January 8, 2010: A Remarkably Busy Day in Telecom Law

I Con the Record has just released a bunch of new documents, showing how (according to Ellen Nakashima) Sprint challenged a dragnet order, and in response got to see the FISA Court opinions authorizing the program. (Well, not really the telecom opinion; rather they mostly authorize the PRTT program.)

The official story goes like this:

In early 2009, Sprint received an order saying that all customer call records had to be turned over to the government, current and former officials said. Over the summer and fall, the company’s executives met several times with Justice Department officials to understand how Section 215, which compelled companies to turn over records relevant to investigations, could be used to mandate the transfer of all call records.

Dissatisfied with their answers, Sussmann, the Sprint attorney, wrote a detailed petition to challenge the order. In late 2009, shortly before the petition was to be filed, Robert S. Litt, the top intelligence official for the U.S. intelligence community, pressed officials to provide the legal rationale to the company, according to a former administration official.

Intelligence officials then furnished several court rulings, in particular, a 2004 opinion written by Colleen Kollar-Kotelly, then chief judge of the surveillance court, according to the documents released Wednesday. While the opinion related to the collection of e-mail addressing information, the legal rationale was identical.

But there are a few more details I find exceedingly interesting.

First, here’s what the government declassified in response to Sprint’s challenge:

  • Colleen Kollar-Kotelly’s July 24 [14], 2004 opinion (the government is only now admitting the date)
  • Response to Orders for Additional Briefing (it’s unclear whether this is PRTT or phone dragnet, but given the order, I’m guessing PRTT)
  • Opinion (again, it’s unclear whether this is PRTT or phone dragnet)
  • The original application for the dragnet, including all exhibits, and the original dragnet order (note, we’ve not seen all the exhibits)
  • The application, including all exhibits, the Primary Order, and Reggie Walton’s supplemental order finding the phone dragnet did not violate ECPA

That is, not only the opinions authorizing the “relevant to” bullshit used to justify the program, but also the opinion stating that the dragnet did not violate ECPA.

And here’s the other thing I find so interesting. The motion to unseal the records is dated January 7, 2010. The motion for more time, the order granting it, and the order approving the unsealing of the records were all dated January 8, 2010.

January 8, 2010, January 8, 2010, January 8, 2010.

On January 8, 2010, DOJ’s OLC issued an order finding that ECPA permitted telecoms to hand over toll records to the government voluntarily for certain kinds of investigations. OLC wrote that opinion because DOJ Inspector General Glenn Fine had been investigating National Security Letters (and, oh by the way, Section 215) for years, and found big problems, at least, with the paperwork FBI handed 3 telecoms who were living onsite at FBI. We found out about the order almost immediately, when Fine issued his report later that month.

I’ve long suspected that Reggie Walton only considered the ECPA question both because of Fine’s ongoing NSL investigation but, probably, also because of whatever conclusions Fine drew in his examination of the illegal wiretap program (I suspect FISC only considered financial records for the same reason, Fine’s 215 investigation in 2010) and potentially his ongoing investigations of Section 215.

And now we know that just as Fine was raising real questions about the legality of the incestuous record-sharing the government and the telecoms had been engaged in for years (one that’s about to start again with the new “reformed” dragnet), Sprint not only demanded the underlying records authorizing the dragnet, but even the supplemental opinion finding the dragnet didn’t violate ECPA.

Here’s what I wrote 4 years ago about that OLC opinion.

  • As I will explain at length later, this OLC opinion may not relate exclusively to the use of exigent letters, not least because Inspector General Glenn Fine appears worried the FBI will use it prospectively, not just to retroactively rationalize abuses from the past.
  • Fine appears to disagree whether the FBI has represented what it was doing with exigent letters honestly in its request for an opinion to the OLC. This is at least the second time they have done so, Fine alleges, in their attempts to justify these practices. In this case, the dispute may pertain to whose phone records they were, what was included among them, and whether they pertained to an ongoing investigation.
  • My guess is that the OLC opinion addresses whether section 2701 of the Stored Communications Act allows electronic communication providers to voluntarily provide data to someone above and beyond the narrow statutory permission to do so in 2702 and 2709 of the Act.
  • Whatever the loophole FBI is exploiting, it appears to be a use that would have no protections for First Amendment activity, no requirement that the data relate to open investigations, and no minimization or reporting requirements. That is, through its acquisition of this OLC opinion, the FBI appears to have opened up a giant, completely unlimited loophole to access phone data that it could use prospectively (though the FBI claims it doesn’t intend to). Much of Fine’s language here is an attempt to close this loophole.

In January, EFF lost its bid to obtain that memo in the DC Circuit.

Now, what are the chances that Sprint also didn’t get a looksee at the OLC memo authorizing not just what the FISC had approved, but also the violative Section 215 collection that had been in place until early 2009?

What are the chances that that OLC opinion, dated January 8, 2010 and pertaining to ECPA, is unrelated to the decision to declassify the FISC opinion assessing whether the phone dragnet violated ECPA?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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 the Guardian, Salon, and the Progressive, 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 and dog in Grand Rapids, MI.

8 replies
  1. P J Evans says:

    What are the chances that that OLC opinion, dated January 8, 2010 and pertaining to ECPA, is unrelated to the decision to declassify the FISC opinion assessing whether the phone dragnet violated ECPA?

    About the same as the chances of me winning the lottery. (I’ve never, ever, gotten more than two numbers. Usually only one.)

    • chronicle says:

      quote
      “What are the chances that that OLC opinion, dated January 8, 2010 and pertaining to ECPA, is unrelated to the decision to declassify the FISC opinion assessing whether the phone dragnet violated ECPA?

      ‘About the same as the chances of me winning the lottery. (I’ve never, ever, gotten more than two numbers. Usually only one.)’ “unquote

      Maybe I don’t understand something here. Is emptywheels question a snark, or honest question. After reading the whole post, I was thinking 100%, as opposed to PJ’s odds. Could someone explain how the questions relate to the rest of emptywheels post? I seem to be missing a connection..or something. Thanks..

      Ps.. I’ve started an abbreviation index, as new ones appear daily. For those who are not fluent in IC lexicon, it’s difficult maintaining a mental index. Add all the gov abbreviations and Twitter things…it’s frustrating reading these post’s as most of the abbreviations meaning add important clues to the story. In that light, could some one decipher these for me? thnx.
      PRTT
      ECPA

      Now..
      quote”That is, through its acquisition of this OLC opinion, the FBI appears to have opened up a giant, completely unlimited loophole to access phone data that it could use prospectively (though the FBI claims it doesn’t intend to). “unquote

      After watching FRONTLINE last night, I’ve gained an important clue to the nature and function of the OLC, both in theory and reality. I believe my previous opinion has now been vindicated. Especially after reading this post. It appears, this is a completely politically contaminated office, as if their entire reason for existing..is to legally propel
      the current party executive’s mandates, or they are fired. No? Where ever the real ethical boundarys lay, as for Frontlines expose of the OLC’s rubber stamping Bush and Haydens “program”, and then seeing the DOJ revolt over the same authorization memo, I’m more convinced than ever, that whenever the OLC issues their opinions/memo’s, you can bet your sweet bippy, especially if they get classified, it’s doubtful they would make it through Supreme Court Constitutional scrutiny. Otherwise, why would an administration fight with everything they have to keep it from reaching there, notwithstanding the existence of being exposed in the first place.

      It’s only because of Frontline, that I now understand WHY, the entire executive branch under Bush and Obama, has been fighting tooth and nail to keep these program challenges from ever reaching the Supreme Court. Deep down…they know..if by chance(which we all know won’t EVER happen), the SCOTUS declared them UN-Constitutional.. a WHOLE BUNCH of these scumbags would be in DEEP FUCKING DOO DOO. Hence, the source of membership in LIARS-R-US. Which numbers in the THOUSANDS.

  2. chronicle says:

    ps. I forgot. I wanted to thank emptywheel for her exceptional and daily analysis. It must take most of her time, and the least I can do is thank her. Thank you Marci.

  3. Snoopdido says:

    Off topic, but I’m not holding my breath – Feinstein Wants CIA To Speed ‘Torture Report’ Release – http://www.npr.org/blogs/itsallpolitics/2014/05/14/312544149/feinstein-wants-cia-to-speed-torture-report-release

    “I was told by the White House chief of staff [Denis McDonough] that it’s probably not until July,” said Intelligence Committee Chairwoman Dianne Feinstein when I asked her Wednesday when the CIA’s vetting of the documents would be complete.
    .
    “I’m in discussion with Director [of National Intelligence James] Clapper to see if we can’t move that up,” the California Democrat added.
    .
    And is she comfortable with the CIA doing the vetting? “Not particularly, no,” Feinstein said, “but I’m comfortable with Director Clapper’s oversight.”
    .
    Feinstein’s faith in Clapper – some people just never learn.

    • P J Evans says:

      She’s had years to learn. I don’t know why she can’t. Or won’t. (I don’t think it’s dementia, since she seems to function okay the rest of the time.)

    • chronicle says:

      quote”Off topic. Frontline should have just interviewed Emptywheel.”unquote

      Indeed. I’ve wondered why attorneys with clients challenging the USG surveillance programs, haven’t called upon her as an expert witness.

      quote”Feinstein’s faith in Clapper – some people just never learn.”unquote

      They’re both card carrying members in club LIARS-R-US.

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