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Category Archives: Surveillance

Readings: Henry Farrell on Critics of Snowden and Greenwald

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Tuesday, October 28, 2014 at 8:11 PM

Some time back, Ben noted two stern critiques of Edward Snowden and Glenn Greenwald—one by Sean Wilentz and another by George Packer. The latter reviewed Greenwald’s book, No Place to Hide; ditto Michael Kinsley, in an article Jack mentioned (and disagreed with) here on Lawfare.   In a piece in the National Interest, Henry Farrell takes on . . .
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Feds Identify Suspected “Second Leaker”

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Monday, October 27, 2014 at 3:51 PM

That’s the headline from Michael Iskikoff at Yahoo! News reporting that the FBI has identified the suspected so-called “second leaker.” The story begins: The FBI has identified an employee of a federal contracting firm suspected of being the so-called second leaker who turned over sensitive documents about the U.S. government’s terrorist watch list to a journalist closely . . .
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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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U.N. Special Rapporteur Report on Mass Digital Surveillance and Article 17 of the ICCPR

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Wednesday, October 15, 2014 at 10:30 AM

Here it is, via First Look. The latest from the U.N. Special Rapporteur for the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Ben Emmerson QC, concludes as follows (note the language in paragraph 59): 58. States’ obligations under article 17 of the International Covenant on Civil and Political Rights include the . . .
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Oral Argument Tomorrow in Under Seal v. Holder

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Tuesday, October 7, 2014 at 10:23 PM

Speaking of National Security Letter (NSL) challenges: tomorrow morning Judges Ikuta, N. Randy Smith and Murguia of the Ninth Circuit will hear oral argument in In re National Security Letter, Under Seal v. Holder. These cases are sealed, but the Court has ordered the disclosure of party briefs and other documents, available here. [Just a note: Nos. . . .
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Hong Kong Protesters Are Organizing Without Using the Internet

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Tuesday, September 30, 2014 at 3:09 PM

You read that right: Hong Kongers have found an app that allows users to communicate without using the Internet or mobile signals. Specifically, the Firechat app utilizes Bluetooth technology to allow users to send and receive messages. Protestors favor this medium because of rampant censorship of the Internet as well as rumors that the Hong Kong government might shut . . .
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The 2014 National Intelligence Strategy Roadmap

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Tuesday, September 30, 2014 at 11:52 AM

The Office of the Director of National Intelligence recently released its 2014 Strategy Roadmap, which can be found here. From the ODNI press release: Director of National Intelligence James R. Clapper unveiled last week the 2014 National Intelligence Strategy – the blueprint that will drive the priorities for the nation’s 17 intelligence community (IC) components over the . . .
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Securing Phones – and Securing US

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Monday, September 29, 2014 at 10:00 AM

Apple has encrypted its iPhone6 for real, that is, removing the backdoor for government warrants. The FBI is erupting, claiming that that this will create problems for law enforcement, raising the specter of not being able to investigate terrorist activities, solve murder cases, and arrest child pornographers. In fact, Apple’s decision to remove the backdoor on . . .
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Readings: An International Legal Framework for Surveillance, a New Article by Ashley Deeks

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Friday, September 26, 2014 at 7:44 AM

Lawfare’s own Ashley Deeks (University of Virginia School of Law) has released a new article, “An International Legal Framework for Surveillance,” available on SSRN and forthcoming in the Virginia Journal of International Law (Vol. 55, 2015).  The article unsurprisingly has been receiving considerable attention since its release on SSRN, and I wanted to be sure . . .
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Government Files Reply in Klayman v. Obama, ACLU Moves to Participate in Oral Argument

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Tuesday, September 23, 2014 at 9:20 AM

On Friday the government filed its response and reply brief in Klayman v. Obama, (1) arguing that the Judge Richard Leon erred in granting plaintiff-appellee-cross-appellants a preliminary injunction against Section 215 bulk telephony-metadata collection and (2) countering Klayman et al.’s cross-appeal for additional preliminary injunctive relief against government programs that involve “internet data surveillance activity.” Most of . . .
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Breaking News: Government Agency Bulk Collecting Twitter Data

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Friday, September 19, 2014 at 10:06 AM

I was at the National Security Agency yesterday giving a Constitution Day speech and I learned details of a shocking collection program: The government is bulk collecting all traffic on Twitter. Under a program menacingly called “Bulk Data in Social Media” and abbreviated—appropriately enough—as BDSM, Twitter has been providing all public traffic since 2010 for 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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Motions to Televise Oral Argument in Klayman v. Obama

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Tuesday, September 16, 2014 at 8:38 AM

Last week appellees in Klayman v. Obama filed a motion for the court’s leave to televise the oral argument, scheduled for November 4, 2014. The D.C. Circuit denied that motion yesterday, prompting appellees to immediately file a substantially similar motion for rehearing en banc. The seven-page motion for an en banc rehearing regarding the decision begins and ends . . .
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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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The Legal Justifications For Domestic Surveillance: A Summary

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Thursday, September 11, 2014 at 7:00 PM

Late last week, the Department of Justice released two memos authored by Lawfare‘s own Jack Goldsmith back when he was the head of the Office of Legal Counsel (“OLC”) in the Bush Administration. The memos provide the most comprehensive legal analysis to date of the surveillance program codenamed STELLAR WIND, which President Bush initiated in October 2001 to intercept terrorist communications within . . .
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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 Declassifies Memos On Domestic Surveillance Program

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Sunday, September 7, 2014 at 8:36 AM

The Department of Justice recently released two Office of Legal Counsel opinions by Lawfare‘s own Jack Goldsmith from 2004. The first memo provides a lengthy and at times heavily-redacted justification for the National Security Agency’s STELLAR WIND program—a suite of domestic surveillance authorities that began in the Bush administration. The second, much shorter memo analyzes the implications of the Supreme Court’s ruling in Hamdi . . .
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Cyborgs! Law and Policy Implications

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Friday, September 5, 2014 at 10:27 AM

And now for something completely different: Cyborgs. No, this is not a joke. For years, certain technology enthusiasts have floated variations on the question of whether we are becoming cyborgs—or already are cyborgs. In our newly released paper, titled “Our Cyborg Future: Law and Policy Implications,” we take a different, more legal angle. The law remains embryonic on . . .
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