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Category Archives: FISA

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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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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FISCR: Stay Tuned for Declassified Version of 2008 Directives Opinion

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Thursday, September 11, 2014 at 2:57 PM

The Foreign Intelligence Court of Review (“FISCR”) issued this order today. It concerns the FISC’s 2008 opinion in In Re Directives, an appeal brought by Yahoo! and regarding directives for warrantless electronic surveillance of some of the company’s customers.  In a heavily classified ruling, the appeals court had affirmed a Foreign Intelligence Surveillance Court (“FISC”) order requiring . . .
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Regulating Foreign Surveillance Through International Law

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Monday, September 8, 2014 at 1:45 PM

This Friday, the U.N. Human Rights Council will hold a session to discuss the right to privacy in the digital age. The Council is considering these issues in the wake of a General Assembly Resolution adopted in December (which affirmed that the same rights that people have offline must also be protected online) and a report . . .
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DOJ AND ODNI Support Leahy NSA Reform Bill

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Thursday, September 4, 2014 at 4:36 PM

It looks like it’s time for Lawfare to update an old post of ours, “Who is Saying What about the Leahy Surveillance Bill.” On September 2, Attorney General Eric Holder and Director of National Intelligence James Clapper sent a letter to Senator Patrick Leahy endorsing the Senator’s version of the USA FREEDOM Act.  Key passages are . . .
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Thoughts on the CA2 Argument on Section 215 in ACLU v. Clapper

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Tuesday, September 2, 2014 at 5:09 PM

I just finished watching the video of the Second Circuit’s argument in ACLU v. Clapper, the challenge to Section 215.  Here are a few impressions. While I don’t have a strong sense of how the court will rule, there was a lot of attention to the statutory question (does Section 215 authorize bulk collection?) and relatively . . .
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Video of CA2 Argument In Section 215 Case Posted

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Tuesday, September 2, 2014 at 1:55 PM

You can watch the video of the argument in ACLU v. Clapper here. The argument goes almost two hours. C-SPAN did a nice job with the video, so it’s a pleasure to watch. I hope to have some thoughts on the substance later today.

The Second Circuit Hears Oral Argument This Week in Challenge to Section 215 Surveillance

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Monday, September 1, 2014 at 4:14 PM

On Tuesday, the Second Circuit will hear oral argument in ACLU v. Clapper, one of the cases challenging the Section 215 bulk telephony metadata program. The Second Circuit is reviewing Judge Pauley’s decision upholding the program. You can read all the briefs in the case here. This will be the first federal appellate argument on . . .
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The Latest FISC Opinion: A Summary

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Friday, August 29, 2014 at 8:31 AM

On February 19, 2013, the Foreign Intelligence Surveillance Court granted an order for the production of certain tangible things, applied for by the FBI pursuant to 50 U.S.C. § 1861, and issued an opinion explaining its decision to grant the order. A key issue with the order is whether the investigation to which it relates . . .
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Newly Declassified FISC Surveillance Order

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Thursday, August 28, 2014 at 4:20 PM

The Foreign Intelligence Surveillance Court has released a heavily redacted opinion issued on February 19, 2013. The opinion applies Section 1861 of Title 50. We will have a summary.

DOJ Releases 2 New Documents Regarding NSA’s Email Metadata Collection

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Friday, August 22, 2014 at 4:39 PM

There are two new NSA email metadata collection program documents on the DNI’s Tumblr site, IContheRecord. From the site: Following a declassification review by the Executive Branch, the Department of Justice released on August 6, 2014, in redacted form, 38 documents relating to the now-discontinued NSA program to collect bulk electronic communications metadata pursuant to . . .
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Amicus Briefs Filed in Support of Appellees in Klayman v. Obama

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Thursday, August 21, 2014 at 1:00 PM

Yesterday two amicus briefs were filed on behalf of the appellees in Klayman v. Obama, the bulk metadata case up on appeal in the D.C. Circuit. The brief challenges the lawfulness of NSA’s collection of Americans’ telephony metadata on constitutional and statutory grounds, respectively. (1) Amicus brief of the Electronic Frontier Foundation, American Civil Liberties Union (ACLU), . . .
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The Internet Metadata Memo: A Summary

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Monday, August 18, 2014 at 11:45 AM

There is much to pore over in last week’s release by the Director National Intelligence. Responding to FOIA litigation, the DNI’s office posted more than thirty legal filings and related documents bearing on NSA’s historical, bulk collection of certain internet metadata—the addressing, routing, and header information in e-mails. Some of this stuff is old, including the . . .
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DOJ Releases 38 Redacted Documents Regarding NSA’s Email Metadata Collection

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Monday, August 11, 2014 at 10:40 PM

New on the DNI’s Tumblr site, IC on the Record: on August 6, and in response to a FOIA request, the Department of Justice released a slew of newly declassified, redacted documents related to the National Security Agency (NSA)’s bulk collection of electronic communications metadata.  Such collection, though now discontinued, was conducted pursuant to  Section 402 . . .
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Judge John Bates for the AO on Leahy Surveillance Bill

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Wednesday, August 6, 2014 at 8:47 PM

Over at the Wall Street Journal, Siobhan Gorman is reporting on a new letter from the Administrative Office of the U.S. Courts on Sen. Leahy’s FISA reform legislation. Signed by U.S. District Judge John Bates, the AO’s director and former presiding judge of the FISA Court, the letter pulls few punches on the the public advocate provisions . . .
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A Concluding Thought on Justiciability and Appellate Review in the Leahy Bill

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Tuesday, August 5, 2014 at 2:23 PM

For the (two?) readers who are following the exchange between Steve and me on Article III and appellate review in the Leahy bill, I wanted to offer two responses to Steve’s latest post. The first response is about the prudential limits on justiciability, and the second is about Article III.

The FISA Court and Article III: A Surreply to Orin

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Tuesday, August 5, 2014 at 9:31 AM

As I suspected it would, the exchange between my friend Orin Kerr and me on the constitutionality of the appellate review provisions in the Senate version of the USA FREEDOM Act has morphed into a broader conversation about whether the FISA Court itself is consistent with Article III. Consider the three major points of Orin’s reply to . . .
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