The John Bates Internet Metadata Opinion Probably Dates to July 2010

I’ve seen a lot of outright errors in the reporting on the John Bates opinion authorizing the government to restart the Internet metadata program released on Monday.

Bates’ opinion was likely written in July 2010.

We know it had to have been written before October 3, 2011, because Bates’ opinion of that date cites this one (page 17 footnote 15). It was almost certainly written before May 2, 2011, because that’s when the government “clarified” its upstream production included US person content, which was likely a response to this opinion.

According to Claire Eagan, it was written in 2010; this quotation from Eagan’s opinion cites page 73 of this opinion (though she leaves out one word — “analytic” — from this quotation).

As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ [analytic] tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”

It had to have been written after June 21, 2010 and probably dates to between June 21 and July 23, 2010, because page 92 footnote 78 cites Holder v. HLP (which was released on June 21), but uses a “WL” citation; by July 23 the “S. Ct.” citation was available. (h/t to Document Exploitation for this last observation).

So: it had to have been written between June 21, 2010 and October 3, 2011, but was almost certainly written sometime in the July 2010 timeframe.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

6 replies
  1. peasantparty says:

    Excellent muck raking!

    I just caught a Sledge, er Slice of the same pie about 15 minutes ago. I read this earlier today, but didn’t comment. This is detailed and simply amazing that the NSA and Govt. will disobey laws while Alexander and Clapper lie about it.

  2. bloodypitchfork says:

    Honest question emptywheel. If and when, you finally reach some kind of absolute “truth” at the end of this NSA rule of law rainbow whereby you PROVE, beyond a shadow of doubt, that the USG is now a Supranational Sovereign who can do what it pleases when it pleases and for what ever reason it pleases… then what?

  3. peasantparty says:

    @bloodypitchfork: OoooHa!!!!

    I won’t speak for the Emptywheel Author, but I think there is a rumblin under the ground. The Peasants are angrier than ever. There will be Tundrels, By God’s Bones! Yes, they will be pushed and pulled by the Peasants to carry off the carcasses of tyranny. You, will be matched by many BPF!

  4. ess emm says:

    Redacting dates. Ha! Who do these guys think they’re dealing with?

    Go get ’em, Marcy. Just imagine if you had more cryptology, lol

  5. emptywheel says:

    @bloodypitchfork: I think the international developments could either lead to a humbling of that Supranational Sovereign or could lead to balkanization. So that may take care of itself (though that doesn’t necessarily mean things will get better).

    The key is getting people in this country to understand how much our democracy has become kabuki in the face of the secret state.

  6. klynn says:

    @emptywheel:

    Absolutely!

    Great post. Love how you dissect dates, timelines and court affirmations that are based on lies. You are an amazing gift.

    “The key is getting people in this country to understand how much our democracy has become kabuki in the face of the secret state.” -EW

    Perfectly stated.

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