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

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

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 Say They Don't Want Any Changes To How The Rubber Stamp Court Is Run

from the leave-fisc-alone! dept

Oh, those poor, poor FISA Court (FISC) judges. The court, which has a habit of approving every single request to spy on Americans (though, sometimes asking for minor modifications) has already complained about how unfair it is that everyone thinks they're just a rubber stamp. And, to be fair, some of the documents that have been revealed have shown that there are a few times that the FISA Court has become quite angry about how the NSA and DOJ have basically lied. And, it's even ordered certain programs be (temporarily) stopped or changed. But, in the long run, it's still pretty much allowed the NSA to keep on keeping on. And, the FISC judges have admitted that they're not particularly able to do real oversight, since they're entirely reliant on what the NSA tells them. There's also the fact that all of the FISC judges are appointed by Supreme Court Chief Justice John Roberts, leading to a very specific political leaning in all of them.

And, now, it appears, that the FISC judges are speaking out against any actual reforms or changes to the FISC, because (and I'm not making this up), it might mean they have a bit more work to do. Judge John Bates has sent a letter to Senator Dianne Feinstein basically saying that they'd prefer not to do any more work, and making some crazy claims about how the reforms might "disrupt" the ability of the court to protect national security.

Even if additional financial, personnel, and physical resources were provided, any substantial increase in workload could nonetheless prove disruptive to the Courts' ability to perform their duties, including responsibilities under FISA and the Constitution to ensure that the privacy interests of United States citizens and others are adequately protected.

Yes, did you get that? Any attempt to better protect the privacy interests of the public -- which is what these reforms are designed to do -- might actually hinder the FISC's ability to protect the privacy interests of the public. Talk about doublespeak. First, there's no evidence that the FISC ever actually protected the privacy interests of the public, and the idea that reforms to protect the privacy interests of the public would somehow undermine the FISC's ability to protect those privacy interests is laughable.

What about the idea of an advocate for the public in certain cases -- someone to make sure that hearings are actually conducted on an adversarial basis? Oh boy, does the FISC hate that idea too:

The participation of a privacy advocate is unnecessary-and could prove counterproductive--in the vast majority of FISA matters, which involve the application of a probable cause or other factual standard to case-specific facts and typically implicate the privacy interests of few persons other than the specified target. Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation. Advocate involvement in run-of-the--mill FISA matters would substantially hamper the work of the Courts without providing any countervailing benefit in terms of privacy protection or otherwise; indeed, such pervasive participation could actually undermine the Courts' ability to receive complete and accurate information on the matters before them.

Got that? Having an advocate for the public's interest might mean that the court can't dig and get as much info as possible, thereby... um... harming the privacy interests of the public. Really?

Oh, and if there must be an "advocate" for the public, he or she should apparently be really designed to help the judges rather than an independent voice for the public interest:

In those matters in which an outside voice could be helpful, it is critical that the participation of an advocate be structured in a manner that maximizes assistance to the Courts and minimizes disruption to their work. An advocate appointed at the discretion of the Courts is likely to be helpful, whereas a standing advocate with independent authority to intervene at will could actually be counterproductive.

Okay, how about requiring the FISC to actually review national security letters (NSLs), instead of just allowing the FBI and others to issue them willy-nilly with no oversight, despite long standing evidence of massive abuses on an astounding scale? Again, too much work:

Drastically expanding the FISC's caseload by assigning to it in excess of 20,000 administrative subpoena-type cases NSLS) per year -- even with a corresponding injection of resources and personnel -- would fundamentally transform the nature of the FISC to the detriment of its current responsibilities.

The plan to change how the judges are appointed, so that it's no longer a court shaped in the vision of Justice John Roberts exclusively? No dice, says Judge Bates.

It is important that the process for selection of FISC and Court of Review judges remain both expeditious and fully confidential; the Chief Justice is uniquely positioned to select qualified judges for those Courts.

He doesn't explain why any of that makes sense. There's no reason why FISC judges can't be approved in a more diverse manner. Yes, the Senate has certainly made judicial nomination approvals a political football lately, but appointing already approved judges to FISC can certainly be done by Congress rather than by a single guy appointed to a lifetime position.

What about more transparency on when the FISC rules on things? Oh no, says Judge Bates, actually telling the public about what the FISC rules might confuse those stupid idiotic people who make up the public:

In many cases, public disclosure of Court decisions is not likely to enhance the public's understanding of FISA implementation if the discussion of classified information within those opinions is withheld. Releasing freestanding summaries of Court opinions is likely to promote confusion and misunderstanding.

There you have it: let's keep important court rulings secret, because the public are morons. Brought to you by the former chief judge of FISC.

Given that the FISC has taken a lot of the attacks for its weak to non-existent oversight of the NSA, it's no surprise that they're a little touchy about all of this, including the idea that some reforms might suggest that they really did an incredibly crappy job for the past decade or more. But the reasoning given in this letter amounts to little more than (1) we don't want to do any more work, even if you let us hire a lot more people and (2) the public is stupid and annoying, please keep us shielded from them.

Filed Under: dianne feinstein, fisa court, fisc, john bates, nsa, privacy, public interest, surveillance

Declassified Opinion On Bulk Email Collection Details More Abuse By The NSA

from the and-yet-the-program-received-a-green-light dept

As more NSA-related documents are forced out into the public eye, the narrative contained within the court opinions is at odds with the NSA's continuous declarations that utmost care has been taken to prevent violating the privacy of Americans.

A previous release detailed how FISC Judge Reggie Walton nearly shuttered the Section 215 program in 2009 due to widespread abuse by NSA analysts. The evidence uncovered by internal audits and the agency's own admissions led Walton to issue this damning statement:

The minimization procedures… have been so frequently and systemically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively.

The NSA's bulk internet metadata program (Stellar Wind) was also suspended for several months due to numerous violations. Judge John Bates, taking over for Kollar-Kotelly (who issued the opinion granting the NSA permission to collect internet metadata on Americans by using a very generous reading of the pen register statute), makes it clear he's wholly unimpressed with the agency's trustworthiness.

Although the specific terms of authorization under those orders varied over time, there were important constants. Notably, each order limited the authorized acquisition to [redacted] categories of metadata. As detailed herein, the government acknowledges that NSA exceeded the scope of authorized acquisition continuously during the more than [redacted] years of acquisition under these orders.

Although all dates are redacted, the opinion does cite Judge Walton's 2009 findings (in reference to the Section 215 program). The authorization of the email metadata collection seems to have been granted in 2005 (at least in terms of targeting Americans), suggesting that we're looking at close to another half-decade of abuse by the agency in this program -- abuse that saw this program temporarily suspended as well.

Despite these almost-concurrent (and lengthy) episodes of abuse, the government not only sought reinstatement of the program, but also an expansion.

The current application relies on this prior framework, but also seeks to expand authorization in ways that test the limits of what the applicable FISA provisions will bear. It also raises issues that are closely related to serious compliance problems that have characterized the government's implementation of prior FISC orders.

The court points out in a footnote that the oversight it's supposed to provide (and that its defenders constantly point to) is severely hampered by the government itself.

The government argued that "FISA prohibits the Court from engaging in any substantive review of this certification," and that "the Court's exclusive function" was "to verify that it contains the words required" by the statute.

The court wasn't impressed by this argument (but ultimately decided in favor of the government anyway) but it's telling that the government would choose to read the Act as supportive of thwarting oversight.

Even when the government itself is presenting its case, it still can't find a way to make the violations appear minimal.

As described by the government, the unauthorized collection resulted from failures to [redacted] in the manner required… By the government's account, the lack of required [redacted] did not result from technical difficulty or malfunction, but rather from a failure of "those NSA officials who understood in detail the requirements of the [redacted] Opinion… to communicate those requirements effectively…"

The government assessed the violations to have been caused by "poor management, lack of involvement by compliance officials, and lack of internal verification procedures -- not by bad faith."

The scenario painted by the government is one of minimal care being taken with the dragnet's data collection. It appears no one can be bothered to do the job right, even when entrusted with data of millions of Americans. This would be one thing if the agency was tiny and not tasked with national security. It's quite another when the agency declares that national security trumps privacy concerns and then half-asses its way through each workday. You don't need "bad faith" when you've got lousy management and zero interest in fixing the problem.

The court also notes that the surveillance programs (both the phone and internet metadata) were prone to overcollection. A few heavily-redacted paragraphs leaves just enough substance to indicate the size of the problem.

Notwithstanding this and many similar prior representations, there in fact had been systemic overcollection since [redacted]...

The government later advised that this continuous overcollection acquired metadata obtained at many other types of data" and that "[v]irtually every record" generated by this program included some data that had not been authorized for collection…

The government has provided no comprehensive explanation of how so substantial an overcollection occurred, only the conclusion [lengthy redaction]... The government has said nothing about how the systemic overcollection was permitted to continue [lengthy redaction].

However, given the duration of this problem, the oversight measures ostensibly taken since-to detect overcollection, and the extraordinary fact that NSA's end-to-end review overlooked unauthorized acquisitions that were documented in virtually every record of what was acquired, it must be added that those responsible for conducting oversight at NSA failed to do so effectively.

The conclusions are ugly but are ultimately of little consequence. The program was reinstated. There's a long discussion about the terminology being used in these court orders (along with some talk about whether a URL is "content" or "data," p. 32-33) and several fully-redacted pages presumably detailing the metadata the NSA is authorized to collect (p. 35-52). The government's discussion on what is or isn't content (according to the NSA dictionary) contains another long stretch of uninformative blackness that spans from page 57 to page 70.

When we finally arrive at the government's request to expand the authorization of its highly-modified "pen register," we get some indication of exactly how much more metadata the agency was looking to grab.

The current application, in comparison with prior dockets, seeks authority to acquire a much larger volume of metadata at a greatly expanded range of facilities," while also modifying -- and in some ways relaxing -- the rules governing the handling of metadata. In the foreseeable future, NSA does not expect to implement the full scope of the requested authorization because of processing limitations. [redacted] Response at 1. Even so, NSA projects the creation of [redacted] metadata records per day during the period of the requested order, compared with the norm under prior orders of approximately [redacted] records per day. Id. That is roughly an 11- to 24-fold increase in volume.

Despite the leap in volume and the stated misgivings about the NSA's ability to do its job properly, the court granted both the expansion and continuation of the program. The court asked for a few minimal concessions (limited to two "hops," RAS [reasonable articulable suspicion) searches only, an expiration date on stored data [180 days for Americans, one year for the rest of the world], additional reporting from the NSA), but other than that, allowed the bastardization of the pen register statute to sail through. About the only roadblock erected is the declaration that the previously unauthorized collections summarized early in the opinion were effectively off limits to NSA analysts, thanks to wording contained in the FISA Act itself.

We're still in the dark as to what specifically the NSA was authorized to collect under the heading of "metadata" in this program. The information we do have has come from Snowden's document leaks, not from the DNI's "magnanimous" compelled response to court orders. Considering so much of this info is already out in the open, you would think the ODNI would have applied the black pen a little less heavily.

What we have learned is that the FISA courts have been delivered report after report of abuse by the NSA and has, with rare exceptions, allowed the agency to continue its collections uninterrupted. The "rubber stamp" may be able to craft 100+ page opinions filled with sincere discussions of the program's merits and the NSA's seeming inability to not exceed its authority, but when it's all said and done, the court allows the collections to proceed.

Filed Under: abuse, colleen kollar-kotelly, email, john bates, metadata, nsa, section 215, stellar wind, surveillance