Latest in FISA
While Flynn's registration as a “foreign agent” under FARA does not mean he was targetable as a "foreign agent" under FISA, it does raise a series of important questions.
Under minimization rules, no serious argument can be made that Flynn’s identity was not necessary to understand the intelligence significance of his call with the Russian ambassador. The call is foreign intelligence information mainly because it involves Mr. Flynn.
While John DeLong and Susan Hennessey establish that the NSA did not willfully violate RAS compliance, they do not fully address the disconnect that the RAS compliance problem revealed between the NSA’s institutional culture and Congress’s plan.
Benjamin Wittes flags that much of the Yahoo story is unclear, including legal arguments and the objective of the search, and further reporting from Motherboard and the Intercept further confuses the possible mechanism of the search, describing it not as a spam filter but like a "rootkit" and opening up a significant vulnerability.
In 2009, the discovery of a major complaince incident shook NSA to its core. This is the story of how it came to pass and what happened next.
I have very little sense of what really happened between the government, Yahoo and the FISA court. So I'm going to wait to have an opinion until I actually know something. So should everyone else.
One of the foundational questions in surveillance law is how to distinguish between the contents of communications and non-content metadata. Identifying the line between the two is critical. Earlier this week, the ODNI declassified an April 2016 FISCR decision that adopts an approach to the distinction in some tension with a recent Third Circuit case.
If investigators had wanted to obtain authorization to conduct electronic surveillance or physical search of Omar Mateen, could they have?