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Category Archives: Surveillance: NSA Warrantless Wiretapping

Clearing Up Surveillance

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Saturday, April 5, 2014 at 12:00 PM

Henry V’s claim to the throne of France is “as clear as is the summer’s sun,” explains the Archbishop of Canterbury in Shakespeare’s play.  The joke, of course, is that he has come to this conclusion following several dozen lines of impenetrably dense legal argument.  I’ve found it similarly difficult to explain intelligence surveillance law, . . .
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Three Speeches on Cybersecurity by Dan Geer

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Thursday, April 3, 2014 at 3:00 PM

Cyber security maven Dan Geer has given three speeches in the last six months that are worth a read: (a) APT in a World of Rising Interdependence, given last month at the NSA; (b) We Are All Intelligence Officers Now, given at the RSA Conference in February; and (c) Trends in Cyber Security, given at NRO last November. . . .
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Exclusive: NSA Program Can Target Thoughts of Millions of Targets, Thousands of Americans

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Tuesday, April 1, 2014 at 12:01 AM

The National Security Agency has developed the capability to mine the thought patterns of millions of people simultaneously, collection that may involve thousands of Americans, according to the latest disclosure from former NSA contractor Edward Snowden. An NSA Powerpoint slide refers to the classified program, code-named “MINDPRISM,” as “The Ultimate in Upstream Collection.” A combination . . .
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More FISC Materials Released

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Saturday, March 29, 2014 at 10:50 AM

Friday brought us three newly declassified FISC rulings.  The release was prompted by the Electronic Frontier Foundation’s FOIA action against the NSA. Interestingly, one of the documents apparently is an “updated”—according to the DNI release—version of a previously released, March 2, 2009 FISC order, which had blasted NSA for non-compliance with certain minimization rules. At . . .
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PCLOB Hearing on 702 Programs

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Wednesday, March 19, 2014 at 3:06 PM

The Privacy an Civil Liberties Oversight Board has been holding a Public Hearing on the 702 program since 8.45am this morning. Witnesses (and links to written testimony) are listed below: Panel I: Government Perspective on Section 702 Foreign Intelligence Surveillance Act James A. Baker (General Counsel, Federal Bureau of Investigation) Rajesh De (General Counsel, National . . .
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NSA Responds to ABA Letter on Attorney-Client Privilege

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Monday, March 10, 2014 at 10:10 PM

Last month, the American Bar Association wrote to General Keith Alexander to express concern over press reports that overseas snooping by U.S. allies had intercepted communications by U.S. lawyers and their clients—and that NSA had played a role. Now, General Alexander has responded. Here’s the letter.  

The Debate About the NSA Is Over

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Monday, March 3, 2014 at 11:17 AM

Well, not really.  But you know that a trend is going against the NSA when the American Bar Association offers a course entitled, “The Ethical Implications of NSA Surveillance.”  According to the the ABA: Our panel will take you through the revelations about NSA to date and outline the steps law firms can (and ethically must) take . . .
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Klayman v. Obama: Government Moves for More Time, Appellees Oppose

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Saturday, February 22, 2014 at 4:00 PM

District court proceedings in Klayman v. Obama ended with a bang back in December, with D.C. District Court Judge Richard Leon ruling that bulk metadata collection under Section 215 of the Patriot Act is unconstitutional. And it looks like the expected drama at the appellate court level has already begun. The government has asked for more time on its . . .
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Bruce Schneier on NSA v. Private Meta-Data Storage

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Friday, February 14, 2014 at 4:18 PM

In December I said this about the Presidential Review Group’s recommendation to transfer meta-data from NSA to private control: “I understand the Report’s concerns about the storage of bulk meta-data by the government.  But I do not understand the Report’s implicit assumption that the storage of bulk meta-data by private entities is an improvement from the perspective . . .
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In a World of Bad Ideas ….

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Monday, February 10, 2014 at 4:12 PM

This one is a strong competitor.  I’m trying to think of other uses for this “precedent” — no power or water for the Army (by peace activists).   Or power for Obamacare servers.  I wonder if these State legislators understand the concept of the supremacy clause.

Yeah, but What Does Jameel Jaffer Really Think?

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Wednesday, February 5, 2014 at 3:09 PM

Here’s his response, published at Just Security, to my post this morning about legal density and NSA: Over at Lawfare, Ben Wittes is making excuses for the intelligence officials who’ve been saying the NSA doesn’t spy on Americans. Ben acknowledges the statement is false—“not quite accurate,” is his rather dramatic understatement. In Ben’s view, however, those who’ve been misled . . .
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Judge Bates and a FISA “Special Advocate”

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Tuesday, February 4, 2014 at 9:24 AM

In the midst of the hubbub over the PRG and PCLOB reports and the President’s speech, one of January’s more interesting developments in the FISA reform conversation has largely gone unaddressed (albeit not unnoticed): the “Comments of the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act,” and Judge Bates’s cover letter transmitting those comments. . . .
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The NSA Meets International Law: Advantage US?

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Thursday, January 30, 2014 at 3:00 PM

While NSA critics including David Cole have asserted that the Section 702 program is inconsistent with international privacy norms, the reality is far more complex.  As I explain in a forthcoming Fordham Law Review article, European courts have upheld national security surveillance programs with striking similarities to U.S. practice.  Indeed, the FISC’s role actually makes . . .
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Snowden: What’s the Harm?

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Monday, January 27, 2014 at 4:30 PM

What harm has Edward Snowden done to his country? When Snowden asserts that the National Security Agency listens to encrypted Russian diplomatic traffic, it takes the Russians about twenty minutes to shut it down.  An operation like that can take many years to put in place.  When he explains exactly how NSA can implant devices . . .
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President Obama’s Speech and PPD-28

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Friday, January 17, 2014 at 7:30 PM

I had two reactions to President Obama’s address,  one general and another specific. First the general.  President Obama made a good speech today, both for what he said and what he didn’t say.  He has already made clear, through his policies and practices, what he wants the Executive Branch to do.  If the Congress wants . . .
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The President’s Speech: a Quick Reaction

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Friday, January 17, 2014 at 3:53 PM

The President’s speech and accompanying Policy Directive together announce all manner of changes; it will take a while to grasp them all. In the meantime, here’s an off-the-cuff reaction: I reckon we will have to wait and see how many of today’s proposals develop.  The devil is in the details, if you’ll forgive a wince-inducing . . .
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Views from the Judiciary on Possible Surveillance Reforms

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Tuesday, January 14, 2014 at 2:04 PM

Yesterday, U.S. District Judge John Bates sent over two documents—-a summary cover letter and a more detailed analysis—to the Senate Intelligence Committee.  Delivered in Bates’s capacity as the Director of the Administrative Office of the U.S. Courts, and derived from both his past service as the FISC’s Presiding Judge, and discussions with other current and . . .
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A Modest Proposal for NSA Data Collection

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Thursday, January 9, 2014 at 10:04 PM

I have a suggestion for solving nearly all of NSA’s problems: A click-through agreement. A peculiarity of the NSA data collection controversy is that the US public, we are told, is outraged by NSA activities, including the collection of “metadata,” on the one hand, while that same public appears quite willing to share much of . . .
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Part II: Observations on Selected Surveillance Review Group Themes

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Thursday, January 2, 2014 at 12:00 PM

Part

A Three-Post Reaction to the Surveillance Review Group Report

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Wednesday, January 1, 2014 at 12:00 PM

Over the past week and a half, writers on this site have provided comprehensive and detailed summaries of the surveillance review group report, along with some observations and assessments, as well as sharper critiques. Today, Lawfare is running the first of three posts summarizing my reaction to and observations about various aspects of the report. The first post, . . .
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