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Category Archives: FISA

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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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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