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Category Archives: FISA

The 2014 Cato Institute Surveillance Conference

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Tuesday, December 16, 2014 at 8:00 PM

Last Friday, the Cato Institute held an all-day conference to explore the questions raised by the growth of government surveillance, the revelations of NSA activities by Edward Snowden, and how these newly disclosed technologies should be regulated by the Fourth Amendment and federal law. Ben took part in the conversation on the second panel, which included Charlie . . .
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DOJ releases six FISC documents on StellarWind

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Monday, December 15, 2014 at 6:44 PM

The Department of Justice has released six Foreign Intelligence Surveillance Court (FISC) documents related to the surveillance activities originally initiated by President George W. Bush following the attacks of September 11, 2001—including the so-called “StellarWind” program. As reported by Charlie Savage of the New York Times, the documents shed new light on the legal debate . . .
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Over 700 Million People Taking Steps to Avoid NSA Surveillance

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Monday, December 15, 2014 at 9:02 AM

There’s a new international survey on Internet security and trust, of “23,376 Internet users in 24 countries,” including “Australia, Brazil, Canada, China, Egypt, France, Germany, Great Britain, Hong Kong, India, Indonesia, Italy, Japan, Kenya, Mexico, Nigeria, Pakistan, Poland, South Africa, South Korea, Sweden, Tunisia, Turkey and the United States.” Amongst the findings, 60% of Internet . . .
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Lawfare Podcast, Episode #103: Mieke Eoyang on FAA Exclusivity

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Saturday, December 13, 2014 at 1:55 PM

A few weeks ago, Mieke Eoyang wrote and post on Lawfare entitled “A Modest Proposal: FAA Exclusivity for Collection Involving U.S. Technology Companies.” Mieke is a long-time congressional staffer on national security matters, who served a stint on the House Intelligence Committee during the drafting of the FISA Amendments Act (FAA) and now runs national security . . .
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DNI: FISC Reauthorizes Telephony Metadata Collection for 90 Days

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Monday, December 8, 2014 at 9:19 PM

Today, Director of National Intelligence (DNI) James R. Clapper declassified the fact that the government filed an application with the Foreign Intelligence Surveillance Court (FISC) to extend the National Security Agency’s telephony metadata collection program by ninety days. The FISC signed off on the request. In March, President Obama had announced his intention to secure . . .
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Smith v. Obama Oral Argument

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Monday, December 8, 2014 at 11:57 AM

The United States Court of Appeals for the Ninth Circuit has live-streaming video of this morning’s oral argument, in a challenge to the NSA’s call records program. The live stream will get underway at 9:00 a.m. PST.  [Update: Smith is but one of six cases set before argument today before Circuit Judges Michael Hawkins, Margaret McKeown and Richard . . .
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A Quick Summary of Oral Argument in In Re Directives

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Monday, November 24, 2014 at 4:30 PM

Earlier this Fall I wrote about how certain materials from the In Re Directives litigation before the Foreign Intelligence Surveillance Court of Review (“FISCR” or “Court”) had been declassified. Last Monday, the Office of the Director of National Intelligence released the transcript from oral argument in the FISCR case, which was held on June 19, . . .
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ODNI Releases Transcript from 2008 Protect America Act Litigation

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Wednesday, November 19, 2014 at 1:41 PM

On Monday, the Office of the Director of National Intelligence published a declassified oral argument transcript from critically important 2008 proceedings before the Foreign Intelligence Surveillance Court of Review (“FISCR”). As readers well know, the issue in In Re: Directives  was, naturally enough, a directive issued to Yahoo! under the Protect America Act of 2007.  The case . . .
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Appellees File Supplemental Brief in Klayman v. Obama

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Monday, November 10, 2014 at 5:55 PM

A few days after oral argument before a three-judge panel of the D.C. Circuit last week, Larry Klayman and company filed a supplemental brief, citing a desire to more fully address questions as to how their Fourth Amendment rights were being violated in light of the government’s contention that it had not accessed their calls for reasons beyond . . .
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ODNI Releases FISC Primary Order Pertaining to Telephony Metadata

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Monday, November 10, 2014 at 3:34 PM

On Thursday, the Office of the Director of National Intelligence released the latest declassified Foreign Intelligence Surveillance Court (FISC) Primary Order on its website. The Primary Order, issued by Judge Raymond J. Dearie on September 11, 2014, gives the government authority to collect telephony metadata until December 5. The ODNI had announced publicly on September . . .
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Final Version, A Rule of Lenity for National Security Surveillance Law

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Monday, November 10, 2014 at 2:06 PM

The final version of my article, A Rule of Lenity for National Security Surveillance Law, has been posted online at the Virginia Law Review website.   The article advocates a new approach to FISA reform: A rule of narrow judicial construction of national security surveillance powers, to be enacted by express Congressional enactment.   I first elaborated . . .
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Recap of Yesterday’s Argument in the Section 215 Case

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Wednesday, November 5, 2014 at 12:27 PM

Below you’ll find a recap of yesterday morning’s argument in Klayman v. Obama. A three-judge panel of the D.C. Circuit yesterday considered a key challenge to the NSA’s bulk collection from telephone companies of subscribers’ call detail records, pursuant to Section 215 of the USA PATRIOT ACT. Earlier, U.S. District Judge Richard Leon concluded that the . . .
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Toward a Different Kind of Transparency

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Wednesday, October 29, 2014 at 3:15 PM

Over the last year and a half, the intelligence community has released a significant amount of previously classified material in an effort to be more transparent regarding matters pertaining to foreign intelligence surveillance activities, generally, and the use of the Foreign Intelligence Surveillance Act (FISA) in particular. “Significant” is an understatement; the releases represent a . . .
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DNI Releases Update on PPD-28 Implementation

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Wednesday, October 22, 2014 at 6:57 PM

On Friday, the Director of National Intelligence (DNI) released an update on the implementation of Presidential Policy Directive/PPD-28, regarding signals intelligence activities. Issued on January 17 by President Obama, PPD-28 “directs intelligence agencies to review and update their policies and processes … to safeguard personal information collected through signals intelligence.”  (In January, Ben unpacked both the . . .
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Charging Snowden With…Murder? Really?

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Wednesday, October 22, 2014 at 12:57 PM

Offered without (or only a little) further comment: this piece from The Hill, and a rather eyebrow-raising quotation therein from House Intelligence Committee Chairman Mike Rogers regarding Edward Snowden: The former government contractor who leaked details about secret programs of the National Security Agency (NSA) and its British counterpart is a “traitor,” Chairman Mike Rogers (R-Mich.) told members of . . .
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Sweeping Claims and Casual Legal Analysis in the Latest U.N. Mass Surveillance Report

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Monday, October 20, 2014 at 4:11 PM

U.N. Special Rapporteur Ben Emmerson’s report on “mass surveillance” may signal increasing conflict between the US and world bodies on surveillance issues.  The Emmerson report makes sweeping normative claims but fails to ground those claims in an accurate description of the US surveillance program.  The report claims, for example, that a state must impose the . . .
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CDT Event this Evening on “Databuse”

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Tuesday, October 14, 2014 at 2:55 PM

This will be an interesting event this evening. The Center for Democracy and Technology is holding a discussion of a paper Wells and I recently published entitled, “Databuse and a Trusteeship Model of Consumer Protection in the Big Data Era.” CDT is describing the event as follows: Please join the Center for Democracy & Technology . . .
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Twitter Files Lawsuit Against Justice Department, FBI

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Wednesday, October 8, 2014 at 9:23 PM

Twitter filed suit yesterday against Attorney General Eric Holder, the Department of Justice, Federal Bureau of Investigation Director James Comey, and the FBI in the District Court for the Northern District of California. You can read the company’s announcement on their website, and a copy of the complaint is available here. The latter is—forgive the e-humor—a . . .
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Updated Version of In Re Directives: A Quick Summary

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Tuesday, September 16, 2014 at 4:30 PM

Readers likely recall that last week, documents from the In Re Directives litigation, regarding foreign intelligence surveillance directives issued to Yahoo!, were declassified. Chief among them: a new version of the Foreign Intelligence Surveillance Court of Review’s (“FISCR” or the “Court”) 2008 ruling, one less redacted than previous versions released to the public. Then-Chief Judge . . .
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In Re Directives Documents Released

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Thursday, September 11, 2014 at 8:48 PM

As we noted earlier today, documents bearing on the In Re Directives litigation have now been declassified. The voluminous materials—including briefs and an apparently less redacted version of the Foreign Intelligence Surveillance Court of Review’s 2008 opinion—indeed can now be found at the DNI’s Tumblr site, and below. We’ll likely have more to say on this; stay . . .
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