Judge Will Review DOJ’s Withholding of More Section 215 Orders

Citing the significant public interest and past overclassification, the judge in EFF’s side of the Section 215 FOIA has ordered DOJ to cough up 5 (actually, I believe it is 6) orders, so she can review them in camera to see whether the government should release them.

The orders — with my speculation about what they are — are:

FISC opinion dated 8/20/2008 (6 pages)

I wrote about this opinion here. Two days before the order, the government submitted information on how it correlates different phone selectors for further chaining, which leads me to believe that’s the topic of the opinion. The government doesn’t want to release it because it is still using this “method,” which leads me to believe it would offer some insight on what it means that the automatic queries approved in 2012 and the connection-based chaining envisioned under the reformed program.

(2) FISC order dated 10/31/2006 (19 pages);

I believe this is actually two orders, one of 15 and one of 4 pages. If these pertain to the phone dragnet, one might pertain to compensation, another might either deal with violations the program was already experiencing (the next primary order imposed new regular reviews).

But it’s just as likely that these orders approve bulk collection for something else — perhaps financial records, for example.

(5) FISC orders dated 12/16/2005 (16 pages)
(3) FISC orders dated 2/17/2006 (17 pages)
(4) FISC orders dated 2/24/2006 (8 pages)

Given the timing (I’ve retained Judge Yvonne Gonzales Rogers’ numbering but adjusted order to match timing), I suspect these deal with the illegal wiretapping program. After all the first of these three orders was approved the day after the program was disclosed, during the period when PATRIOT Authority was extended after an true extension was filibustered.

Mind you, these are not supposed to deal with bulk collection. It may be they dealt with extending existing programs, providing feedback about what would not be acceptable bulk collection, or simply smaller orders affecting the most important part of the production.

As a reminder, there are 3 other known dragnet orders — from during the period when FISC was working through the violations in 2009 — the government didn’t even disclose to EFF. I wrote about those here.

7 replies
  1. bloopie2 says:

    The Atlantic has a neat article on the guy who designs the signage for airports – so that you can find your way quickly and correctly in an unfamiliar, rushed environment. The article spends a lot of time on the issue of what is his reward for doing a good job – the reward being, effectively, nothing. People never write to him to say “I found my way through the new Hartsfield terminal very easily, thank you!”


    Similarly, I assume that no one gives emptywheel a gold star when your “guesses” about document contents turn out to be correct, which helps to validate the rest of your important reporting. I hope you do feel rewarded, an internal sense of “Yes, I have done a good job.” We readers do appreciate your hard work (and I will never understand how you can remember and collate everything!) but we don’t often take the time to say thanks.


  2. bloopie2 says:

    The pendulum is starting to swing. The Supreme Court of Canada has ruled that police conducted an unconstitutional search when they used an IP address to obtain subscriber information from an Internet Service Provider without legal authorization. The Court also found Canada’s personal information protection law does not require ISPs to disclose subscriber information to law enforcement. In its analysis, the Court described information privacy as “control over, access to and use of information.” The Court stressed that “anonymity may be the foundation of a privacy interest that engages constitutional protection against unreasonable searches and seizures.”

  3. Bill Michtom says:

    Not to be too nitpicky (just enough), I think this would flow much better if “pages” came after “15” instead of “4”:

    “I believe this is actually two orders, one of 15 and one of 4 pages.”

    I, at least, was briefly left wondering, “15 what?”

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