Skip to content

Category Archives: FISA

Senator Leahy Unveils New USA Freedom Act

By
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

By
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 . . .
Read more »

On “Going Dark”

By
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 . . .
Read more »

USG Files Opening Brief in Klayman Appeal

By
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, . . .
Read more »

DOJ Releases Three Redacted FISC Telephone Metadata Orders

By
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 . . .
Read more »

DNI and DOJ on Today’s Intercept Story

By
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 . . .
Read more »

The PCLOB on Human Rights & 702: Punt or Long Game?

By
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 . . .
Read more »

Pre-Release PCLOB Report on Section 702 of FISA

By
Tuesday, July 1, 2014 at 9:29 PM

Here is a “pre-release” version of the report; the PCLOB will adopt a final version at its meeting tomorrow morning.  It therefore has offered the still-not-yet-official document to the press and public, now, “so as to preview the Board’s findings and recommendations.” The main report’s executive summary overviews the Board’s legal and policy analysis, as well as its policy recommendations.  The . . .
Read more »

Privacy and Civil Liberties Board to Issue 702 Report on . . . 7/02

By
Tuesday, July 1, 2014 at 4:29 PM

Get it? Actually, I don’t think they did either. It’s a cute coincidence. But at any rate, the PCLOB has announced that it will be releasing its report on FISA 702 collection this evening at 9:00 pm: The Board’s report will contain a detailed analysis of the Section 702 program, with a focus on increasing transparency . . .
Read more »

Section 702-Based Relief Denied in United States v. Mohamud

By
Thursday, June 26, 2014 at 1:28 PM

Mohamed Osman Mohamud, a Somali-born American citizen, was convicted in January of last year of attempting to detonate a weapon of mass destruction after he tried to set off what he thought was a car bomb in a crowded Portland square. The bomb was in fact a fake supplied to the 19-year-old by federal agents as part of a sting . . .
Read more »

A Failure of Protocol

By
Wednesday, June 25, 2014 at 7:48 PM

The Supreme Court’s decision requiring a warrant for searches of cell phones incident to arrest affirms that we are entitled to privacy in the digital age.  These expectations, the Chief Justice explains, are entirely reasonable.  “Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception.”  . . .
Read more »

An Editor’s Note

By
Wednesday, June 25, 2014 at 11:06 AM

Earlier this morning, we featured a post regarding key developments in the Mohamud criminal case in Oregon.  Because of an Editor’s error, and not because of any error by its author, the post incorrectly characterized a March discovery ruling in Mohamud as having issued yesterday, and summarized that ruling; but did not address a ruling that was handed . . .
Read more »

Two Quite Important Rulings Today

By
Tuesday, June 24, 2014 at 5:00 PM

Coincidentally, they come to us from two different federal judges in the District of Oregon. The first decision concludes that remedial mechanisms associated with the so-called “No Fly” list violate due process;  the second rejects a defendant’s post-conviction effort to have an indictment thrown out—and, among other things, in doing so also rejects a constitutional attack on Section . . .
Read more »

A Few Additional Thoughts on Daoud

By
Tuesday, June 17, 2014 at 8:52 AM

I largely agree with Steve Vladeck’s excellent post on Judge Richard Posner’s decision yesterday in Daoud and Judge Ilana Rovner’s concurrence in that decision. In particular, I agree that Judge Posner’s language is too glib, his dismissal of the defense’s conundrum in cases—in which lack of access to the underlying FISA application frustrates a Franks motion—too cheerful, . . .
Read more »

Judge Posner v. Judge Rovner: On Daoud, FISA, and Franks

By
Tuesday, June 17, 2014 at 7:56 AM

Paul already flagged yesterday’s Seventh Circuit decision in Daoud, in which the Court of Appeals reversed Judge Coleman’s headline-grabbing order—which had required the government to provide Daoud’s security-cleared defense counsel with access to all of the classified materials the government had submitted in support of its applications for FISA warrants in Daoud’s case. I have . . .
Read more »

7th Circuit Rejects Foreign Surveillance Disclosure Order

By
Monday, June 16, 2014 at 4:28 PM

The case is US v. Daoud.  The district court had ordered disclosure of certain FISA materials that were classified to defense counsel.  The 7th Circuit, per Judge Posner, reversed.  The money quote: The judge appears to have believed that adversary procedure is always essential to resolve contested issues of fact. That is an incomplete description . . .
Read more »

Video of Today’s SSCI Hearing

By
Thursday, June 5, 2014 at 8:23 PM

I haven’t watched it yet, as I was doing a different event at the time of the hearing. But thanks to the magic of CSPAN and it’s belated, but very welcome propensity for embed codes . . .

SSCI Open Hearing on the USA Freedom Act

By
Thursday, June 5, 2014 at 11:40 AM

The hearing on FISA reforms will get going today at 2:30 p.m, and (as always) be broadcasted live via C-SPAN.  The witness line-up is below with links to written statements. First Panel (Government): James M. Cole Deputy Attorney General U.S. Department of Justice Richard H. Ledgett Deputy Director National Security Agency Mark F. Giuliano Deputy Director Federal . . .
Read more »

Latest District Court Ruling on NSA Surveillance

By
Tuesday, June 3, 2014 at 6:19 PM

Today’s ruling in Smith v. Obama grants the government’s motion to dismiss, and thus bats away a Fourth Amendment-based challenge to NSA telephone metadata collection—for the reasons one would expect.  Still, there’s a hint of reluctance in the opinion; its concluding language, to my eye, reads more like an acknowledgment of the district court’s institutional position than . . .
Read more »

So What’s in that FISA Reform Bill Anyway?

By
Wednesday, May 21, 2014 at 3:03 PM

Over at the New York Times, Charlie Savage has a good story about civil libertarian irritation over the latest version of the “USA FREEDOM Act,” H.R. 3361—which he has also posted. As this seems likely to be the version on which the House of Representatives actually votes, and it reflects input from both the intelligence . . .
Read more »