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Category Archives: Surveillance: NSA Warrantless Wiretapping

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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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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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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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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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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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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An Editor’s Note

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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 . . .
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Two Quite Important Rulings Today

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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 . . .
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The Vodafone Transparency Report

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Friday, June 6, 2014 at 7:07 PM

I’m sure that I and others will have more to say about this in the future, but in the meantime, here is the summary and 88-page Vodafone transparency report  that has been widely reported this morning. As I mentioned in my remarks in the debate Ben hosted at Brookings yesterday, the U.S. technology and communications industry . . .
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Snowden Correspondence with NSA OGC [UPDATED]

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Thursday, May 29, 2014 at 3:45 PM

The ODNI Tumblr site today posted April 2013 e-mail correspondence between Edward Snowden and the NSA’s Office of General Counsel—the only such correspondence NSA says it has found. UPDATE [9:30 p.m.]: Snowden has responded to the release this evening—in a Washington Post interview—and called the release “incomplete.”  See below the fold.     The reason for the release is obvious: debate . . .
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The National Security Agency at the Crossroads: Audio of Sessions

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Thursday, April 10, 2014 at 10:00 AM

The following is audio of the conference last week in Austin hosted by the Intelligence Studies Project, a joint venture of the Strauss Center and Clements Center at the University of Texas at Austin. The conference was entitled, “The National Security Agency at the Crossroads.” It was a highly-unusual direct engagement of a number of . . .
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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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