Working Thread on FISA Order, Opinion


(2) Prohibition on cell site may be new with this primary order.

(2) The redaction in FN 3 suggests there was at least one change made in program.

(3) Note Court claims it didn’t read White Paper. Which means it pretends it doesn’t know that briefings for Congress not as advertised.

(4) inclusion of discovery rules may be new, as would oversight function be.

(5) FISC appears to have no understanding of what 3 hops gives the government. It’s data mining.

(5) The incidents in FN 8 appear to be new (because the 2009 ones were about collection, not dissemination, save the ones in late 2009).

(8) The precedent on bulk collections was not mentioned in either 2006 or 2008 opinions.

(9) The grouping argument is similar to one the govt made in Moalin.

(10) Govt has not invoked presumption (though it wouldn’t need to).

(16) I’m not so surprised that no telephone companies have challenged Section 215 orders. I’m surprised that no company (still!) has challenged a bulk order.

(20) Mention of metadata in first paragraph makes it really likely that the other decision was the Internet metadata.

(20) Note the inclusion of “affiliated persons” at end of page.

(21) Note the reference to the government’s Memorandum of Law, submitted in the first phone dragnet docket. The actual order repeats none of this analysis. Truly, it was one shitty opinion.

(22) Note how the opinion relies on both that original memorandum and a new exhibit from the government.

(22) What’s wrong with this logic?

Because the subset of terrorist communications is ultimately contained within the whole of the metadata produced, but can only be found after the production is aggregated and then queried using identifiers determined to be associated with identified international terrorist organizations, the whole production is relevant to the ongoing investigation out of necessity.

This was written 4 months after the Boston Marathon attack, in which someone known to have tried to meet with Chechen terrorists bombed in America. But somehow the Tsarnaevs weren’t discovered. And that is because … ?

(25) Note the language in the footnote that is redacted in the letter to Congress. “substantially all of the telephone calls handled by the companies.”

My comments on the congressional notice are here.

(Order 3) Note the reference to cell site location. That is new since the April opinion.

(Order 6) The language in paragraph C on “queries … to obtain contact chaining information” is slightly different from the April opinion.

(Order 10) The first two sentences in footnote 10 were redacted in the previous opinion. These other call detail records likely pertain to 12333 collected foreign data, but it’s possible a reference (whether the court realizes it or not) to subscriber ID obtained via NSL.

(Order 11) The date of the automated query approval — November 8, 2012 — was redacted in the earlier order.

10 replies
  1. Peterr says:

    Marcy, in footnote four at the bottom of page 3, it says

    . . . this Court heard heard argument from attorneys from the U.S. Department of Justice, and received sworn testimony from personnel from the FBI and NSA.

    Do you know whether the FISC ever hears direct testimony in person, so as to be able to question the witnesses, or do they always merely accept sworn depositions presented by the DOJ attorneys?

  2. greengiant says:

    Regarding, (16) I’m not so surprised that no telephone companies have challenged Section 215 orders. I’m surprised that no company (still!) has challenged a bulk order.

    Maybe the bulk orders come with a you cannot talk about this order as was given to secure email provider lavabit, or how they warrantless wire tapped the Al-Haramain Islamic Foundation. If it has anything to do with national security you can’t talk about it, and everything has to to with national security.

  3. Peterr says:

    @emptywheel: It would have been interesting, for instance, to have DiFi, Chambliss, Rogers, and Ruppensburger before FISC.

    Q: Did you, in fact, make the “Report on the NSA’s Bulk Collection Programs for USA PATRIOT Act Reauthorization” available to all members? [see pp. 24-25]

    A (DiFi): Yes.

    A (Rogers): Well . . . um . . . errr . . . No.

  4. Peterr says:

    @Peterr: Lacking that kind of Q&A, the question of recourse comes to mind, given that Rogers did not in fact make the report available to all members.

    It seems to me that a member who was denied access to this report would clearly have standing to come before the FISC and ask that they reconsider this ruling, based on the obvious failure of Rogers to follow through as the FISC mistakenly assumed was the case.

  5. Peterr says:

    Reading the order regarding the minimization procedures (#3) [pdf pp. 33-46], Clapper’s comments about the reasons for their failures to follow the FISCs order are pretty damning. Given what Clapper said the other day when those earlier docs were released, Reggie and Co. may want to consider contempt of court sanctions against him and his lawyers.

    The release of this opinion and these orders explains why Clapper tried to pre-emptively minimize their failures. The orders are pretty damn explicit about what should be done, presumably based on the testimony and representations about what could and would be done, and the failure of Clapper et al. to live up to their own representations is pretty disgusting.

    I wonder what the FISC will have to say about this the next time a DOJ attorney comes before them. “Given what Clapper said the other day, why should we believe you when you say ‘X is possible’ or ‘Y is not possible’?”

  6. greengiant says:

    @greengiant: What are “bulk orders” again? the business records orders obviously fly under the radar as reported,
    I see FISC says including but not limited to …. but not including substantive content of communications as defined by 18 U.S.C.* 2510 (8).
    Wonder which weasel words they snatch everything else under, substantive, content, communications, etc.
    Google already got a get out of jail card for snatching wi-fi signals, because they were in the ether. Haven’t they usurped the same authority for everything going through a switch?

  7. emptywheel says:

    @Peterr: Yes. I may propose to my Congressman that we challenge this, along with someone who voted FOR PATRIOT but would not now and a constituent.

    My Congressman and I may not agree on economic issues, but I think we might make a formidable team in the FISC. (Particularly before Judge Reggie, who has said nice things about me in the past.)

  8. emptywheel says:

    @greengiant: Bulk orders are anything you can get a subpoena for.

    So we know these phone records. We also know they’ve gotten hydrogen peroxide and acetone purchase records, and probably other explosive precursors (I’d be surprised if they hadn’t gotten at least some of the pressure cooker purchase records).

    Gun records would be fair game, as are health records, though the latter wouldn’t make sense to do in bulk, as far as we know.

    And credit card records.

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