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
bmaz @AllThingsHLS @robertcaruso @JimmyPrinceton Aso kind of declared war on the citizenry. Also not helpful in the face of such a tragedy.
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bmaz @AllThingsHLS Ima hazard a guess you think this press release was not exactly a good idea.... @robertcaruso @JimmyPrinceton
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bmaz @dmataconis @JimmyPrinceton The author of that should be fired immediately. Jeebus.
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emptywheel RT @JimWhiteGNV: GAO Analysis Highlights Lab Samples Excluded in Sloppy FBI Anthrax Investigation https://t.co/3yUk5sKX7n
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JimWhiteGNV GAO Analysis Highlights Lab Samples Excluded in Sloppy FBI Anthrax Investigation https://t.co/3yUk5sKX7n
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bmaz @adambonin Well, at least you have the Sixers!!
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emptywheel @nickmanes1 Thanks! Happy holidays backatcha. @ryanjreilly
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emptywheel I could take or leave Harbaugh as UM coach, but just to fuck with the state of MI he should announce he's coming after tonight's game.
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emptywheel @PhilPerspective Some of those Iggles fans are my family members. Just as well I mosey my way out slowly.
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emptywheel @PhilPerspective Dunno. Prolly not too long. @ryanjreilly @nickmanes1
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emptywheel WOOT! GOKiTTIES!!! Thanks Washington. You done good.
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emptywheel @JulieATate Damnyou Washington, don't blow this!
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