PCLOB Ignores Glaring Section 702 Non-Compliance: Notice to Defendants

I will have far more to say about PCLOB once I finish my working thread. But there’s one glaring flaw in the report’s claim that the government complies with the statute.

Based on the information that the Board has reviewed, the government’s PRISM collection complies with the structural requirements of the statute.

But here’s the report’s discussion of what happens with aggrieved persons — those prosecuted based in information derived from Section 702 information.

Further, FISA provides special protections in connection with legal proceedings, under which an aggrieved person — a term that includes non-U.S. persons — is required to be notified prior to the disclosure or use of any Section 702–related information in any federal or state court.447 The aggrieved person may then move to suppress the evidence on the grounds that it was unlawfully acquired and/or was not in conformity with the authorizing Section 702 certification.448 Determinations regarding whether the Section 702 acquisition was lawful and authorized are made by a United States District Court, which has the authority to suppress any evidence that was unlawfully obtained or derived.449 

But for 5 years after the passage of the law, the government never once gave defendants notice they were aggrieved under Section 702. It lied to the Supreme Court about not having done so. And even while it has since given a limited number of defendants — like Mohamed Osman Mohamud — notice, there are others — David Headley, Najibullah Zazi and Adis Medunjanin, and Khalid Ouazzani — who are known to be aggrieved under Section 702 who have never received notice. Finally, there is the case of the Qazi brothers, which seems to be a case where the government is parallel constructing right in the face of the magistrate.

PCLOB said that the government is generally in compliance with the statute. And yet, it made no mention of known, fairly egregious violations of the statute.

That suggests the report as a whole may be flawed.

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4 Responses to PCLOB Ignores Glaring Section 702 Non-Compliance: Notice to Defendants

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Emptywheel Twitterverse
emptywheel Steven Cook: There are many cases where LE uses Stingray under emergency exception. (DOJ likes to pretend not many--thanks for clarifying)
emptywheel They're just calling Gronk for OPI bc entire league is too afraid to test the inflation of his balls. https://t.co/IMDv658cli
emptywheel .@JimPressOffice To SEC: "You'd like to expand something that's already been determined unconstitutional."
emptywheel .@JimPressOffice Asks Ceresny if he wrote his testimony in 2009. Gets at same point @CRCalabrese but even more effectively.
emptywheel @chinahand the Paris attack itself?
emptywheel .@CRCalabrese notes that if you haven't used an authority for 5 years, then you don't have that authority, regaining it would be new.
emptywheel @normative Right: the baby that poops and pees. Empathy for my 4 year old self makes me sad I'm so opposed to Hello Barbie @TrueFactsStated
emptywheel @TrueFactsStated Tho my father's last Christmas (I was 27) he got me a wind-up penguin instead bc Baby Alive too expensive. @normative
emptywheel @TrueFactsStated My bro bought me one when I was 28. I turned out to be a horribly neglectful Baby Alive mom. @normative
emptywheel @normative I was thinking that the child only gets pillow privacy rights after a certain age, @JasonKuznicki
emptywheel @TrueFactsStated Fr age 4 - 6 I asked only for Baby Alive for both birthday & Xmas. Never got it. Prolly ruined me on all counts @normative
emptywheel @JasonKuznicki Did you see my Tooth Fairy Q? Fourth Amendment infringement of your child's pillow? @normative
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