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Category Archives: FISA

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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More on Article III and Appellate Review in the Leahy Bill

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Tuesday, August 5, 2014 at 3:20 AM

My friend Steve Vladeck has graciously responded to my post on the Article III problems I see with appellate review in the Leahy bill. I wanted to return to the issue one more time to sharpen the discussion on my end and to clarify where we disagree. Here’s a hypothetical to frame the question. Let’s . . .
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Article III, Appellate Review, and the Leahy Bill: A Response to Orin Kerr

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Thursday, July 31, 2014 at 10:54 AM

Orin’s post from yesterday afternoon wonders whether the Leahy bill’s provision for “certification” of decisions by the FISA Court to the FISA Court of Review (and from there to the Supreme Court) violates Article III’s case-or-controversy requirement. In effect, Orin’s charge is that, at the point of certification, the FISA Court is (or, at least, could . . .
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Yeah, But Is It a Good Bill? Thoughts on the Leahy FISA Reform Proposal

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Wednesday, July 30, 2014 at 10:46 PM

Yesterday evening, Jodie Liu and I summarized Sen. Leahy’s new FISA reform bill—which represents a legislative compromise between many of the major stakeholders in the NSA debate. One question we did not treat is whether the bill is any good. Short answer: In my opinion, at least, it’s mix—a proposal that will do some good but . . .
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Article III Problems with Appellate Review in the Leahy Bill?

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Wednesday, July 30, 2014 at 4:26 PM

I haven’t waded much into the details of the various FISA reform proposals, but I find myself puzzled by the appellate review mechanism in the new Leahy bill on FISA reform. In particular, I’m not sure the constitution allows Congress to tee up legal questions to the Court of Review and Supreme Court based on . . .
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Who Is Saying What About the Leahy Surveillance Bill

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Wednesday, July 30, 2014 at 2:00 PM

Below you’ll find a compilation of public statements on Senator Patrick Leahy’s new and improved USA Freedom Act, which he unveiled yesterday. Suffice it to say:  the reviews are generally positive, give or take some rather qualified, less committal remarks from the Chairs of the Senate and House Intelligence Committees. Administration Ned Price, Spokesman for the . . .
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Senator Leahy’s NSA Reform Bill: A Quick and Dirty Summary

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Tuesday, July 29, 2014 at 7:21 PM

As Wells reported this morning, Senate Judiciary Committee Chairman Patrick Leahy unveiled his version of the NSA reform bill today. Leahy’s bill is important because, well, it’s not just Leahy’s bill. It’s the bill. It represents a compromise between the intelligence community, the administration more generally, civil liberties groups, industry, and fairly wide range of . . .
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Senator Leahy Unveils New USA Freedom Act

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Tuesday, July 29, 2014 at 11:48 AM

Here is Senator Patrick Leahy’s (D-Vt.) proposal to restrict various forms of surveillance–which he is discussing, at this hour, on the Senate floor.  We hope to post some analysis of the bill shortly.

Senators Express Concern on 702 Interpretation

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Sunday, July 27, 2014 at 3:43 PM

Ellen Nakashima at the Washington Post reports that four U.S. Senators—Jon Tester, Jeff Merkley, Mark Begich, and John Walsh—wrote a July 24th letter to DNI Clapper expressing their concerns with NSA’s interpretation of Section 702 of the FISA Amendments Act of 2008. They pull heavily from the PCLOB report released earlier this month, in which the Board observed that . . .
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On “Going Dark”

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Saturday, July 26, 2014 at 4:00 PM

Today’s Washington Post piece by Ellen Nakashima speaks of “going dark”—or the “growing gap between the government’s legal authority and its practical ability to capture communications.”  The article highlights what is, in my assessment, the most significant long-term consequence of the Snowden disclosures: the increasingly adversarial relationship between the government and the private sector. What follows is . . .
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USG Files Opening Brief in Klayman Appeal

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Tuesday, July 15, 2014 at 10:00 AM

Yesterday the government filed its opening brief in Klayman v. Obama, in a bid to overturn D.C. District Court Judge Richard J. Leon’s December 16 ruling requiring the government to cease collecting, and to destroy, any Section 215 metadata associated with plaintiffs Larry Klayman and Charles Strange. By way of background: last year, the district court consolidated two putative, . . .
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DOJ Releases Three Redacted FISC Telephone Metadata Orders

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Wednesday, July 9, 2014 at 6:12 PM

From the Office of the Director of National Intelligence’s Tumblr site, we learn today that on Tuesday, the Department of Justice released three redacted primary orders of the Foreign Intelligence Surveillance Court (“FISC”) from 2009—all three authorizing collection, from telecommunications companies, of telephony metadata under 50 U.S.C. 1861. Here are the orders: FISC Docket Number BR . . .
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DNI and DOJ on Today’s Intercept Story

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Wednesday, July 9, 2014 at 9:43 AM

The Office of the Director of National Intelligence and the Justice Department together said this today, apparently in response to an earlier Intercept story on FBI and NSA surveillance of Muslim Americans:  It is entirely false that U.S. intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize . . .
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The PCLOB on Human Rights & 702: Punt or Long Game?

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Thursday, July 3, 2014 at 10:15 AM

One of the most eagerly awaited aspects of the Privacy and Civil Liberties Oversight Board (“PCLOB”) report on section 702 surveillance was how the PCLOB would treat human rights issues.  In January, 2014, President Obama issued PPD-28, acknowledging that individuals all over the world had privacy interests in data collected by the NSA.  Would the . . .
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