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Foreign Intelligence Surveillance Act: 2013 Leaks and Declassifications

Tuesday, October 1, 2013 at 4:13 PM

Wikis > Foreign Intelligence Surveillance Act: 2013 Leaks and Declassifications


In the aftermath of unauthorized disclosures by Edward Snowden in the summer of 2013, Director of National Intelligence James R. Clapper authorized the declassification major caches of documents to respond to Freedom of Information Act lawsuits. These documents relate to the Intelligence Community’s activities conducted under the authority of the Foreign Intelligence Surveillance Act (FISA) and include several oversight opinions of the Foreign Intelligence Surveillance Court (FISC).

DNI Clapper explained August 20, 2013:

In Congress and across the nation, Americans are engaged in a discussion about the value and appropriateness of the foreign surveillance authorities granted to the Intelligence Community. The discussion will ultimately lead us, as a nation, to make decisions about the future of some foreign surveillance-related laws and practices.

As we make those decisions, it is imperative that we do so with a full understanding of what the existing foreign surveillance authorities allow, what the oversight mechanisms are, and most important of all how they contribute to our safety and security.

Timeline of FISA Leaks and Declassifications

June 5, 2013

Glenn Greenwald publishes in the Guardian a classified document obtained by NSA contractor Edward Snowden. The document is a court order issued by the Foreign Intelligence Surveillance Court (FISC) ordering Verizon to provide telephony metadata to NSA under the authority of Section 215 of the USA PATRIOT Act.

June 6, 2013

Further disclosures by Snowden to the Washington Post reveal the existence of a system named PRISM, which is used for querying the collections of internet communications obtained under Section 702 of the Foreign Intelligence Surveillance Act. Notably, the program operates by taking data directly from many of the largest U.S. technology companies.

White House Deputy Principal Press Secretary Josh Earnest addresses the recent disclosures. He describes the collection programs as critical to the national security and explains that extensive oversight mechanisms exist to ensure the legality of the programs. Although the disclosures were unauthorized, Earnest states that the President ʺwelcomes a discussion of the tradeoffs between security and civil liberties.ʺ Furthermore, he claims the programs have been in place for ʺyearsʺ and that in December 2009 and February 2011, a document describing the classified details of 215 collection was provided to the SSCI and HPSCI to be made available to all members of the House and Senate.

DNI Clapper issues a short statement entitled “Activities Authorized Under Section 702 of FISA.”

Later the same day Clapper releases another statement describing further facts about the metadata collection programs and its associated “robust legal regime.”

NPR releases a letter from the Department of Justice dated October 19, 2011 responding to inquiries by Senators Wyden and Udall and describing the government’s collection authority under Section 215 of the USA PATRIOT Act.

Senators Feinstein and Chambliss of the Senate Select Committee on Intelligence issue a joint statement affirming the legality of the collection. They claim that information on the programs has been ʺbriefed extensively to the Senate and House Intelligence and Judiciary Committees, and detailed information has been made available to all members of Congress prior to each congressional reauthorization of this law.ʺ They also state that metadata collection does not include content or names of customers.

Heads of the House Permanent Select Committee on Intelligence defend the collection programs, stating that both their committee and the FISC have ongoing oversight of the programs. They note that the programs themselves have been used as a successful counterterrorism tool and that the collection programs do not ʺallow the government to eavesdrop on the phone calls of the American people.ʺ

Rep. Sensenbrenner writes a letter to Attorney General Eric Holder questioning the scale of the executive branch’s “bulk” acquisition of business records pursuant to Section 215.

June 7, 2013

President Obama addresses the unauthorized disclosures and defends the programs as limited and necessary to protecting the national security. He stresses that all members of Congress have been ʺconsistently informed on exactly what we are doing.ʺ He also reassures Americans that the collection of metadata does not include the content of their phone calls and that to obtain any content, investigators must obtain a warrant by a federal judge. Additionally, he ʺwelcomesʺ a debate on ʺstriking a balanceʺ between security and privacy, but that the American people must understand that there are ʺtradeoffs involved.ʺ

June 8, 2013

The DNI releases a fact sheet that PRISM is a internal computer system, not a program for collection. Clapper also emphasizes that 702 is used only for foreign intelligence collection, and therefore it cannot be used to collect solely domestic communications. Lastly, he describes the trilateral oversight by judicial, legislative, and executive branches.

In a short letter, DNI James Clapper expresses frustration that recent ʺreckless disclosuresʺ have amounted to giving adversaries of the US a ʺplaybookʺ of our capabilities. Furthermore, Clapper claims that the lack of ʺfull contextʺ in the press has given rise to false perceptions of the collection programs.

June 9, 2013

The ODNI releases a short statement that refers questions regarding the unauthorized disclosures to DOJ.

June 12, 2013

NSA Director Gen. Keith Alexander testifies at the Senate Committee on Appropriations regarding cybersecurity issues, but fields extensive questions regarding Section 702 and Section 215 collection programs. Specifically, senators ask for details regarding successful counterterrorism operations, the scale of the collections, and their scope.

June 14, 2013

Facebook and Microsoft each release statements describing their respective roles in providing the government data under the FISA.

June 15, 2013

NSA releases a controversial fact sheet regarding its surveillance authorities under 702 and 215. Over a week later, Senators Wyden and Udall suggest the document contains an inaccurate statement, and the document is removed the following day.

June 16, 2013

The ODNI releases another short statement which says, “the statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect and was not briefed to Congress.”

June 18, 2013

General Alexander, Deputy Attorney General James Cole, General Counsel of the ODNI Robert Litt, and Deputy Director of the FBI Sean Joyce testify before the House Permanent Select Committee on Intelligence.

Google files a motion with the FISC asking to “disclose limited, aggregate statistics regarding Google’s receipt of orders issued by this Court.”

June 19, 2013

Senators Wyden and Udall release a statement questioning the effectiveness of Section 215 collection. While the Senators acknowledge the success of 702, they suggest that the administration’s usage of “these programs” when jointly speaking of 215 and 702 collection mistakenly conflates the two separate collection programs, leading to the misrepresentation of 215 as mutually-successful with 702.

Microsoft joins Google with a similar request to the FISC asking for permission to release aggregate statistics concerning government requests for data made to the company under the FISA.

June 20, 2013

The Guardian publishes two classified documents describing the targeting and minimization procedures the NSA uses under Section 702 collection authority.

June 21, 2013

DNI Clapper in a letter to Senator Feinstein apologizes for, and clarifies, his March testimony before the SSCI in which Clapper answered “no” when asked by Senator Wyden if the NSA collected data on millions of Americans.

June 24, 2013

Senators Wyden and Udall, both members of the SSCI, write to Gen. Alexander asking that he correct an undefined “inaccurate statement about how the section 702 authority has been interpreted by the US government.”

June 25, 2013

GC ODNI Robert Litt participates in a panel at the Newseum on the FISA and intelligence collection. Mr. Litt describes Section 702 and Section 215 collection and provides a description those programs’ oversight.

Director NSA Keith Alexander responds to Senators Wyden and Udall’s June 24 letter and agrees to remove the fact sheet containing an inaccurate statement from the NSA website.

June 27, 2013

Twenty-six senators write to DNI Clapper and inquire about the executive branch’s application of the “business records” provision set forth in Section 215. They request details regarding the implementation of the law for non-telephony data, the potential to collect cell-site location data, and the impact Section 215 collection has had on counterterrorism investigations. DNI Clapper responds in an undated letter answering these questions.

July 9, 2013

The Privacy and Civil Liberties Oversight Board (PCLOB) hosts a workshop on surveillance programs “operated pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act.”

July 14, 2013

Senator Blumenthal writes in Politico arguing that the FISC should “bring transparency to the process for selecting FISA court judges” and also appoint a “special advocate” to bring more balance and transparency to the courts considerations.

July 16, 2013

DOJ responds to Rep. Sensenbrenner’s June 6. DOJ argues that because telephone companies need not maintain a database of metadata records on their own, the entire dataset is relevant because the individually-relevant items would not be available should the NSA fail to preserve the entire dataset.

July 17, 2013

The House Judiciary Committee holds a hearing on the implementation of the FISA. ODNI, DOJ, NSA, and FBI defended the legality of the intelligence gathering programs, but committee members from both parties pursued a strong line of questioning, and threatened to restrict FISA collection parameters through new legislation.

July 18, 2013

Gen. Alexander speaks at the Aspen Security Forum regarding NSA’s collection programs. He reinforces that Section 215 collection has been responsible for providing key information in several separate counterterrorism (CT) operations. He brings up the example of the Najibullah Zazi case as an example where both 702 and 215 collection were used and led to a successful CT operation. General Counsel, NSA Raj De also speaks on a panel outlining collection authorities.

Apple, Twitter, Facebook, Google, and a list of other technology firms write a letter to the administration asking permission to release the number of requests for information each company received from the government, as well as the extent to which those requests asked for content or metadata.

July 19, 2013

GC ODNI Robert Litt speaks at the Brookings Institution where he summarizes the different collection regimes under the FISA, the accompanying oversight mechanisms, and expresses the desire to reevaluate some documents for declassification in light of recent disclosures.

The ODNI releases a statement in which it discloses that the FISC has again renewed the administrations authority to collect telephony metadata in bulk.

July 24, 2013

The House narrowly vote down the Amash-Conyers amendment, which would curb NSA phone surveillance to specific targets of law enforcement investigations, by a vote of 217 to 205.

July 26, 2013

Rep. Dutch Ruppersberger authored a USA Today op-ed defending telephony metadata collection by the NSA. He argues, “What we are talking about is collection of ‘metadata,’ not content. No names, no addresses and absolutely no conversations. Just phone numbers.”

July 31, 2013

The DNI declassifies  “Primary Collection Order” authorizing the collection of telephone metadata, signed by FISC Judge Roger Vinson (signed April 25 and expiring on July 19th, 2013).

Also declassified are two reports on NSA’s bulk collection under Section 215, one from 2009, and one from 2011.

Senator Feinstein writes an article entitled “Make NSA programs more transparent” in the Washington Post where she argues that 215 and 702 collection has ʺcontributed to the disruption of terrorist plots and done so within a legal framework that provides strong privacy protections, court review and congressional oversight.ʺ She also describes how to make the programs more transparent, including releasing the number of database queries, warrants, and even some FISC opinions.

The Senate Judiciary Committee holds a hearing on the government’s surveillance programs where leadership from FBI, NSA, ODNI, and NSA defend intelligence operations. They cite 13 cases of terrorism with a “homeland nexus;” twelve of these cases depended upon intelligence collected using Section 215. Specifically, the administration cites the cases of Basaaly Moalin and Najibullah Zazi and states that in those terrorism investigations, both 215 and 702 played a part in overall success.

August 9, 2013

President Obama holds a press conference (video here) in which he lays out his vision for intelligence collection and oversight reform. He discusses revising Section 215, increasing public confidence in FISC oversight, increasing transparency, and forming a group of outside experts to review intelligence capabilities.

The Administration also releases a white paper laying out legal justification for the oversight regimes for intelligence collection under Section 215. It reaffirms the “relevancy” of telephony metadata collections in bulk, so long as the these databases are only queried on a limited, discriminate basis.

NSA publishes a memorandum which gives a brief overview of NSA and it’s legal collection parameters as they relate to EO 12333, FISA Sections 702, 704, 705(b), and Business Records FISA.

August 12, 2013

DNI James Clapper announces the creation of the Director of National Intelligence Review Group on Intelligence and Communications Technologies which is tasked with reviewing U.S. “global signals-intelligence collection and surveillance capability.”

August 15, 2013

Chief of the FISC U.S. District Judge Reggie B. Walton claims in a written statement to the Washington Post, “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”

August 16, 2013

NSA Compliance Director John Delong gives a press briefing detailing, among other things, how NSA deals with mistakes and how they fit into oversight regimes.

August 21, 2013

In one of its most timely and comprehensive FOIA actions, the DNI declassifies documents depicting a fascinating iterative back-and-forth between the executive branch and the FISC pertaining to NSA surveillance programs under Section 702 of FISA. The documents give the deepest insight to date as to how the oversight regime for 702 collection operates. DNI James Clapper publishes a cover letter which gives context to the release.

TitleOrigin DateSummaryLawfare Summary
FISC Memorandum Opinion and Order2011-10-0381-page opinion of Judge Bates finds certain aspects of NSA’s collection under § 702 to be “deficient on statutory and constitutional grounds.” Judge Bates expresses concern regarding the accuracy of the government's representation of collection to the court and orders that the deficiencies be corrected within 30 days.The NSA Documents, Part II: The October 2011 FISC Opinion
FISC Memorandum Opinion and Order: Part 1 and Part 22011-11-30Opinion of Judge Bates finds that the new minimization procedures bring the NSA’s upstream collection of Internet transactions into line with 50 U.S.C. § 1881a(e), and the NSA’s proposed targeting and minimization procedures into line with the Fourth Amendment, sufficiently correcting the deficiencies identified by the October 2011 opinion.The NSA Documents, Part III: The November 2011 FISC Opinion
FISC Memorandum Opinion and Order2012-09-25Opinion of Judge Bates notes that any “overcollection” that had happened up until the amended minimization procedures were adopted potentially implicates 50 U.S.C. § 1809(a)(2), which leaves a remedial problem for collections found to be unauthorized. Three remedial efforts are outlined, and Judge Bates concludes that the steps taken by the government “greatly reduce the risk that NSA will run afoul of § 1809(a)(2) in its handling of the past upstream acquisitions made under color of § 702.”The NSA Documents, Part IV: The September 2012 FISC Opinion
Statement for the Record before the House Permanent Select Committee on Intelligence2011-12-08Statement summarizes the October FISC opinion, which it categorizes as “exhaustive,” and describes October 31, 2011 changes to minimization procedures and the FISC's November 2011 acceptance of these alterations.The NSA Documents, Part V: The Communications with Congress
Statement for the Record before the House Permanent Select Committee on Intelligence2012-02-09Statement reiterates December 2011 statement to Congress, explaining the October 2011 opinion, the October 31, 2011 changes to minimization procedures and the FISC's November 2011 acceptance of these alterations.The NSA Documents, Part V: The Communications with Congress
Letters to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence Leadership regarding § 702 Congressional White Paper entitled The Intelligence Community’s Collection Programs Under Title VII of the FISA2012-05-04DNI and the Department of Justice delivered a document describing the government’s activities as authorized by § 702 to the House Permanent Select Committee on Intelligence and to the Senate Select Committee on Intelligence to inform the Congress’s debate over reauthorizing the FAA. Like the two statements described above, it gives an account of the FISC opinion and the adjustments the government made to upstream collection to satisfy Judge Bates.The NSA Documents, Part V: The Communications with Congress
2011 Minimization Procedures Used by the NSA in Connection with Acquisitions of Foreign Intelligence Information Pursuant to § 702 of the Foreign Intelligence Information Pursuant to § 702 of the FISA, as amended2011-10-31Document describes the court-approved minimization and repository segregation requirements for collection under § 702, to include Internet-based multiple discrete communications acquired through the NSA’s upstream collection techniques.The NSA Documents, Part VI: The 2011 Minimization Procedures
Semi-Annual Assessment of Compliance with the Procedures and Guidelines Issued Pursuant to § 702 of the FISA, Submitted by the AG and the DNI2013-08The ninth FAA-required joint compliance assessment submitted to the FISC by the ODNI and NSD examines NSA, CIA, and FBI compliance from June 1, 2012 through November 30, 2012. The report reviews the oversight of § 702 implementation, identifies trends targeting and minimization, and identifies 338 compliance incidents, as well as their underlying causes and the involved agency’s attempts to prevent recurrences.The NSA Documents, Part VII: The Compliance Report


August 21, 2013

In response to a Wall Street Journal article regarding collection activities, the ODNI-NSA releases a joint statement saying the Journal article portrays “inaccurate and misleading picture” of NSA’s collection activities.

August 22, 2013

The Privacy and Civil Liberties Oversight Board (PCLOB) writes a letter to Attorney General Holder and DNI Clapper asking their respective agencies to communicate regarding updating IC guidelines in relation to EO 12333.

August 26, 2013

Alexander W. Joel, the ODNI Civil Liberties Protection Officer, responds to the August 22 letter from the PCLOB regarding EO 12333.

August 27, 2013

Senator Charles Grassley writes to the NSA Inspector General Dr. George Ellard asking for additional information regarding any cases of willful abuse of surveillance authorities by NSA employees.

August 29, 2013

DNI Clapper announces that the Intelligence Community will release “aggregate information concerning compulsory legal process under certain national security authorities” on an annual basis.

September 9, 2013

Joining Google and Microsoft’s existing requests, Facebook and Yahoo! each file motions in the FISC asking to “lawfully disclose aggregate data regarding any orders and/or directives” received under the FISA and FAA.

September 10, 2013

ODNI releases another cache of documents relating to intelligence collection oversight of the FISC, this time regarding collection pursuant to the Section 215 collection program. This set of documents tells the story of a significant set of errors by NSA that caused factual misrepresentations to the FISC, the court’s response both to the errors themselves and to the government’s reporting failures, and finally the government’s efforts over a protracted period of time to correct and prevent the failures.

TitleOrigin DateExecutive SummaryLawfare Summary
Cover Letter to Chairman of the Intelligence and Judiciary Committees2009-03-05Cover letter submitting several FISC opinions and Government filings relating to the Government’s discovery and remediation of compliance incidents in its handling of bulk telephony metadata under docket number BR 08-13.
Cover Letter to Chairman of the Intelligence and Judiciary Committees2009-09-03Cover letter submitting the Government’s report to the Court and NSA’s end-to-end review describing its investigation and remediation of compliance incidents in its handling of bulk telephony metadata under docket number BR-09-09.
Order from the FISC2006-05-24Order of the FISC approving the Government’s request for authorization to collect bulk telephony metadata under § 501 of FISA.The Latest NSA Documents II: The Crap Hits the Fan
Supplemental Opinion from the FISC2008-12-12Opinion of the FISC concluding that the production of bulk telephony metadata records pursuant to § 501 is not inconsistent with § 2702 and 2703 of Title 18 of the U.S.C.
Order Regarding Preliminary Notice of Compliance Incident Dated January 15, 2009 from the FISC2009-01-28Order of the FISC directing the Government to provide additional information regarding its identification and notification that NSA had improperly queried the bulk telephony metadata by using an automated “alert list” process that resulted in the use of selectors that had not been individually reviewed and determined to meet he required reasonable articulable suspicion standard.
Memorandum of the United States in response to the Court’s Order Dated January 28, 2009, with attachments2009-02-12Memorandum of the Government providing additional information relating to the compliance incident described directly above and describing additional oversight mechanisms deployed by the Government following identification of this compliance incident.The Latest NSA Documents III: The Government Responds
Notice of Compliance Incident2009-02-26Memorandum of the Government providing the FISC with notice of additional compliance incidents identified during NSA’s ongoing end-to-end review of the telephony metadata program.The Latest NSA Documents IV: Things Get Worse
Order from the Foreign Intelligence Court2009-03-02In light of the compliance incidents identified and reported by the Government, the FISC ordered NSA to seek Court approval to query the telephony metadata on a case-by-case basis, except where necessary to protect against an imminent threat to human life “until such time as the Government is able to restore the Court’s confidence that the government can and will comply with the previously approved [Court] procedures for accessing such data.”The Latest NSA Documents IV: Things Get Worse
Order2009-06-22In response to the Government’s reporting of a compliance incident related to NSA’s dissemination of certain query results discovered during NSA’s end-to-end review, the FISC ordered the Government to report on a weekly basis, any disseminations of information from the metadata telephony program outside of NSA and provide further explanation of the incident in its final report upon completion of the end-to-end review.
Report of the United States with attachments2009-08-19Report of the Government describing the compliance issues uncovered during NSA’s end-to-end review, including an explanation for how the compliance issues were remedied. Attached to the Report are declarations of the value of the bulk telephony metadata program from the Directors of NSA and the FBI.The Latest NSA Documents V: the NSA Investigates Its Metadata Compliance Problems, Takes Remedial Steps, and Reports Back to the FISC
Implementation of the FISC Authorized Business Records FISA2009-06-25NSA’s end-to-end review of it’s implementation of the FISC’s authorization under § 215.
The Latest NSA Documents V: the NSA Investigates Its Metadata Compliance Problems, Takes Remedial Steps, and Reports Back to the FISC
Primary Order from the FISC2009-09-03Order of the FISC renewing authorization for the bulk telephony metadata program, and no longer requiring NSA to seek FISC approval to query the telephony metadata program on a case-by-case basis.The Latest NSA Documents VI: Non-Compliance Redux, With More DOJ
Order Regarding Further Compliance Incidence from the FISC2009-09-25In response to the Government’s identification and notice to the FISC regarding improper dissemination of information related to an ongoing threat, the FISC ordered a hearing to inform the FISC of the scope and circumstances of the compliance incident.The Latest NSA Documents VI: Non-Compliance Redux, With More DOJ
Supplemental Opinion and Order from the FISC2009-11-05Supplemental Opinion and Order of the FISC reiterating Court ordered restrictions on NSA’s handling of query results of the telephony metadata program, and directing the Government to provide the court with additional information regarding queries of the telephony metadata.The Latest NSA Documents VI: Non-Compliance Redux, With More DOJ


September 11, 2013

NSA Inspector General responds to Senator Grassley’s August 27 letter. The IG describes 12 separate cases where NSA signals intelligence authority was intentionally misused by employees.

September 13, 2013

Gen. Alexander and NSA Deputy Director Inglis sends a letter (that is later leaked) addressed to the “extended NSA/CSS family” defending the agency from what Alexander and Inglis see as wrongful public portrayals of its activities, and concludes with the claim that “[w]e have weathered storms before and will weather this one together, as well.”

September 17, 2013

LinkedIn files a motion in the FISC asking to release information on government requests for data, joining four other companies.

September 17, 2013

The ODNI releases a “primary order” from Judge Eagan of the FISC dated August 29 laying out the case for the legality of the telephony metadata program under Section 215.

TitleOrigin DateSummaryLawfare Summary
FISC Opinion and attached Order2013-07-19, 2013-08-29Memorandum opinion by Judge Eagan, dated August 29, which explains the earlier July 19 order granting the government’s application to obtain “certain business records of specified telephone service providers” on a daily basis for 90 days, pursuant to § 215.Congress Has No Clothes: A Quick and Dirty Summary of the New FISC Opinion

September 26, 2013

DNI James Clapper, Director NSA Keith Alexander, and Deputy Attorney General James Cole testify before an open hearing of the SSCI regarding the potential for reform of the FISC.

September 30, 2013

The Department of Justice asks the FISC to reject Google, Microsoft, Yahoo, Facebook, and LinkedIn’s request to release statistics on data provided under Section 215 and 702. DOJ argues that the FISC lacks the jurisdiction to discuss the applicability of the nondisclosure agreements relevant to releasing those statistics.

Yahoo files a motion with the FISC asking permission for pre-publication review by a Yahoo counsel before a relevant document is declassified and publically released by the Court.

 October 2, 2013

James Clapper and Keith Alexander testify before the Senate Judiciary Committee regarding FISA collection oversight regimes and the scope of the collection programs. Both Alexander and Clapper attempted to characterize the programs as legal, limited, and necessary, even in a time of government sequestration. They revealed that the NSA experimented with collecting location data of communications, but never utilized the capability.

October 14, 2013

Based on documents provided by Snoweden, The Washington Post reports that NSA is “harvesting hundreds of millions of contact lists from personal e-mail and instant messaging accounts around the world, many of them belonging to Americans.”

October 17, 2013

A letter from FISC Chief Judge Reggie Walton to the Senate Intelligence leadership is released to the public. The letter includes information about how FISC operates and what percentage of requests for warrants are rejected.

October 18, 2013

The Foreign Intelligence Surveillance Court (FISC) redacts and makes available another memorandum and primary order dealing with Section 215 telephone metadata collection.

October 24, 2013

Multiple reports that NSA spied on allied foreign leaders emerge in both France and Germany. According to the Guardian, NSA “monitored the phone conversations of 35 world leaders after being given the numbers by an official in another US government department, according to a classified document provided by whistleblower Edward Snowden.”

October 27, 2013

Der Spiegel research, including evaluation of documents from the archive of former NSA contractor Edward Snowden, concludes that the US diplomatic mission in the German capital has not merely been promoting German-American friendship. From the roof of the US Embassy in Berlin, a special unit of the CIA and NSA known as the “Special Collection Service” (SCS) can apparently monitor a large percentage of cell phone communication in the government quarter.

October 28, 2013

DNI James Clapper directs the declassification of 10 additional documents pertaining to Section 215 of the USA PATRIOT Act, commonly referred to as BR FISA.

TitleOrigin DateExecutive SummaryLawfare Summary
NSA notification memorandum2009-02-25NSA notification memorandum to the House Permanent Select Committee on Intelligence (HPSCI) of compliance incidents identified during an on-going NSA-initiated End-to-End review of its collection of bulk telephony metadata pursuant to Section 215 authorities.
Internal NSA Memorandum of Understanding2009-03Internal NSA Memorandum of Understanding required for access and query privileges of data collected through NSA’s bulk telephony metadata program under Section 215 authorities.
NSA notification memorandum 2009-05-07NSA notification memorandum to the Senate Select Committee on Intelligence (SSCI) and HPSCI on the status of the on-going NSA-initiated End-to-End review of its collection of bulk telephony metadata pursuant to Section 215 authorities.
Letter from the Department of Justice2009-07-02Letter from the Department of Justice (DoJ) to the United States Foreign Intelligence Surveillance Court (FISC), providing notice of the production of NSA’s June 25, 2009 Business Records Foreign Intelligence Surveillance Act (FISA) End-to-End Review Report to the Congressional Intelligence and Judiciary Committees.
NSA notification memorandum2009-09-10NSA notification memorandum to SSCI of presentations made to several FISC judges regarding NSA’s bulk telephony metadata program under Section 215 authorities and of the FISC granting the government’s request to reauthorize the bulk telephony metadata program and restoring to NSA the authority to query the metadata upon a Reasonable Articulable Suspicion standard without seeking Court approval on a case-by-case basis.
Joint Statement for the Record2009-10-21Joint Statement for the Record by the Director of the National Counterterrorism Center and the Associate Deputy Director for Counterterrorism of the NSA, to HPSCI providing information relating to NSA’s bulk telephony metadata program under Section 215 authorities for the USA PATRIOT Act reauthorization.
Letters from the Department of Justice2009-12-17Letters from DoJ to Representatives Bobby Scott, John Conyers, and Jerrold Nadler providing notice of Executive branch efforts with the Intelligence Committees to make a detailed report on NSA’s bulk telephony metadata program under Section 215 authorities available to all Members of Congress.
Cover Letter from the Department of Justice2010-08-16Cover Letter from DoJ for submission of several documents to the Congressional Intelligence and Judiciary Committees relating to NSA collection of bulk telephony metadata under Section 501 of the FISA, as amended by Section 215 of the USA PATRIOT Act.
Memorandum from NSA2011-04-01Memorandum from NSA to SSCI regarding NSA’s receipt of cell site location information test results.
NSA notification memorandum2011-09-01NSA notification memorandum to the House and Senate Committees on the Judiciary on NSA’s collection of telephony metadata under Section 501 of FISA.

October 30, 2013

Barton Gellman and Ashkan Soltani of the Washington Post reveal Edward Snowden-leaked documents that show that the NSA ”has secretly broken into the main communications links that connect Yahoo and Google data centers around the world.”

ODNI releases more documents, though none contain any explosive new revelations. Unlike previous releases, it does not show big problems under either Section 215 or Section 702 that produced FISC litigation over months to resolve. They are, to put it mildly, pretty weedy. That said, there is important information in them.

November 1. 2013

The Senate Intelligence Committee votes to approve draft of FISA reform legislation. The committee-backed legislation, called the FISA Improvements Act of 2013, can be found here.

November 12, 2013

USG responds to the Center for National Security Studies’s motion for a public briefing on FISC’s metadata orders. USG argues that CNSS is seeking to expand beyond its proper role of amica curiae. CNSS is seeking “plenary consideration by the full court that includes an opportunity for amici curiae to submit a brief or briefs setting forth reasons why section 501 of the Foreign Intelligence Surveillance Act, 50 USC § 1861, does not authorize that bulk collection.”

November 13, 2013

Lawfare’s Paul Rosensweig and others testify for the Senate Judiciary Committee on the Surveillance Transparency Act of 2013. The Committee website has testimony, and Lawfare has summary and analysis.

November 18, 2013

DNI releases NSA documents, training slides and internal guidance demonstrating how NSA’s foreign intelligence collection operates. Included are detailed policies and procedures and two opinions from FISC on metadata programs.

November 23, 2013

Motions begin in ACLU v. Clapper: District Court Judge William H. Pauley III, of the Southern District of New York, hears oral argument in the American Civil Liberties Union’s (“ACLU”) challenge to the government’s bulk telephony metadata collection program under Section 215 of the USA PATRIOT Act. Before Judge Pauley are two motions in the case of ACLU v. Clapper: first, the ACLU’s request for a preliminary injunction to halt such surveillance; and second, the Department of Justice’s motion to dismiss the case entirely, on standing and other grounds.

November 26, 2013

Based on documents from Ed Snowden, Glenn Greenwald writes in the Huffington Post about an NSA program designed to discredit those who are radicalizing others toward terror by “gathering records of online sexual activity and evidence of visits to pornographic websites.” Greenwald compares the NSA program to J. Edgar Hoover’s surveillance of Martin Luther King Jr. Documents are published in HuffPost.

December 1, 2013

According to documents revealed by Edward Snowden and published in The Guardian, Australia’s surveillance agency offered to give information on some of its citizens to its major intelligence partners.

December 2, 2013

Senators Ron Wyden, Mark Udall and Barbara Mikulksi propose an NSA reform amendment to the NDAA. This proposal operates differently than the more substantial FISA reform bills put forth, and it attempts to mandate greater transparency, rather than codify or alter the programs’ current scope.

December 4, 2013

Based on documents from Edward Snowden, Bart Gellman writes in the Washington Post about an NSA program that collects 5 billion records a day on the locations of cellphones around the world, enabling the tracking of movements and the mapping of relationships.

December 5, 2013

In an interview recorded for Hardball, President Obama defends NSA as genuinely committed to “the safety of the American people.” But he acknowledged that there may be some overreach that raises privacy concerns. The President told Chris Mathhews: “I’ll be proposing some self-restraint on the NSA. And…to initiate some reforms that can give people more confidence.

December 9, 2013

More Snowden documents are released by the Guardian, the New York Times and Pro Publica. They reveal that NSA has attempeted to recruit informants through the online gaming community.

December 11, 2013

Senate Judiciary Committee holds hearing on surveillance activities; Senior government officials defend the programs passionately, and NSA Director Keith Alexander warns of “returning to a pre-9/11 moment” if NSA capabilities are scaled back. Written testimony can be found here.

December 12, 2013

As the President’s Review Group prepares to produce its report on surveillance technology, the New York Times gives some advance notice of their conclusions: These include keeping metadata programs but increasing safeguards, high-level review of the decision to spy on foreign leaders, and regular review of intelligence gathering.

December 16, 2013

In Klayman v. Obama, Judge Richard Leon of the U.S. District Court for the District of Columbia bars the NSA telephony metadata program and requires existing metadata’s deletion. Judge Leon stays his order pending review.

December 18, 2013

The President’s Review Group on Intelligence and Communications Technology releases its report. Lawfare’s extensive analysis begins!

December 20, 2013

The Guardian and Der Spiegel release Snowden documents indicating that GCHQ and NSA targeted charities and senior EU, German and Israeli officials: “British and American intelligence agencies had a comprehensive list of surveillance targets that included the EU’s competition commissioner, German government buildings in Berlin and overseas, and the heads of institutions that provide humanitarian and financial help to Africa, top-secret documents reveal.” – The Guardian

The leadership of the Senate Intelligence Committee pushes back against the PRG, arguing that “a number of recommendations in the report should not be adopted by Congress, starting with those based on the misleading conclusion that the NSA’s metadata program is ‘not essential to preventing attacks.’”

December 21, 2013

The office of the Director of National Intelligence declassifies and releases ten Bush-era declarations from previous directors that were filed in support of the U.S. Government’s prior assertions of the state secrets privilege and sources and methods privilege.

December 27, 2013

Southern District of New York Judge William H. Pauley III grants USG’s motion to dismiss in ACLU v. Clapper, a lawsuit challenging the legality of the telephony metadata program, and found the program to be lawful.

December 30, 2013

Based on Snowden documents, Der Spiegel reports on an advanced NSA unit that acts as a “squad of plumbers that can be called in when normal access to a target is blocked.”

January 1, 2014

Citing “the enormous value of the information he has revealed,” the New York Times calls for the United States to “to offer Mr. Snowden a plea bargain or some form of clemency.”

January 3, 2014

The Washington Post reports that NSA is developing a “quantum computer” to help crack encryptions. The amusingly sci-fi-sounding article begins: “National Security Agency is racing to build a computer that could break nearly every kind of encryption used to protect banking, medical, business and government records around the world. According to documents provided by former NSA contractor Edward Snowden, the effort to build “a cryptologically useful quantum computer” — a machine exponentially faster than classical computers — is part of a $79.7 million research program titled “Penetrating Hard Targets.”

January 13, 2014 

The New America Foundation releases a report on the effectiveness of NSA bulk data collection. The report is authored by Peter Bergen, David Sterman, Emily Schneider, and Bailey Cahal and labels defenses of the program as “misleading” and “overblown.”

January 14, 2014

U.S. District Judge John Bates sends 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 former FISC and FISCR judges, the materials set forth the “views of the Judiciary” regarding proposed surveillance changes.

The members of the Presidential Review Group testify before the Senate Judiciary Committee and answer questions. They defend their recommendations from senators on both sides of the public debate.

January 17, 2014

Based on more Snowden documents, the Guardian reports that NSA and British intelligence collects 200 million emails and text messages daily, using the material to mine for personal information and data.

President Obama delivers a speech on intelligence reforms. His speech is both a ringing endorsement of the professionalism of the intelligence agency and an announcment of certain modest intelligence reforms. As part of his remarks, the President stresses the privacy rights of both US and non-US persons. In conjunction with his speech, the President also releases a presidential policy directive outlining principles and implementations of his immediate reforms.

DNI Clapper declassifies twenty five historical FISC orders. The released documents comprise orders from the FISC approving the National Security Agency’s (NSA) collection and use of telephony metadata under Section 501. These orders provide additional information regarding the controls imposed by the FISC on the processing, dissemination, security and oversight of telephony metadata acquired under Section 501.

 January 20, 2014

Pew releases poll on American views of Snowden and surveiilance. The poll shows that President Obama’s speech had little immediate impact on public perceptions of intelligence gathering. Majorities oppose NSA metadata gathering and want to see Snowden prosecuted.

January 24, 2014

The Privacy and Civil Liberties Oversight Board releases its report. A majoirty of members find the 215 program not only unwise, but also unlawful. The majority-minoirty split is along partisan lines.

January 26, 2014

In an interview with al-Jaszeera, Ed Snowden claims that NSA is involved in industrial espionage. He claims this his documents establish that if German companies had information beneficial to the U.S., but had nothing to do with national security needs, NSA would use it anyway.

January 29, 2014

A leading public law barrister, Jemima Stratford QC, issus an advisory opinion on data gathering for members of parliament. The report is highly critical and find many GCHQ data collection activities unlawful.

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