[Photo: National Security Agency via Wikimedia]

If a Tech Amicus Falls in the Woods but Rosemary Collyer Ignores It, Would It Matter?

Six senators (Ron Wyden, Pat Leahy, Al Franken, Martin Heinrich, Richard Blumenthal, and Mike Lee) have just written presiding FISA Court judge Rosemary Collyer, urging her to add a tech amicus — or even better, a full time technical staffer — to the FISA Court.

The letter makes no mention of Collyer’s recent consideration of the 702 reauthorization certificates, nor even of any specific questions the tech amicus might consider.

That’s unfortunate. In my opinion, the letter entirely dodges the real underlying issue, at least as it pertains to Collyer, which is her unwillingness to adequately challenge or review Executive branch assertions.

In her opinion reauthorizing Section 702, Collyer apparently never once considered appointing an amicus, even a legal one (who, under the USA Freedom structure, could have suggested bringing in a technical expert). She refused to do so in a reconsideration process that — because of persistent problems arising from technical issues — stretched over seven months.

I argued then that that means Collyer broke the law, violating USA Freedom Act’s requirement that the FISC at least consider appointing an amicus on matters raising novel or significant issues and, if choosing not to do so, explain that decision.

In any case, this opinion makes clear that what should have happened, years ago, is a careful discussion of how packet sniffing works, and where a packet collected by a backbone provider stops being metadata and starts being content, and all the kinds of data NSA might want to and does collect via domestic packet sniffing. (They collect far more under EO 12333.) As mentioned, some of that discussion may have taken place in advance of the 2004 and 2010 opinions approving upstream collection of Internet metadata (though, again, I’m now convinced NSA was always lying about what it would take to process that data). But there’s no evidence the discussion has ever happened when discussing the collection of upstream content. As a result, judges are still using made up terms like MCTs, rather than adopting terms that have real technical meaning.

For that reason, it’s particularly troubling Collyer didn’t use — didn’t even consider using, according to the available documentation — an amicus. As Collyer herself notes, upstream surveillance “has represented more than its share of the challenges in implementing Section 702” (and, I’d add, Internet metadata collection).

At a minimum, when NSA was pitching fixes to this, she should have stopped and said, “this sounds like a significant decision” and brought in amicus Amy Jeffress or Marc Zwillinger to help her think through whether this solution really fixes the problem. Even better, she should have brought in a technical expert who, at a minimum, could have explained to her that SCTs pose as big a problem as MCTs; Steve Bellovin — one of the authors of this paper that explores the content versus metadata issue in depth — was already cleared to serve as the Privacy and Civil Liberties Oversight Board’s technical expert, so presumably could easily have been brought into consult here.

That didn’t happen. And while the decision whether or not to appoint an amicus is at the court’s discretion, Collyer is obligated to explain why she didn’t choose to appoint one for anything that presents a significant interpretation of the law.

A court established under subsection (a) or (b), consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time–

(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate;

For what it’s worth, my guess is that Collyer didn’t want to extend the 2015 certificates (as it was, she didn’t extend them as long as NSA had asked in January), so figured there wasn’t time. There are other aspects of this opinion that make it seem like she just gave up at the end. But that still doesn’t excuse her from explaining why she didn’t appoint one.

Instead, she wrote a shitty opinion that doesn’t appear to fully understand the issue and that defers, once again, the issue of what counts as content in a packet.

Without even considering an amicus, Collyer for the first time affirmatively approved the back door searches of content she knows will include entirely domestic communications, effectively affirmatively permitting the NSA to conduct warrantless searches of entirely domestic communications, and with those searches to use FISA for domestic surveillance. In approving those back door searches, Collyer did not conduct her own Fourth Amendment review of the practice.

Moreover, she adopted a claimed fix to a persistent problem — the collection of domestic communications via packet sniffing — without showing any inkling of testing whether the fix accomplished what it needed to. Significantly, in spite of 13 years of problems with packet sniffing collection under FISA, the court still has no public definition about where in a packet metadata ends and content begins, making her “abouts” fix — a fix that prohibits content sniffing without defining content — problematic at best.

I absolutely agree with these senators that the FISC should have its own technical experts.

But in Collyer’s case, the problem is larger than that. Collyer simply blew off USA Freedom Act’s obligation to consider an amicus entirely. Had she appointed Marc Zwillinger, I’m confident he would have raised concerns about the definition of content (as he did when he served as amicus on a PRTT application), whether or not he persuaded her to bring in a technical expert to further lay out the problems.

Collyer never availed herself of the expertise of Zwillinger or any other independent entity, though. And she did so in defiance of the intent of Congress, that she at least explain why she felt she didn’t need such outside expertise.

And she did so in an opinion that made it all too clear she really, really needed that help.

In my opinion, Collyer badly screwed up this year’s reauthorization certificates, kicking the problems created by upstream collection down the road, to remain a persistent FISA problem for years to come. But she did so by blowing off the clear requirement of law, not because she didn’t have technical expertise to rely on (though the technical expertise is probably necessary to finally resolve the issues raised by packet sniffing).

Yet no one but me — not even privacy advocates testifying before Congress — want to call her out for that.

Congress already told the FISA court they “shall” ask for help if they need it. Collyer demonstrably needed that help but refused to consider using it. That’s the real problem here.

I agree with these senators that FISC badly needs its own technical experts. But a technical amicus will do no good if, as Collyer did, a FISC judge fails to consult her amici.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

10 replies
  1. DannyD says:

    Two thoughts while reading this.
    Firstly, I’d love to see more interviews and/or moderated Q&A with some of the folks making these decisions in Congress and the courts here. I remember reading some extended comments from Ron Wyden here, and also some feedback comments about Collyer’s recent questioning by one of the congressional committees. More Q&A, as well as some education of our congress critters would be great to see. Perhaps staying ignorant of the actual technical terms is really their goal though.

    Secondly, If Collyer’s decision is faulty and in violation of the law…can her decision be considered still ‘standing’? What would take it’s place? In other words, if it’s flawed and in violation of the law because she didn’t consider appointing an outside amicus, would that make collection under section 702 now illegal?

    • Evangelista says:

      DannyD,

      Because the law in the Constitutional United States foundations on a Principle, defined “Presumption of Innocence”, which means presumption that the individual acts rationally and reasonably and with good faith and good intentions in all interactions, in the Constitutional United States trials are not of guilt or innocence per se, but are determinations if the alleged malfactor did or did not behave reasonably, rationally, in good faith and with good intentions in the instance carried into a court.  The presumption is that the person did, wherefore the onus of proving is on the accuser(s).  Where a violation of law is asserted (by the accusers), because of the presumption that the accused acted responsibly, violating no laws, the law asserted is on trial.  If a law is unable to proof reasonable and applicable (and “necessary and proper” [Article 1, Section 8]) it is moot and no law.  Thus, every individual case may challenge applicability of a law to the situation of the case and as to necessity and propriety (both jury duties to determine), as well as legality, in existence, scope, form and Constitutional permissibility (judicial duty to determine).

      Thus, laws made half-assedly, by Congress, may be challenged for that, and non-law regulations, made by bureaucratic agencies, which may be challenged on all grounds (reason, need, appropriateness, legality, applicability in situ, etc.), as well as for being made half-assedly, may be challenged on all of those grounds, as well as on grounds the regulations do not apply to the individual, who must, because Presumption of Innocence requires presumption of innocence from joining a group covered by a proprietary regulation (all regulations not made by legislations and not, for being necessary and proper, and Constitutional, for universal application to all of the public and all only incidentally engaging in applicable regulated activities as “end-users”), be proved to be engaged in the activities the regulations are applicable to.

      That said, the current United States is not administered in accord to Constitutional regulation.  Unconstitutional forms, jurisdictions and “rules” for applications, all unConstitutional, all based on presumption of guilt giving “regulators” authorities to “regulate” the People as authoritarians having dominating powers, based on Commercial Law forms and example have been imposed in usurpation of the Constitution by usurpers who have, by these actions, overthrown the Constitutional United States.   This is a form of making war against the Constitution of the United States, and the United States established by the U.S. Constitution, which means it is Treason, wherefore, when the usurping system chokes the People, and itself, on its regulations, the perpetrators (still alive) and perpetuators (then living) will be subject to penalties for Treason.

      Meanwhile, those who have physical powers to coercively impose their “law” are able to do so by coercion.  This means the answer to your question is, for the time being, anything that can be forced is, for the time being, “legal”.

  2. SpaceLifeForm says:

    It may matter if there is a bear nearby.

    Devils advocate: What if the FISC Judge is dealing with something that is so super-duper secret that the Judge would not want to even slightly discuss ‘stuff’ with someone that has clearance?

    • Evangelista says:

      SpaceLifeForm,

      As the Preamble to the United States Constitution states, “We the People of the United States…do ordain and establish…” the Constitutional United States.  This means that the ultimate authority in all cases and for all determinations are the individual People of he United States.  Those administering government functions in the United States government are, in the Constitutional United States, acting on behalf of the People, at the sufferance of the People, as their employees.  This means those in government, including specialists, like judges, are in service to the People, and so are servants to the People.  As servants to the People, the servants in government are not in positions to, or entitled to, hold secrets from their employers, the People.

      Thus, in a Constitutional United States your question would be moot:  All secrets would have to be entrusted to the People, which would preclude their being ‘secret’.

      The current government of the United States, by its acts of keeping secrets from the People of the United States are proofing themselves to be violating the laws and forms for laws imposed by the U.S. Constitution, and so to be in violation of the law of the Constitutional United States, or to have treasonously overthrown the Constitution and Constitutional United States to impose a usurper form of government more convenient to them, and empowering them in violation of the restrictions emplaced by the U.S. Constitution.

      In their usurper United States there is no law but their law, which means that until the reckoning, when the Constitutional authority of the Constitutional United States is restored, the law from day to day, hour to hour, moment to moment, is whatever they may, and are able to, coerce, none of which, however, is legitimate, or legal, law.

      • SpaceLifeForm says:

        I have ZERO disagreement with your points.

        None. Zilch. Nada.

        But what if the FISC Judge has been snowed?

        How many judges really understand IT?

        I can count on one hand. 9th district.

    • Evangelista says:

      The “We were just following orders.” defence.

      In fact, Mitchel and Jessen would equate to the suppliers of poison gas.  Their legal liability would depend on their knowledge of what the CIA intended to do with the product they provided.

      In the Nazi-era the providers of Zyklon-B provided it for “vermin control”, the vermin to be controlled being specified lice and fleas, with the stuff to be used to fumigate clothing and bedding and personal effects.  It was not approved, or supplied to fumigate persons, nor were Jews listed on the label among the “vermin” the fumigant was to be used against.

      Mitchel and Jessen supplied torture techniques for specific use against the human beings their techniques were used against.  Unless they get a jury of all CIA agent-torturers it is unlikely thei argument will get them off.

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