USA Freedom Act Scofflaw Rosemary Collyer Claims She Can’t Find a Tech Expert

I say this a lot: for a privacy person, I’m actually pretty willing to defend the work of the so-called rubber stamp FISA Court. I’ve reported on some areas — such as location data — where FISC does or at least use to — require a higher standard of legal process than criminal courts. And I’ve described the diligent efforts various judges — Reggie Walton, especially, but also Colleen Kollar-Kotelly, Thomas Hogan and John Bates — have made to get NSA to follow the law. That doesn’t mean the court is the way the US should oversee programmatic spying, but it does a better job than usually given credit for.

Not so Rosemary Collyer, whom I predicted would be an awful presiding judge before she got the position. That prediction was proven right in this year’s shitty 702 reauthorization. I laid out at more length here how in that opinion, Collyer failed to use the levers Bates had created for the court to ensure the NSA follows the law.

But on top of failing to use the tools her predecessors put in place to ensure that FISA (and her court) remains the exclusive means to conduct domestic foreign intelligence surveillance, Collyer did something even more trouble. She failed to consult an amicus — or explain why she didn’t need to — in the process of approving back door searches to be used with collection she knew to include domestic communications. By failing to do that, I have argued, she broke the law, failing to fulfill the requirements of amicus review or explanation mandated by the USA Freedom Act.

I laid all that out here, too, in a post reporting on the request from a bunch of Senators that FISC appoint a technical amicus. As I noted, if Collyer isn’t going to consult amici, then having a tech amicus available isn’t going to help (and had she consulted the most obvious amicus earlier this year, Marc Zwillinger, he likely would have raised the import of the technical questions she seemed not to understand).

I didn’t realize it but Collyer responded late last month. (h/t Cryptome) She made a remarkably lame excuse for not appointing any tech amici.

We are now actively seeking technical experts who can also act as amici curiae. However, it has not proved to be a simple matter to find appropriate technical expertise. In considering technical advisors we must assess their abilities and qualifications, including their eligibility for security clearances and willingness to abide by attendant obligations regarding reporting of foreign contacts and pre-publication review (which is concerning to some potential candidates). As a result, we expect the process of finding a pool of appropriate technical amici to take some time to complete. Nonetheless, please be assured that this matter is very much on our minds and the court is engaged in continuing outreach.

As I pointed out in my first post on this, Steve Bellovin — who had been selected (and I believe cleared) to serve as technical advisor to PCLOB would be available given the effective demise of that body. Bellovin co-authored an important paper on precisely the issue Collyer dodged in her upstream opinion: where metadata ends and content begins in a packet.

So I’m pretty unsympathetic with Collyer’s claims the FISC simply can’t find appropriate technical experts, or couldn’t here.

Of course, had she not broken the law — had she at least appointed an amicus for April’s opinion — one of them might have offered up Bellovin’s name or a number of other cleared experts.

So it’s nice she’s paying lip service to the kind of technical expertise that might have helped her avoid the problems in this year’s 702 reauthorization.

But given her other actions, it’s hard to believe it is anything but lip service.

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.

6 replies
  1. Evangelista says:

    Rosemary Collyer has not broken the law.  The law is what is broken.  It is the law of the United States that is broken.  The Rosemary Collyers, like the John Robertss who appoint the Rosemary Collyers, because they will ignore legality to maintain the broken law system of the current United States, the Corrupt United States, to the standards of corruption those who control the corrupt usurper system and those who maintain it assign.  The corrupt maintainers see-saw and rocking-horse the faux-law they maintain, babbling blather as necessary to patina the corruption they maintain to provide cover for whatever it may be demanded to be permitted by its veneer of pseudo-authority painted over verbal profusion purposed to confusing.

    What you see is what current corrupt U.S. Law shows around the hollow core it covers, for not having the fundamental respectability that a solid legal core based on a foundation of principle is required to maintain.

    Having scrubbed the basic principles of U.S. Law base to make a law pseudo-law system flexible enough to permit the bending, twisting and pretzeling the unprincipled maintainers and handlers prefer, the manipulators of the current U.S. law system have given themselves means to usurp and cast aside the legal law of the United States and replace it.  Their actions constitute overthrow of the original Principle based and Constitutionally defined United States government system.

    Until the usurpers, from Roberts and those he bends law for, and down to Collyer, and through to all those who minion around her, with her and beneath her, in the judiciary branch and the legislative and executive are held to account and brought to trials and convicted of Treason against the Constitutionally defined United States government system they have overthrown, and have been hanged and then replaced with legitimate judiciary, legislative and executive personnel, willing to respect the Principles on which the Constitutional United States was founded, and reform the Constitutional government systems, all that the usurpers do is, and will be, to provide evidences on which they may eventually be tried and convicted.

    Those the usurpers victimize by their illegal ‘legal actions’ are victims of the usurpers’ illegal actions.  Their victimizations are evidences, to be used when a Principles-based and so Constitutional United States court system is restored and convened to try the usurpers.

      • Evangelista says:

        TomVet,

        I just like English because English-Speakers are, as demonstrated by mainstream media everyday playing them like yo-yos, fundamenally dumb, slow to connect to logic and impervious to reason and easily confused by rationality, while at the same time being amazingly quick to embellish fantastic fantasies from merest hits of television-take-off imageries.

        This combination makes them challenging targets for rational presentations.  The presentations do, to have any hope to connect to them, require considerable explanation;  all of the background they  lack for their having been educated by catechism and so needing ducks-in-a-row leading through baby-steps to logical conclusions that to the connectively capable of us are obvious.

        When one sees ones of them connect and the lights come on all the extra effort seems worth it.  When they fail and cry “Gobble-de-gook!  Gobble-de-gook!  You’re drowning me!”, well, that seems worth the effort, too;  assuming the ones like that really drown…

        [Hint:  Try reading and re-reading until you are able to follow the thread]

  2. earlofhuntingdon says:

    “Patina” is a noun. As one judge reminded Rumpole, who was as fond of new words as he was of Wordsworth, “There is such a thing as the English language; it is best to use it.” When in doubt, follow Will Strunk: omit needless words.

    If your point is that the law is made by those in power to keep them in power and to deny others the power to compete with them, you could say it more simply. Otherwise, you risk sounding like a troll and might remain unread.

    • Evangelista says:

      earlofhuntington,

      a patina is a thing, wherefore, to the grammarian, the word would be a noun.  patina’d is a verb, a word meaning to have a patina put upon (something), even if (some) grammarians might cringe (or be found to be cringed) by the ‘very idea’.  It is for such variations as these lighting up their hemorrhoids so their backsides look like parlour-house porches that makes grammarians fun to lead on.

      Rumpole, if I recall correctly (also today, “iirc”) is a ficticious character in some pseudo-legal genre series, about as correlevant to real law, in Britain, as Perry Mason in the USA.  The quoting of either one in real legal procedings context is best contained to lost causes, since, in both cases the effect is to light up judges as if they were grammarians aglow in outrage.

      The point I was attempting to present, in succinct phrasing, was that because “law…made by those in power [is] to keep them in power and to deny others the power…” systems of law need to be controlled by, and held to, principles, and that doing this requires certain consequences where “those in power” abuse the powers to make law to keep themselves in power against the controls the principles upon which the law system the abusers abuse is supposed to be foundationed, the law system that the empowered are responsible to maintain on its principles foundation.

      The law system of the current United States is where it is for ones in positions of power cantilevering the law off from the principles of United States Law foundations, and then cutting loose to float their own manufactured system of law in a sea of corruption.

      Unless we are able to bring our system of law back to its foundations, which will require sinking the “rafts” of corrupt powers’ “floated law”, and bringing to account and justice the corrupters and their subservient powers, our whole system is going to go down.

      If sounding such warnings and pointing out what needs to be done to avoid pending destruction is trollish, then all the prophets have been trolls.  I will be in good company, even if in bad name among the idle masses.

       

  3. Cujo359 says:

    Bellovin’s book “Firewalls and Internet Security” is on my bookshelf. It’s a good guide on the subject. I’d say he qualifies as an expert.

     

    Of course, if you can’t find someone with a clearance and expertise in IT security and privacy, you’re probably not looking very hard. DoJ must have lots of them, as does DoD, and all you need to do is spend some time perusing IT security symposium adverts to see who else might be available.

     

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