-terrorism investigation.⁴ A FISA judge's approval is required, though the standard for issuance is very low.

Section 215 covers medical records. A part of the statute, in fact, expressly addresses them.

Section 215 also covers financial records. In a 2010 opinion, the FISA Court held as much. And, in fact, the CIA operates a bulk financial surveillance program under Section 215.

In sum: not only are national security investigations generally outside HIPAA and RFPA, but the very same authority at issue in Smith and Klayman allows access to medical and financial records.

Concluding Thoughts

Reasonable minds can disagree on whether the government's representations in Smith and Klayman were literally false. At minimum, they were highly misleading.

United States privacy law is notoriously convoluted. But this much is certain: medical and financial records are, by statute and rule, readily available to the intelligence community. The executive branch shouldn't even hint otherwise.

---

Thanks to the colleagues who provided feedback on the legal analysis in this post. All views are solely my own.

1. In most instances of domestic surveillance, NSA requests are passed through the FBI. Since the National Security Act designates the FBI as a member of the intelligence community, its national security investigations are also unregulated by HIPAA.

2. In a charitable interpretation, the attorney misspoke while attempting to note that Congress can craft more nuanced privacy rules than the courts, and that Congress can provide privacy protections beyond the Fourth Amendment. Those points are undoubtedly true, though undoubtedly known to the judges.

3. A plain reading of RFPA suggests some privacy protection: targets receive advance notice of a subpoena and have an opportunity to contest the subpoena. In everyday practice, however, RFPA's delayed notice provisions have swallowed the rule. Law enforcement agencies routinely obtain court orders that both eliminate the advance notice requirement and temporarily gag financial institutions from disclosure.

4. Where U.S. persons aren't involved, any foreign intelligence purpose is sufficient.

Reposted from Web Policy

Filed Under: 4th amendment, bank records, doj, hipaa, klayman, nsa, patriot act, privacy, rfpa, section 215, smith, surveillance

Former Top NSA Exec Claims He Challenged The Bulk Phone Records Program... And Was Rebuffed

from the and-everyone-laughed-at-him dept

The AP has a big story out claiming that, back in 2009, a "now-retired" but "senior NSA official" found out about the Section 215 program collecting bulk phone records from the telcos and argued that it went too far and should be stopped:

Years before Edward Snowden sparked a public outcry with the disclosure that the National Security Agency had been secretly collecting American telephone records, some NSA executives voiced strong objections to the program, current and former intelligence officials say. The program exceeded the agency's mandate to focus on foreign spying and would do little to stop terror plots, the executives argued.

The 2009 dissent, led by a senior NSA official and embraced by others at the agency, prompted the Obama administration to consider, but ultimately abandon, a plan to stop gathering the records.

The "former official" apparently found the whole program to be problematic and correctly predicted that if it ever became public it would be a problem:

The former official, who spoke only on condition of anonymity because he didn't have permission to discuss a classified matter, said he knows of no evidence the program was used for anything other than its stated purpose — to hunt for terrorism plots in the U.S. But he said he and others made the case that the collection of American records in bulk crossed a line that he and his colleagues had been taught was sacrosanct.

He said he also warned of a scandal if it should be disclosed that the NSA was storing records of private calls by Americans — to psychiatrists, lovers and suicide hotlines, among other contacts.

The article notes that these concerns did lead the Justice Department, Congress and the White House to take a closer look at the program -- and then choose to keep it going. This contradicts the narrative that some have suggested that the White House didn't fully understand the program in the past because it was preoccupied with other issues. Now it seems clear that not only were officials well aware of the program, they chose not to rein in the program when they had the chance.

The article further notes that this official and others within the NSA who were concerned with the program had offered up some suggested changes, not unlike what was actually in the USA Freedom Act that was just rejected. Perhaps more interesting, the article concludes by pointing out that if this change had been put in place, there's a decent chance that Ed Snowden never would have revealed everything else -- because this was the main program that so concerned Snowden, and which has been the centerpiece of most of the discussions since the Snowden revelations.

Filed Under: bulk collection, nsa, patriot act, section 215

Here's Hoping Judge Ignores The Nutty Plaintiff With An Important Case On NSA Surveillance Of Business Records

from the hopefully,-hopefully dept

Many of us were excited, 11 months ago, when District Court Judge Richard Leon ruled that the NSA's bulk collection of phone metadata was unconstitutional. This was the first program revealed via the documents from Ed Snowden, and it involved the US using Section 215 of the PATRIOT Act, approved by the FISA Court with little explanation (until much later) to say that it's okay to request all phone records from Verizon. What had been often mentioned as a brief aside, is the fact that the plaintiff in the case, Larry Klayman is a bit of a conspiracy-theorist nutjob.

That came out loud and clear earlier today during the oral arguments in the appeal (Klayman had tried to go straight to the Supreme Court, which failed, though pretty much everyone expects the case to get back there eventually). Dan Froomkin, over at The Intercept, briefly discusses how Klayman's nutty rantings in the court have the potential to derail the whole thing.

But the lead plaintiff in this case is Larry Klayman, a bombastic and litigious conspiracy theorist who happened to file one of the first post-Snowden lawsuits.

And when the three-judge panel began peppering him to substantiate his claims of standing and harm, Klayman was unable to make a cogent argument. He accused the government of consistently lying and of getting “into people’s underwear.” And he cast himself personally as the victim of government surveillance and dirty tricks, saying his phone made calls he never placed and that a client’s computer had been broken into.

“I can’t talk on the phone anymore,” he complained.

He told the judges they were the last defense against tyranny, and warned them of revolution should they fail.

Riiiiiiiight.

Thankfully, Cindy Cohn from the EFF was also on hand and provided a much more legally relevant and defensible argument:

On the crucial issue of how the information being collected by the NSA differs from the information being collected in the 1979 case of Smith v. Maryland, Cohn provided the key answer that Klayman was incapable of summoning: Its size.

Smith was about one robbery suspect, whose calls were monitored for three days. “This is the untargeted mass collection of the phone calls of millions of people over many years,” Cohn said.

Judge David Sentelle interrupted: “Does it become an invasion because there’s lots of it? Or is a million times nothing still nothing?”

Cohn said American citizens have a reasonable expectation that the government isn’t logging all their phone calls all the time for no specific reason. “There are regular people making everyday phone calls, that are swept up in this.”

There's much more in the actual discussion, but this is really what the case is about. Can the courts continue to take the awful Smith v. Maryland argument, saying that it was okay to get a single phone's records from the phone company without a warrant, and extrapolate it out to mean that the government can demand every phone record of every call. There's still a lot more to go in this process, including a likely rehearing with the full DC Circuit and then the eventual Supreme Court ruling. One just hopes that Klayman's nuttiness doesn't get in the way of this important case.

Filed Under: 4th amendment, 9th circuit, appeals, cindy cohn, larry klayman, nsa, phone records, richard leon, section 215, smith v. maryland, surveillance, third party doctrine

FISA Court Twists PATRIOT Act To Pretend It's Okay To Spy On Americans Based On Their Constitutionally Protected Speech

from the that's-a-problem dept

We've written before about how it appears that the DOJ/FBI and NSA have conducted surveillance on Americans almost entirely based on First Amendment-protected activities. Whenever that issue comes up, the Intelligence Community and its defenders insist no way, that they take the prohibition on surveillance over First Amendment protected activities seriously. Section 215 of the Patriot Act is rather explicit:

the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

Seems clear, right? But, of course, what seems clear in the statute and how the intelligence community and the rubber-stamping FISA Court will view things often seem to differ by a wide margin. The FISA court has now released yet another heavily redacted opinion, given by Judge John Bates, concerning just such a request. You may recall Judge John Bates from his recent letters in which he pretends to represent the entire judiciary, in fighting back against any attempt to limit the NSA and the FISA Court's ability to spy on American people. Bates seems absolutely sure that doing so will let the terrorists win, which gives you a glimpse into his mindset.

Thus, while depressing, it shouldn't be too surprising to find out that when a Section 215 request came to him concerning activity of a US person that was entirely protected by the First Amendment, Bates figured out a way to give the FBI the go ahead to spy on the person anyway. Because terrorism.

While heavily redacted, it seems clear that Judge Bates admits that the nameless person the FBI wishes to spy on didn't do anything that went outside of First Amendment protected speech: Okay then, so all of the activities of this US person are clearly protected under the First Amendment. The law is pretty clear that the FISA Court then cannot grant the power to collect that individual's records. But... Judge Bates is deathly afraid of terrorism, so surely there must be a way to massage things to come up with a reason why it's okay, despite what the law clearly says. So Bates comes up with a neat little trick. He says, sure, the person of interest may only be engaged in protected speech, but some other guy (a non-American, and thus not protected by the First Amendment) is engaged in non-protected speech, and because of the actions of that other guy, the FISA Court will grant the ability for the FBI to slurp up the American's records and data. Because of the redactions, this part is a little more difficult to parse, but it's pretty clearly saying that even though the US person who is the subject of this surveillance request did nothing other than Constitutionally protected speech, because some other person who is not in the US and not directly associated with the party in question, has some evidence of terrorist activity, that makes it okay to spy on the US person.

As law professor Jennifer Granick notes in the link above, this is an extremely troubling interpretation of Section 215, basically allowing the FISA Court to ignore the prohibition on spying on people because of their Constitutionally protected speech, so long as it's somehow a part of a larger terrorism investigation.

The statute prohibits the FBI from investigating law abiding Americans unless their own conduct fell outside of the First Amendment, regardless of the conduct of other people related to the investigation. I think most people, when they cite that statutory language, believe it means that Americans won’t be subjects of terrorism investigations for the First Amendment protected things they say or do.

They would be wrong. Judge Bates’ alternate interpretation allows for Americans exercising only constitutional protected rights to nevertheless be investigated under section 215 so long as there’s an independent, constitutionally unprotected basis for the overarching terrorism investigation.

The takeaway is, Americans are being investigated for their First Amendment protected activity, so long as someone’s else’s related conduct is not protected, even where the relationship between the American and the other party is too attenuated to support suspicion of aiding and abetting or conspiracy.

That is an immensely troubling interpretation of the law, one that appears to run counter to the plain wording of the law, as well as the basic concept of both the First and Fourth Amendments of the Constitution. No freaking wonder Judge Bates has been so adamant against having any sort of civil liberties advocate reviewing and challenging his decisions within the FISC.

Filed Under: doj, fbi, first amendment, fisa court, fisc, free speech, john bates, nsa, patriot act, section 215, surveillance, terrorism

From The Unsealed 'Jewel v. NSA' Transcript: The DOJ Has Nothing But Contempt For American Citizens

from the and-[local]-god-help-you-if-you're-a-foreign-citizen dept

With some of the proceedings unsealed in the EFF's long-running Jewel vs. NSA lawsuit, more details can finally be exposed. Not that what's already been exposed hasn't been damning enough. Over the past several months, the DOJ has run interference for the NSA, traveling from courtroom to courtroom, destroying and saving (or at least pretending to...) collected data amongst a flurry of contradictory orders.

Not that it ultimately mattered. The NSA just kept destroying relevant evidence, claiming the system was too complex to do anything with but allow to run its course. Evidence would be destroyed at the 5-year limit, no matter what preservation orders were issued. The NSA, of course, has a vested interest in destroying evidence that its 215 and 702 programs collect the data and communications of Americans. Thanks to Snowden's leaks, it can no longer pretend it doesn't. But despite this, the DOJ still claims Section 702 targets only foreigners and American suspects located outside of the US.

The mock concern about compliance with court orders was a hustle. The DOJ wants as much evidence that might be useful to plaintiffs gone as swiftly as possible. Thanks to the unsealing of Jewel court documents, the EFF can now relate that the DOJ's efforts went much further than simply letting aged-off collections expire. It also actively tried to change the historical record of the Jewel case, as Mike covered here recently.

Citing classification concerns, the DOJ sought to editorialize its statements to the court, removing them (not redacting them) from the public record… and it didn't want anyone to find out. Take a moment to soak in the audacity of this request, made by the US government in a federal court.

If the judge had sided with the DOJ, there's a good chance some of the transcript embedded below would have gone missing… forever. Even after the documents were eventually unsealed, whatever the government had managed to convince the court was "classified" would no longer exist -- despite the fact that one week earlier these statements were made in an open court room.

It's likely that the judge's decision to notify the plaintiffs changed the DOJ's mind about retconning its own statements. It's a good thing nothing's missing. What's in there is terrible. The DOJ basically mounts the argument that no plaintiff should ever have standing to challenge either the Section 215/501 or 702 programs, unless they are Verizon Business customers… and even then they should only be able to challenge the former. (Apologies for the all caps, but that's the way the court transcribed it.)

AND WE SET THIS FORTH, AGAIN, FOR THIS COURT IN OUR MOST RECENT FILING IN WHICH THE DNI ASSERTED THE STATES SECRET PRIVILEGE AND EXPLAINED TO THE COURT THAT NOTWITHSTANDING ALL THESE TERRIBLE DISCLOSURES THAT OCCURRED OVER THE PAST YEAR -- IN FACT, THIS IS THE ONE YEAR ANNIVERSARY -- DISCLOSURES THAT WE ARE CONVINCED THAT HAVE SERIOUSLY HARMED THE NATIONAL SECURITY OF THIS COMPANY, WE HAVE CONTINUED TO PROTECT THE IDENTITY OF PARTICULAR TELECOMMUNICATION CARRIERS THAT ARE ALLEGED TO HAVE ASSISTED THE NSA, NOT ONLY IN THE SECTION 215 PROGRAM, WHICH WAS AT ISSUE IN THE CASES YOU CITED, BUT ALSO IN THE PRESIDENT'S SURVEILLANCE PROGRAM, ACTIVITIES WHICH ARE AT ISSUE IN JEWEL AND SHUBERT, AS WELL.

SO WE HAVE NOT CONCEDED THAT STANDING COULD BE FOUND BASED ON THE MERE EXISTENCE OF THE BULK TELEPHONY META DATA PROGRAM, IF THAT IS YOUR QUESTION.

Got that, citizens? Because we have made the choice to protect telcos withhold information, you will only have standing to challenge these programs under very narrow circumstances. The government is looking out for the best interests of its partners in surveillance. The rights of citizens are much further down the list.

And while acknowledging that it has withheld info on the telephony metadata program, the DOJ's lawyers simultaneously claim the plaintiffs should have been prevented from amending their case to include the recent Section 702 revelations, because that program has supposedly been out in the open and fully transparent since 2008.

SO I HARDLY KNOW WHERE TO BEGIN. BUT I WILL START WITH THIS. FIRST OF ALL, THE CONTENTION THAT 702 DID NOT EXIST WHEN THE COMPLAINT WAS FILED IS A FALSEHOOD. 702 WAS ENACTED IN 2008, IN JULY OF 2008, AS PART OF THE FISA ACT AMENDMENTS OF 2008.

NOT ONLY DID IT EXIST BEFORE THIS COMPLAINT WAS FILED, THE JEWEL PLAINTIFFS KNEW ABOUT IT, BECAUSE IT'S PRECISELY WHY THEY FILED SUIT. THAT LEGISLATION CREATED IMMUNITY FOR THE TELECOMMUNICATION COMPANIES.

THE ACLU OVER IN NEW YORK, KNEW QUITE WELL IT EXISTED. THEY FILED A COMPLAINT, I THINK, THE DAY IT WAS ENACTED INTO LAW. AND THAT MADE A LOT OF HEADLINES, AND IT WAS LITIGATED. AND IT WAS ALL, ALL PUBLIC. NO SECRET PROGRAM. AND IT WAS OUT THERE. SO THAT STATEMENT IS JUST NOT TRUE.

THE SECOND THING THAT'S NOT TRUE IS HER PROGRAM DESCRIPTION. 702 IS A PUBLIC STATUTORY PROGRAM. IF YOU LOOK AT THE AMNESTY INTERNATIONAL DECISION, IT DETAILS HOW THAT PROGRAM OPERATES. AND SO THAT IS THE SOURCE OF WHAT SHOULD BE THE COURT'S UNDERSTANDING FOR THIS PROGRAM AND HOW IT OPERATES.

Completely disingenuous. The program was never "out in the open." It protected telcos and helped codify warrantless wiretapping, but there was never any indication given that it also allowed the NSA to tap into the internet backbone and siphon off communications of Americans. And it certainly wasn't presented as a tool to be used as an untargeted dragnet.

This is only a small part of a document the DOJ wanted to selectively edit and present later as an untouched factual record of a federal hearing. The government claims no one has standing because everything related to the NSA's programs is "rank speculation" -- basically pretending the "terrible disclosures" never happened. In the same breath, it claims the programs have always been transparent and completely above board, therefore no one should be able to amend their complaints when additional info is exposed by leakers.

The government not only wants it both ways, but it has the breathtaking gall to ask to touch up its talking points after delivering them. After a dozen attempts to wrap up this post with something that pithily highlights the anger the government's editing attempt (and the horrible arguments contained in the transcript) has generated in me, I'm left with little more than this: FUCK THE DOJ -- it and every agency it oversees.

It witholds information about the companies involved in its dragnet surveillance programs, covers up everything else and pretends unauthorized disclosures "don't count," at least not when it comes to citizens being granted standing. It could easily clear up this "rank speculation," but it would rather shelter telcos from irate customers and give itself an easy way to get lawsuits dismissed. Then it spins everything around and claims the plaintiffs are misrepresenting the programs to the court -- something the DOJ has actually done itself -- and should not be allowed to amend complaints to reflect additional evidence gleaned from leaked documents.

Hey, I'm sorry the leaks have made it harder for these agencies to do whatever the hell they want, but they are all part of a government that's supposed to be accountable to the citizens picking up the check. But when faced with unhappy citizens and their diminished rights, all the DOJ's lawyers can say is that the public doesn't know shit and has no right to question the government's activities.

The government has somehow managed to come to a conclusion others reached weeks ago -- there's more than one leaker out there. GOOD. Burn it down. In the DOJ's hands, the government isn't by or for the people. It's despite the people. The DOJ can't be trusted to protect the balance between privacy and security. As it sees it, what the public doesn't know will likely hurt it, and it's damned if it's going to allow citizens to seek redress for their grievances.

Filed Under: 4th amendment, contempt, doj, jewel v. nsa, nsa, privacy, section 702, section 215, 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

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