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Government Recently Released Information Proving Larry Klayman Has Standing

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As I noted, the DC Circuit Court reversed Judge Richard Leon’s injunction against the phone dragnet. The judges disagreed on whether Larry Klayman had standing — because he is a Verizon Wireless but not Verizon landline subscriber, which had been the only thing confirmed by the government. All agreed he had not shown he had the high certainty of standing required to uphold an injunction against the program. But the per curium opinion did agree that the case has not been mooted, because by immediately restarting the bulk program after the passage of USA F-ReDux, the government showed that the harm could recur.

That’s important, because information proving that Klayman does have standing has recently been released in an official (albeit probably inadvertent) release.

Part of the IG Reports on the phone dragnet Charlie Savage obtained by suing shows that — at least in 2010 — the Primary Order for the phone dragnet went to AT&T, Sprint, Verizon’s subsidiaries (the former MCI part of Verizon’s business, which I believe is its backbone), and “Cellco Partnership d/b/a Verizon Wireless.”

I’ll say more about what I think this really means in a later post — and why I think the suit against bulk surveillance needs to be, and can be, tweaked somewhat to ensure standing.

But for the moment, know that for at least one 90 day period in 2010, Verizon Wireless as well as Verizon’s landline was ordered to turn over phone records.

DC Circuit Reverses Judge Leon Order Overturning Phone Dragnet

In a per curium decision, a DC Circuit panel including Janice Rogers Brown, Stephen Williams, and David Sentelle has reversed Judge Richard Leon’s decision preliminary injunction against the phone dragnet. They reversed on standing (which I’ll return to) but found the issue remains ripe.

This will be my working thread.

The panel pointed to the immediate resumption of the dragnet after USA F-ReDux to argue that the alleged violation could recur.

Cessation of a challenged practice moots a case only if “there is no reasonable expectation . . . that the alleged violation will recur.” Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (quotations and citations omitted). Here, any lapse in bulk collection was temporary. Immediately after Congress acted on June 2 the FBI moved the FISC to recommence bulk collection, United States’ Mem. of Law, In re Application of the FBI, No. BR 15-75 (FISC, filed Jun. 2, 2015), and the FISC confirmed that it views the new legislation as effectively reinstating Section 215 for 180 days, and as authorizing it to resume issuing bulk collection orders during that period.

Brown reversed because Klayman had shown it likely his records were collected, but had not reached the bar for a preliminary injunction.

However, plaintiffs are Verizon Wireless subscribers and not Verizon Business Network Services subscribers. Thus, the facts marshaled by plaintiffs do not fully establish that their own metadata was ever collected.

[snip]

Contrary to the assertions of my colleagues, these facts bolster plaintiffs’ position: where the Clapper plaintiffs relied on speculation and conjecture to press their claim, here, plaintiffs offer an inference derived from known facts.

However, the burden on plaintiffs seeking a preliminary injunction is high. Plaintiffs must establish a “substantial likelihood of success on the merits.” Sottera, Inc., 627 F.3d at 893. Although one could reasonably infer from the evidence presented the government collected plaintiffs’ own metadata, one could also conclude the opposite. Having barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction. [citation omitted]

Williams reversed because he doesn’t think Klayman has standing. He points to Amnesty v Clapper to suggest he has only speculative standing.

Plaintiffs’ contention that the government is collecting data from Verizon Wireless (a contention that the government neither confirms nor denies, Gov’t’s Br. at 38-39), depends entirely on an inference from the existence of the bulk collection program itself. Such a program would be ineffective, they say, unless the government were collecting metadata from every large carrier such as Verizon Wireless; ergo it must be collecting such data. Appellee’s Br. 27-28. This inference was also the district judge’s sole basis for finding standing. Klayman v. Obama, 957 F. Supp. 2d 1, 27 & n.36 (2013).

Yet the government has consistently maintained that its collection “never encompassed all, or even virtually all, call records and does not do so today.”

[snip]

Here, the plaintiffs’ case for standing is similar to that rejected in Clapper. They offer nothing parallel to the Clapper plaintiffs’ evidence that the government had previously targeted them or someone they were communicating with (No. 3 above). And their assertion that NSA’s collection must be comprehensive in order for the program to be most effective is no stronger than the Clapper plaintiffs’ assertions regarding the government’s motive and capacity to target their communications (Nos. 2 & 4 above).

[snip]

Accordingly, I find that plaintiffs have failed to demonstrate a “substantial likelihood” that the government is collecting from Verizon Wireless or that they are otherwise suffering any cognizable injury. They thus cannot meet their burden to show a “likelihood of success on the merits” and are not entitled to a preliminary injunction.

Sentelle would boot the case entirely because Klayman doesn’t have standing.

Like Judge Williams, I believe that the failure to establish the likelihood of success depends at least in the first instance on plaintiffs’ inability to establish the jurisdiction of the court. I also agree with Judge Williams that plaintiffs have not established the jurisdiction of the court. That being the case, I would not remand the case for further proceedings, but would direct its dismissal.

[snip]

Plaintiffs have not demonstrated that they suffer injury from the government’s collection of records. They have certainly not shown an “injury in fact” that is “actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc., 528 U.S. at 180. I agree with the conclusion of my colleagues that plaintiffs have not shown themselves entitled to the preliminary injunction granted by the district court. However, we should not make that our judicial pronouncement, since we do not have jurisdiction to make any determination in the cause. I therefore would vacate the preliminary injunction as having been granted without jurisdiction by the district court, and I would remand the case, not for further proceedings, but for dismissal.

Why DOJ Withheld the Correlations Opinion: The DC Circuit’s Mosaic

On January 9, 2014, the government appealed Judge Richard Leon’s decision finding the phone dragnet in Klayman v. Obama to the DC Circuit.

The DC Circuit, of course, is the court that issued US. v Maynard in 2010, the first big court decision backing a mosaic theory of the Fourth Amendment. And while the panel that ultimately heard the Klayman appeal included two judges who voted to have the entire circuit review Maynard, the circuit precedent in Maynard includes the following statement.

As with the “mosaic theory” often invoked by the Government in cases involving national security information, “What may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene.” CIA v. Sims, 471 U.S. 159, 178 (1985) (internal quotation marks deleted); see J. Roderick MacArthur Found. v. F.B.I., 102 F.3d 600, 604 (D.C. Cir. 1996). Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one‘s not visiting any of these places over the course of a month. The sequence of a person‘s movements can reveal still more; a single trip to a gynecologist‘s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.* A person who knows all of another‘s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

With that precedent, the DC Circuit is a particularly dangerous court for the Administration to review a dragnet that aspires to collect all Americans’ call records and hold them for 5 years.

On March 31, 2014, the government submitted a motion for summary judgment in EFF’s FOIA for Section 215 documents with an equivalent to the ACLU. One of the only things the government specifically withheld — on the grounds that it described a dragnet analysis technique it was still using — was an August 20, 2008 FISC opinion authorizing the technique in question, which it did not name.

Two days before FISC issued that August 20, 2008 opinion, the NSA was explaining to the court how it made correlations between identifiers to contact chain on all those identifiers. Two days is about what we’ve seen for final applications before the FISC rules on issues, to the extent we’ve seen dates, suggesting the opinion is likely about correlations.

Here’s how the government described correlations, in various documents submitted to the court in 2009.

They define what a correlated address is (and note, this passage, as well as other passages, do not limit correlations to telephone metadata — indeed, the use of “address” suggests correlations include Internet identifiers).

The analysis of SIGINT relies on many techniques to more fully understand the data. One technique commonly used is correlated selectors. A communications address, or selector, is considered correlated with other communications addresses when each additional address is shown to identify the same communicant as the original address.

They describe how the NSA establishes correlations via many means, but primarily through one particular database.

NSA obtained [redacted] correlations from a variety of sources to include Intelligence Community reporting, but the tool that the analysts authorized to query the BR FISA metadata primarily used to make correlations is called [redacted].

[redacted] — a database that holds correlations [redacted] between identifiers of interest, to include results from [redacted] was the primary means by which [redacted] correlated identifiers were used to query the BR FISA metadata.

They make clear that NSA treated all correlated identifiers as RAS approved so long as one identifier from that user was RAS approved.

In other words, if there: was a successful RAS determination made on any one of the selectors in the correlation, all were considered .AS-a. ,)roved for purposes of the query because they were all associated with the same [redacted] account

And they reveal that until February 6, 2009, this tool provided “automated correlation results to BR FISA-authorized analysts.” While the practice was shut down in February 2009, the filings make clear NSA intended to get the automated correlation functions working again,

While it’s unclear whether this screen capture describes the specific database named behind the redactions in the passages above, it appears to describe an at-least related process of identifying all the equivalent identities for a given target (in this case to conduct a hack, but it can be used for many applications).

Correlations

If I’m right that the August 20, 2008 memo describes this correlations process, it means one of the things the government decided to withhold from EFF and ACLU (who joined Klayman as amici) after deciding to challenge Leon’s decision in a court with a precedent of recognizing a mosaic theory of the Fourth Amendment was a document that shows the government creates a mosaic of all these dragnets.

It’s not just a phone dragnet (and it’s not just US collected phone records). It’s a domestic and internationally-collected phone and Internet and other metadata dragnet, and after that point, if it sucks you into that dragnet, it’s a financial record and other communications dragnet as well (for foreigners, I imagine, you get sucked in first, without an interim stage).

Even though both Janice Rogers Brown and David Sentelle voted to reconsider the mosaic theory in 2010, Sentelle’s questions seemed to reflect a real concern about it. Unsurprisingly, given that he authored a fairly important opinion in US v Quartavious Davis holding that the government needed a warrant to get stored cell site location data while he was out on loan to the 11th Circuit earlier this year, his questions focused on location.

Sentelle: What information if any is gathered about the physical location of wireless callers, if anything? Cell tower type information.

Thomas Byron: So Judge Sentelle, what is not included. Cell tower information is not included in this metadata and that’s made clear in the FISC orders.  The courts have specified that it’s not included.

Note how Byron specified that “cell tower information is not included in this metadata”? Note how he also explains that the FISC has specified that CSLI is not included, without explaining that that’s only been true for 15 months (meaning that there may still be incidentally collected CSLI in the databases). Alternately, if the NSA gets cell location from the FBI’s PRTT program (my well-educated guess is that the FBI’s unexplained dragnet — the data from which it shares with the NSA — is a Stingray program), then that data would get analyzed along with the call records tied to the same phones, though it’s not clear that this location data would be available from the known but dated metadata access, which is known only to include Internet, and EO 12333 and BRFISA phone metadata).

Stephen Williams seemed even more concerned with the Maynard precedent, raising it specifically, and using it to express concern about the government stashing 5 years of phone records.

Williams: Does it make a significant difference that these data are collected for a five year period.

Byron’s response was particularly weak on this point, trying to claim that the government’s 90-day reauthorizations made the 5 years of data that would seem to be clearly unacceptable under Maynard (which found a problem with one week of GPS data) acceptable.

Byron: It’s not clear in the record of this case how much time the telephone companies keep the data but the point is that there’s a 90 day period during which the FISC orders are operative and require the telephone companies to turn over the information from their records to the government for purposes of this program. Now the government may retain it for five years but that’s not the same as asking whether the telephone company must keep it for five years.

Williams: How can we discard the five year period that the government keeps it?

Williams also, later, asked about what kind of identities are involved, which would also go to the heart of the way the government correlates identities (and should warrant questions about whether the government is obtaining Verizon’s supercookie).

Byron expressed incredible (as in, not credible) ignorance about how long the phone companies keep this data; only AT&T keeps its data that long. Meaning the government is hoarding records well beyond what users should have an expectation the third party in question would hoard the data, which ought to eliminate the third party justification by itself.

Janice Rogers Brown mostly seemed to want things to be easy, one bright line that cops could use to determine what they could and could not obtain. Still, she was the only one to raise the other kinds of data the government might obtain.

JRB: Does it matter to whom the record has been conveyed. For instance, medical records? That would be a third party’s record but could you draw the same line.

Byron: Judge Brown, I’m glad you mentioned this because it’s really important to recognize in the context of medical records just as in the context, by the way, of telephone records, wiretap provisions, etcetera, Congress has acted to protect privacy in all of these areas. For example, following the Miller case, Congress passed a statute governing the secrecy of bank records. Following the Smith case, Congress passed a statute governing wiretaps. HIPAA, in your example, Judge Brown, would govern the restrictions, would impose restrictions on the proper use of medical information. So too here, FISA imposes requirements that are then enforced by the Foreign Intelligence Surveillance Court. And those protections are essential to understanding the program and the very limited intrusion on any privacy interest.

While Byron had a number of very misleading answers, this probably aggravated me the most. After all, the protections that Congress created after the Miller case and the Smith case were secretly overridden by the FISC in 2008 and 2010, when it said limitations under FISA extended for NSLs could also be extended for 215 orders. And we have every reason the government could, if not has, obtained medical records if not actual DNA using a Section 215 order; I believe both would fall under a national security exception to HIPAA. Thus, whatever minimization procedures FISC might impose, it has, at the same time blown off precisely the guidelines imposed by Congress.

The point is, all three judges seemed to be thinking — to a greater or lesser extent — of this in light of the Maynard precedent, Williams particularly so. And yet because the government hid the most important useful evidence about how they use correlations (though admittedly the plaintiffs could have submitted the correlations data, especially in this circuit), the legal implications of this dragnet being tied to other phone and Internet dragnets and from there more generalized dragnets never got discussed.

Don’t get me wrong. Larry Klayman likely doomed this appeal in any case. On top of being overly dramatic (which I think the judges would have tolerated), he misstated at least two things. For example, he claimed violations reported at the NSA generally happened in this program alone. He didn’t need to do that. He could have noted that 3,000 people were dragnetted in 2009 without the legally required First Amendment review. He could have noted 3,000 files of phone dragnet data were not destroyed in timely fashion, apparently because techs were using the real data on a research server. The evidence to show this program has been — in the past at least — violative even of the FISC’s minimization requirements is available.

Klayman also claimed the government was collecting location data. He got caught, like a badly prepared school child, scrambling for the reference to location in Ed Felten’s declaration, which talked about trunk location rather than CSLI.

In substantive form, I don’t think those were worse than Byron’s bad evasions … just more painful.

All that said, all these judges — Williams in particular — seemed to want to think of this in terms of how it fit in a mosaic. On that basis, the phone dragnet should be even more unsustainable than it already is. And some of that evidence is in the public record, and should have been submitted into the record here.

Still, what may be the most important part of the record was probably withheld, by DOJ, after DOJ decided it was going to appeal in a circuit where that information would have been centrally important.

The Klayman Hearing: Everyone Can Stand If DOJ Has the Backbone

Update: See this post, which explains that I’m wrong about the timing of Verizon’s different approach to production than AT&T. And that difference precedes Verizon’s withdrawal from the FBI call record program in 2009 — it goes back to 2007.

I’m finally getting around to listening to the Klayman v. Obama hearing from the other day, which you can listen to here. I’ll have more to say on it later. But my impression is that — because of the incomplete reporting of a bunch of NSA beat reporters — Klayman may be improperly thrown out on standing because he is only a Verizon cell customer, not a Verizon landline customer.

Back on June 14, 2013, the WSJ reported that Verizon Wireless and T-Mobile don’t turn over records under the phone dragnet, but that the government obtains those records anyway as they travel across the domestic backbone, largely owned by AT&T and Verizon Business Services.

The National Security Agency’s controversial data program, which seeks to stockpile records on all calls made in the U.S., doesn’t collect information directly from T-Mobile USA and Verizon Wireless, in part because of their foreign ownership ties, people familiar with the matter said.

The blind spot for U.S. intelligence is relatively small, according to a U.S. official. Officials believe they can still capture information, or metadata, on 99% of U.S. phone traffic because nearly all calls eventually travel over networks owned by U.S. companies that work with the NSA.

[snip]

Much of the U.S.’s telecom backbone is owned by two companies: AT&T and Verizon Business Network Services Inc., a U.S. subsidiary of Verizon Communications that it views as a separate network from its mobile business. It was the Verizon subsidiary that was named in the FISA warrant leaked by NSA contractor Edward Snowden to the Guardian newspaper and revealed last week.

When a T-Mobile or Verizon Wireless call is made, it often must travel over one of these networks, requiring the carrier to pay the cable owner. The information related to that transaction—such as the phone numbers involved and length of call—is recorded and can then be passed to the NSA through its existing relationships.

Then, on February 7, 2014, the WSJ (and 3 other outlets) reported something entirely different — that the phone dragnet only collects around 20% of phone records (others reported the number to be a higher amount).

The National Security Agency’s collection of phone data, at the center of the controversy over U.S. surveillance operations, gathers information from about 20% or less of all U.S. calls—much less than previously thought, according to people familiar with the NSA program.

The program had been described as collecting records on almost every phone call placed in the U.S. But, in fact, it doesn’t collect records for most cellphones, the fastest-growing sector in telephony and an area where the agency has struggled to keep pace, the people said.

Over the course of 8 months, the WSJ’s own claim went from the government collecting 99% of phone data (defined as telephony) to the government collecting 20% (probably defining “call data” broadly to include VOIP), without offering an explanation of what changed. And it was not just its own earlier reporting with which WSJ conflicted; aspects of it also conflicted with a lot of publicly released primary documents about what the program has done in the past. Nevertheless, there was remarkably little interest in explaining the discrepancy.

I’m getting a lot closer to being able to explain the discrepancy in WSJ’s reporting. And if I’m right, then Larry Klayman should have standing (though I’m less certain about Anna Smith, who is appealing a suit in the 9th Circuit).

I’m fairly certain (let me caveat: I think this is the underlying dynamic; the question is the timing) the discrepancy arises from the fact that, for the first time ever, on July 19, 2013 (a month after the WSJ’s first report) the FISA Court explicitly prohibited the collection of Cell Site Location Information.

Furthermore, this Order does not authorize the production of cell site location information (CSLI).

We’ve learned several details since February that puts this in context.

First, the NSL IG Report revealed that one of the three providers who had been part of FBI’s onsite call records access from 2003 to 2006 did not renew the contract for that program in 2009.

Company A, Company B, and Company C are the three telephone carriers described in our Exigent Letters Report that provided telephone records to the TCAU in response to exigent letters and other informal requests between 2003 and 2006. As described in our Exigent Letters Report, the FBI entered into contracts with these carriers in 2003 and 2004, which required that the communication service providers place their employees in the TCAU’s office space and give these employees access to their companies’ databases so they could immediately service FBI requests for telephone records. Exigent Letters Report, 20. As described in the next chapter, TCAU no longer shares office space with the telephone providers. Companies A and C continue to serve FBI requests for telephone records and provide the records electronically to the TCAU. Company B did not renew its contract with the FBI in 2009 and is no longer providing telephone records directly to the TCAU. Company B continues to provide telephone records in response to NSL requests issued directly by the field without TCAU’s assistance.

The original WSJ, in retrospect, makes it fairly clear that Company B is Verizon (though I believe it provides the wrong explanation otherwise for Verizon’s inability to provide records, that it was partly foreign owned–though admittedly it only claims to be providing part of the explanation).

Unlike Sprint and AT&T, [Verizon Wireless and T-Mobile] also don’t perform classified work for the government. Such contracts require secure facilities that make cooperating with NSA programs simpler, people familiar with the matter said.

Verizon Associate General Counsel Michael Woods’ response to questions at a hearing earlier this year made it even more clear. He said that Verizon does not keep call detail records — as distinct from billing records — long at all (and they only keep billing records on the landline side for 18 months).

The contract with TCAU, the NSL IG Report (and the earlier Exigent Letters report) makes clear, would require providers to keep records for longer to facilitate some bells and whistles. That’s a big part of what the “make cooperating with NSA programs simpler” is likely about. Therefore, Verizon must be the provider that stopped retaining records in 2009 for the purpose of the government (It also just so happens to be the provider that doesn’t need the government cash as part of its business model). I suspect that TCAU remains closely related to Hemisphere, which may be why when I asked FBI about its participation in that unclassified project, FBI refused to comment at all.

If all that’s right, then AT&T and Sprint retain their call detail records because they have signed a contract with the government to do so. Verizon does not.

That means, at least since 2009, Verizon has been relying on actual call detail records to fulfill its obligations under Section 215, not a database that makes it easier to pull out precisely what the government wants (indeed, I suspect the end of the contract created the problems where Verizon was providing entirely foreign calls along with its domestic calls starting with the May 29, 2009 order).  The business records that Verizon had on hand was a CDR that, in the case of cell phones, necessarily included CSLI.

Verizon is still (the Verizon-specific language remains in the dragnet orders, and they challenged the first order after Leon’s decision in this case) providing records of landline calls that traverse its backbone.

But when FISC made it a violation — rather than just overproduction they otherwise would have and have, in both this and other programs, approved — to provide CSLI, and made that public, it gave Verizon the opportunity to say it had no way to provide the cell data legally.

That’s sort of what the later WSJ report says, though it doesn’t explain why this would be limited in time or why NSA would have a problem when it collects CDRs internationally with CSLI with no problem.

Moreover, the NSA has been stymied by how to remove location data—which it isn’t allowed to collect without getting additional court approval—from U.S. cellphone records collected in bulk, a U.S. official said.

I’m not sure whether it’s the case that Verizon couldn’t very easily pull that CSLI off or not. But I do suspect — particularly for a program that offers no compensation — that Verizon no longer had a legal obligation to. (This probably answers, by the way, how AT&T and Sprint are getting paid here: they’re being paid to keep their CDRs under the old TCAU contracts with the FBI.)

The government repeats over and over that they’re only getting business records the companies already have. Verizon has made it clear it doesn’t have cell call detail records without the location attached. And therefore, I suspect, the government lost its ability to make Verizon comply. That is also why, I suspect, the President claims he needs new legislation to make this happen: because he needs language forcing the providers to provide the CDRs in the form the government wants it in.

If I’m right, though — that the government had 99% coverage of telephony until Claire Eagan specifically excluded cell location — then Klayman should have standing. That’s because Richard Leon’s injunction not only prohibited the government from collecting any new records from Klayman, he also required the government to “destroy any such metadata in its possession that was collected through the bulk collection program.”

Assuming Verizon just stopped providing cell data in 2013 pursuant to Eagan’s order, then there would still be over 3 years of call records in the government’s possession available for search. Which would mean he would still be exposed to the government’s improper querying of his records.

It is certainly possible that Verizon stopped providing cell data once it ended its TCAU contact in 2009. If that’s the case, the government’s hasty destruction of call records in March would probably have eliminated the last of the data it had on Klayman (though not on ACLU, since ACLU is a landline customer as well as a wireless customer).

But if Verizon just stopped handing over cell records in 2013 after Claire Eagan made it impossible for the government to force Verizon to comply with such orders, then Klayman — and everyone else whose records transited Verizon’s backbone — should still have standing.

Update: I provided this further explanation to someone via email.

I should have said this more clearly in the post. But the only way everyone is correct: including WSJ in June, Claire Eagan’s invocation of “substantially all” in July, the PRG’s claims they weren’t getting as much as thought in December, and WSJ’s claims they weren’t much at all in February, is if Verizon shut down cell collection sometime during that period. The July order and the aftermath would explain that.

I suspect the number is now closer to 50-60% of US based telephony records within the US (remember, on almost all international traffic, there should be near duplication, because they’re collecting that at scale offshore), but there’s also VOIP and other forms of “calls” and texts that they’re not getting, which is how you get down to the intentionally alarmist 20%. One reason I think Comey’s going after Apple is because iMessage is being carved out, and Verizon is already pissed, so he needs to find a way to ensure that Apple doesn’t get a competitive advantage over Verizon by going through WiFi that may not be available to Verizon because it is itself the backbone. But if you lose both Verizon’s cell traffic AND any cell traffic they carry, you lose a ton of traffic.
That gets you to the import of the FBI contract. It is a current business purpose of AT&T and Sprint to create a database that they can charge the FBI to use to do additional searching, including location data and burner phones and the like. AT&T’s version of this is probably Hemisphere right now (thus, in FBI-speak, TCAU would be Hemisphere), meaning they also get DEA and other agencies to pay for it. In that business purpose, the FBI is a customer of AT&T and Sprint’s business decision to create its own version of the NSA’s database, including all its calls as well as things like location data the FBI can get so on individualized basis.
Verizon used to choose to pursue this business (this is the significance, I think, of the government partially relying on a claim to voluntary production, per Kris). In 2009, they changed their business approach and stopped doing that. So they no longer have a business need to create and keep a database of all its phone records.
What they do still have are SS7 routing records of all traffic on their backbone, which they need to route calls through their networks (which is what AT&T uses to build their database). That’s the business record they use to respond to their daily obligations.
But there seem to be two likely reasons why the FISC can’t force Verizon to alter those SS7 records, stripping the CSLI before delivering it to the government. First, there is no means to compensate the providers under Section 215. That clearly indicates Congress had no plan to ask providers to provide all their records on a daily basis. But without compensation, you can’t ask the providers to do a lot of tweaking.
The other problem is if you’re asking the providers to create a record, then you’re getting away from the Third Party doctrine, aren’t you? In any case, the government and judges have repeated over and over, they can only get existing business records the providers already have. Asking Verizon to do a bunch to tweak those records turns it into a database that Verizon has created not for its own business purpose, but to fulfill the government’s spying demands.
I think this is the underlying point of Woods’ testimony where he made it clear Verizon had no intent of playing Intelligence agent for the government. Verizon seems to have made it very clear they will challenge any order to go back into the spying for the government business (all the more so after losing some German business because of too-close ties to the USG). And since Verizon is presumably now doing this for relatively free (since 2009, as opposed to AT&T and Sprint, who are still getting paid via their FBI contract), the government has far less ability to make demands.
This is also where I think the cost from getting complete coverage comes from. You have to pay provider sufficiently such that they are really doing the database-keeping voluntarily, which presumably gets it well beyond reasonable cost compensation.
Update: One final point (and it’s a point William Ockham made a billion years ago). The foreign data problem Verizon had starting in 2009 would be completely consistent with a shift from database production to SS7 production, because SS7 records are going to have everything that transits the circuit.

Glass Shattered: California Supreme Court Denies Stephen Glass Law License

The decision is in, and the California Supreme Court has made their decision to refuse to grant Stephen Glass a law license in the State of California.

We conclude that on this record he has not sustained his heavy burden of demonstrating rehabilitation and fitness for the practice of law.

The full opinion is here.

Ironically, the California Bar’s initial hearing officer, the entity that actually deals with line level lawyers and their practice on a day to day basis in California, found Glass had demonstrated reform and good character so as to be fit for practice. The The State Bar Court Review Department independently reviewed the record and agreed with the initial finding of character fitness for practice. Instead, it was the more insulated elitists in the Bar Committee, and ultimately in the California Supreme Court, who thought otherwise.

Glass’s conduct as a journalist exhibited moral turpitude sustained over an extended period. As the Review Department dissent emphasized, he engaged in “fraud of staggering‟ proportions” and he “use[d] . . . his exceptional writing skills to publicly and falsely malign people and organizations for actions they did not do and faults they did not have.” As the dissent further commented, for two years he “engaged in a multi-layered, complex, and harmful course of public dishonesty.” Glass’s journalistic dishonesty was not a single lapse of judgment, which we have sometimes excused, but involved significant deceit sustained unremittingly for a period of years. (See Hall v. Committee of Bar Examiners (1979) 25 Cal.3d 730, 742 [applications may be rejected in cases of “numerous fraudulent acts” and “false statements”].) Glass’s deceit also was motivated by professional ambition, betrayed a vicious, mean spirit and a complete lack of compassion for others, along with arrogance and prejudice against various ethnic groups. In all these respects, his misconduct bore directly on his character in matters that are critical to the practice of law.

and

Glass’s misconduct was also reprehensible because it took place while he was pursuing a law degree and license to practice law, when the importance of honesty should have gained new meaning and significance for him.

Moreover, Glass’s lack of integrity and forthrightness continued beyond the time he was engaged in journalism. Once he was exposed, Glass‟s response was to protect himself, not to freely and fully admit and catalogue all of his fabrications. He never fully cooperated with his employers to clarify the record, failed to carefully review the editorials they published to describe the fabrications to their readership, made misrepresentations to The New Republic regarding some of his work during the period he purported to be cooperating with that magazine, and indeed some of his fabrications did not come to light until the California State Bar proceedings. He refused to speak to his editor at George magazine when the latter called to ask for help in identifying fabrications in the articles Glass wrote for that magazine.

The decision goes on to hammer Glass about as hard as could be imagined in every aspect of his prior conduct, rehabilitation and application for bar membership. The decision is every bit as venomous and scathing as the oral argument was (further discussed below).

Back in August of last year, I wrote about the attempt of failed, story inventing journalist Stephen Glass’ attempt to gain his license to practice law in the State of California. I drew a comparison between the beyond commendable success Shon Hopwood has found in gaining an exclusive Read more

Shon Hopwood, Stephen Glass and Second Chances in America

Say what you will about District of Columbia Circuit Court of Appeals Judge Janice Rogers Brown, and much has indeed been said by both sides of the ideological divide, but she has done something truly remarkable and admirable. Brown has accepted Mr. Shon Hopwood to be one of her clerks.

From Tony Mauro at the Blog of Legal Times:

Shon Hopwood’s unique career in the law has taken a dramatic new turn. The onetime jailhouse lawyer who served time in federal prison for robbing banks has been hired as a 2014 law clerk for Judge Janice Rogers Brown of the prestigious U.S. Court of Appeals for the D.C. Circuit.

“I’m amazed at the opportunities and second chances I have been given,” said Hopwood Wednesday after returning home to Seattle from his interview with Brown on Monday. Hopwood said the judge offered him the job soon after the interview. “I quickly said yes.”

While in Washington, D.C. Hopwood, 38, also visited former solicitor general Seth Waxman, who has been something of a mentor to Hopwood for more than a decade. They made contact after a certiorari petition Hopwood wrote for a fellow inmate while in prison was granted review by the Supreme Court. The 2004 case was Fellers v. United States. Hopwood chronicled his experiences in the 2012 book Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption.

Redemption is right, and a wonderful story of it this is. You see, Hopwood was not a simple wayward youth in minor scrapes with the law, as he told Adam Liptak in 2010 (in a really must read piece):

“We would walk into a bank with firearms, tell people to get down, take the money and run,” he said the other day, recalling five robberies in rural Nebraska in 1997 and 1998 that yielded some $200,000 and more than a decade in federal prison.

Ugly stuff. From which a flower of brilliance has bloomed from the second chance of American opportunity. Just how special the rehabilitation and dedication of Hopwood has been comes in a rather amazing exchange between Hopwood and the federal judge who sentenced him, Richard G. Kopf of the Nebraska District. Kopf, it turns out, has a blog and took to it to state how wrong he had been about Hopwood:

Hopwood proves that my sentencing instincts suck. When I sent him to prison, I would have bet the farm and all the animals that Hopwood would fail miserably as a productive citizen when he finally got out of prison. My gut told me that Hopwood was a punk–all mouth, and very little else. My viscera was wrong.

As if such a heartfelt admission by a seasoned federal judge were not enough, Hopwood appeared in the comments to engage in a remarkable interaction with Kopf, and said:

I wouldn’t say that your sentencing instincts suck. While I meant what I said at sentencing, I was hardly the person that could back it up. I was a reckless and selfish young man back then. I changed. I think most of us change from the age of 22 to 38. And many, like me, outgrow the irresponsibility and foolishness. I can’t tell you how many law enforcement officers (including prosecutors) have come up to me and said something similar to this: I know your story and I too committed some crimes when I was young (although not in the category of bank robberies), and I was lucky enough to not get caught. They changed and channeled their energies and became responsible professionals. I did, too.

It is all pretty breathtaking and fantastic, and hat’s off to both Shon Hopwood and Janice Rogers Brown for having the courage and conviction to make this happen. On other days I would likely be taking fairly strong issue with Brown’s legal handiwork, but not today, and not here.

But the story of American second chance is a fickle and uneven one. For every Shon Hopwood, there are a lot of broken dreams of redemption left scattered, and shattered, on the ground.

This is where the hope of Hopwood meets the flip side of the coin of chance, and both have strong nexus to the Supreme Court of California. From whence Janice Rogers Brown once came, the second part of this story now resides in the name and form of Stephen Randall Glass.

Mr. Glass never robbed a bank, terrorized citizens with firearms or stole money, but he took something extremely precious – truth and honesty – from readers of his journalism. In pretty much exactly the same time frame Mr. Hopwood was robbing banks, Mr. Glass was robbing his readers.

Stephen Glass also, like Shon Hopwood, has a story of bottom to top redemption with a culmination in the love, study and practice of law – or at least hope to do so. Glass’ case is now before the California Supreme Court (yes the prior haunt of Janice Rogers Brown) and has been for over a year and a half waiting…waiting…for a decision.

Let his attorney, Jon Eisenberg, paint the picture from the merits brief lodged on January 3, 2012:

Second chances are an American story. This case is such a story – one of redemption.

Stephen Glass has applied for admission to the California bar. For more than 13 years he has worked diligently to build a good and honest life. His present moral character is outstanding.

But he has had much to overcome. From 1996 to 1998, when Glass was 23 to 25 years old, he committed egregious misconduct, writing 42 fabricated articles for The New Republic (TNR) and other magazines until his lies were exposed and his journalism career ended. Yet Glass, now age 39, has rehabilitated himself during the past 13 years, successfully negotiating a long and difficult road. The law looks with favor upon bar applicants who redeem themselves from prior misconduct. (Pacheco v. State Bar (1987) 43 Cal.3d 1041, 1058 (Pacheco).)

After a ten-day trial with 27 witnesses and thousands of pages of documentary evidence, the State Bar Court’s Hearing Department and Review Department both concluded that Glass has achieved the good moral character required to practice law. The Committee of Bar Examiners (Committee) disagrees. This court will decide.

Indeed, the California Supreme Court will decide.

The parallels between the tracks of the two men are stunning. Both have displayed a contrite determination to redeem and improve themselves over the same fourteen year period, and both have found their way in the law.

Yet one man, Hopwood, the one who quite arguably committed the worse, and definitively violent criminal, conduct is being given a chance in the hallowed halls of the second highest federal court in the land. A chance he has well and admirably earned. But if that is the case, and it is, then so too has Stephen Glass. The Supreme Court of California has inexplicably kept his case on ice for over a year and a half.

The American dream of redemption and second chance only is meaningful if it exists in more than isolated instances. Chief Judge Tani Cantil-Sakauye and the other justices of the California Supreme Court have a chance to follow the admirable lead of their former colleague Janice Rogers Brown by giving Glass a shot at redemption. Will they take it? Will all the internet and print writers and pundits who have rightfully applauded Shon Hopwood’s second chance do the same for their once famed, and now disgraced, colleague? Where lies the fickle line of possibility for redemption?

Why Would Jeh Johnson Suggest the Drone and/or Targeted Killing Court Would Be Bipartisan?

I’ll have more to say about Jeh Johnson’s skeptical speech on a drone and/or targeted killing court later.

But I wanted to point to this detail:

Our government finds itself in a lose-lose proposition: it fails to officially confirm many of its counterterrorism successes, and fails to officially confirm, deny or clarify unsubstantiated reports of civilian casualties.

Our government’s good efforts for the safety of the people risks an erosion of support by the people.

It is in this atmosphere that the idea of a national security court as a solution to the problem — an idea that for a long time existed only on the margins of the debate about U.S. counterterrorism policy but is now entertained by more mainstream thinkers such as Senator Diane Feinstein and a man I respect greatly, my former client Robert Gates – has gained momentum.

To be sure, a national security court composed of a bipartisan group of federal judges with life tenure, to approve targeted lethal force, would bring some added levels of credibility, independence and rigor to the process, and those are worthy goals.

In the eyes of the American public, judges are for the most part respected for their independence.

In the eyes of the international community, a practice that is becoming increasingly controversial would be placed on a more credible footing. [my emphasis]

As I understand it, the model under discussion is simply to give the existing FISA Court the additional task of reviewing kill decisions, not creating a new court.Yet the FISA Court — whose judges are appointed by the Chief Justice of the Supreme Court (and therefore, for the entire life of the FISA Court, by a Republican appointee) — is in no way bipartisan.

Read more

Latif’s Death: A Blow to the Head of Our System of Justice

I’d like to take issue with Ben Wittes’ post on the sadness of Adnan Farhan abd al Latif’s death. I certainly agree with Wittes that Latif’s death is terribly sad. But I object to Wittes’ take on three related grounds. Wittes,

  • Provides a problematic depiction of the justification for Latif’s detention
  • Misstates the importance of Latif’s clearance for release
  • Assigns responsibility for Latif’s continued detention to the wrong people

Wittes tries hard to downplay how much Latif’s death in custody damns Gitmo. But he does so by obscuring a number of key facts all while accusing Gitmo foes of building up “myths.”

A problematic depiction of the justification for Latif’s detention 

Before he talks about how sad this is, Wittes tries to refute the “myths” Gitmo opponents have spread. First, he argues, we should not be arguing Latif was innocent.

Guantanamo’s foes are building up a lot of myths about the Latif case—many of which I don’t buy at all. While I have criticized the D.C. Circuit’s opinion in the case, it does not follow from the decision’s flaws that Latif was an innocent man wrongly locked up for more than a decade. Indeed, as I argued inthis post, it is possible both that the district court misread the evidence as an original matter and that the D.C. Circuit overstepped itself in reversing that decision. The evidence in the case—at least what we can see of it—does not suggest to me that Latif had no meaningful connection to enemy forces. [my emphasis]

After twice using the squirreliest of language, Wittes finally settles on a lukewarm endorsement of the argument that Latif had some “meaningful connection” to the enemy. Curiously, though, he exhibits no such hesitation when he describes Latif this way:

Latif—a guy whose mental state was fragile, who had suffered a head injury, and who seems to have had a long history of self-injury and suicide attempts. [my emphasis]

That’s curious because whether or not Latif continued to suffer from his 1994 head injury was a central issue in whether or not Latif was credible and therefore whether he should be released. Moreover, it is one area where–as I explained in this post–Janice Rogers Brown fixed the deeply flawed argument the government made, thereby inventing a new (equally problematic, IMO) argument the government had not even plead to uphold the presumption of regularity that has probably closed off habeas for just about all other Gitmo detainees.

As you’ll recall, Henry Kennedy found Latif’s argument he had traveled to Afghanistan for medical treatment for his head injury credible because DOD’s own intake form said he had medical records with him when they took custody of him in Kandahar.

Furthermore, there are indications in the record that when Latif was seized traveling from Afghanistan to Pakistan, he was in possession of medical records. JE 46 at 1 (noting that Latif was seized in a “[b]order [t]own in [Pakistan]” with “medical papers”); JE 66 (unidentified government document compiling information about Latif) at 2 (stating that “[Latif] had medical papers but no passport or weapon” when he “surrendered himself to [Pakistani] authorities”).12

David Tatel, too, pointed to that in his dissent: “the most plausible reason for why Latif would have had medical papers in his possession when first seized is that his trip in fact had a medical purpose.”

Yet the government argued that Latif offered no corroboration for his story.

The court improperly gave no adverse weight to the conclusory nature of Latifs declaration, and the lack of corroboration for his account of his trip to Afghanistan, both factors which should have weighed heavily against his credibility.

[snip]

Latif also provided no corroboration for his account of his trip to Afghanistan. He submitted no evidence from a family member, from Ibrahim, or from anyone to corroborate his claim that he was traveling to Pakistan in 2001 to seek medical treatment.

That’s a laughable claim. Latif submitted one of the government’s own documents as corroboration for his story. The government, however–in a brief arguing that all government documents should be entitled to the presumption of regularity–dismissed that corroborating evidence by implying that government document didn’t mean what it said–which is that Latif had medical papers with him when captured.

Respondents argue that these indications are evidence only that Latif said he had medical records with him at the time he was seized rather than that he in fact had them.

The claim is all the more ridiculous given that, unlike the CIA interrogation report the government argued should be entitled to the presumption of regularity, there’s a clear basis for the presumption of regularity of Latif’s intake form: the Army Field Manual. It includes instructions that intake personnel examine documents taken into custody with detainees. They don’t just take detainees’ words for it, they look at the documents.

I’m not suggesting that the government’s claim–that the screener just wrote down whatever Latif said–is impossible; I think it’s very possible. But they can only make that argument if they assume the intake screener deviated from the AFM, and therefore a document created under far more regulated conditions than the CIA report, and one created in US–not Pakistani–custody, should not be entitled to the presumption of regularity. Read more

SCOTUS Kills Habeas Corpus

SCOTUS has just declined to take all seven of the pending Gitmo habeas corpus petitions, including Latif and Uthman.

This effectively kills habeas corpus.

Consider what SCOTUS just blessed:

  • Holding a person indefinitely for being in the wrong place at the wrong time–including a school, a road, and a guest house–where suspect people are.
  • Holding a person indefinitely based on an admittedly error-ridden report the government wrote up itself.
  • Holding a person indefinitely based on pattern analysis.
  • Completely upending the role of District Court judges in the fact-finding process.

 

The Problem with Equating Travel Routes and Terrorism: 34 Dead Civilians

A few weeks back, Seton Hall published a report showing that since the DC Circuit reversed the habeas petition of Mohammed al-Adahi, “the practice of careful judicial fact-finding was replaced by judicial deference to the government’s allegations. Now the government wins every petition.” The report traced a number of factors that, before al-Adahi, judges examined with some skepticism, but after, fairly regularly accepted as evidence that a detainee was a member of al Qaeda.

Among those factors were staying in certain guest houses and traveling a particular route that–the government effectively claimed–meant you were a terrorist. Thus, it no longer mattered whether you had fought for al Qaeda. In the absence of more direct evidence, the government argued that where you traveled was one piece of evidence that you should be detained as a terrorist.

Tellingly, while the government has a declaration they routinely submit in Gitmo cases on the significance of guest houses to al Qaeda, they have not (as far as I know) ever submitted a similar declaration providing evidence for a tie between travel routes and al Qaeda membership (the closest they have is a report on Tora Bora which seems to argue “if you were in this vicinity you must have been in Tora Bora and, Osama bin Laden!”). In fact, that’s part of what infuriated David Tatel in the Latif case–the way the majority opinion simply accepted the government’s evidence about Latif’s travel back to Pakistan–where hundreds of innocent of Arabs were picked up at the time–as corroboration for the error-ridden report the government submitted as its main proof that Latif could be detained.

Latif left Kabul in November 2001 and then traveled through Jalalabad before eventually arriving at the Pakistani border where Pakistani authorities detained him. According to the government, this path mirrors that of Taliban soldiers retreating from Kabul. Although not contending that this evidence is dispositive, the government argues that because Latif’s admitted route is consistent with that of Taliban soldiers and with information in the Report, it is a helpful piece in the puzzle, bolstering its claim that the Report’s inculpatory statements are accurate.

Fair enough, but how helpful? If this route is commonly used by innocent civilians, then the evidence is not that helpful at all. To understand why, consider a simple hypothetical. Suppose the government were to argue in a drug case that the defendant drove north from Miami along I-95, “a known drug route.” Familiar with I-95, we would surely respond that many thousands of non-drug traffickers take that route as well. Given what we know about our own society, the I-95 inference would be too weak even to mention. Cf Almerfedi, 2011 WL 2277607, at *4 n.7 (noting that some conduct such as possessing an AK-47 is so “commonplace in Afghanistan [that it] does not meaningfully distinguish an al Qaeda associate from an innocent civilian”). On the other hand, if the alleged drug trafficker had driven along an infrequently traveled country road, then a contention that that road was “a known drug route” would carry more weight. The burden of proof is on the government to demonstrate whether travel on a particular route to the Pakistani border, when considered in context, is mqre like the lonely country road and thus worthy of consideration when it comes to distinguishing between enemy combatants and innocent civilians.

I raise all this not just to point you to the Seton Hall report, which is well worth your time. But because today, SCOTUS will decide whether or not to accept two cases–Latif and Uthman–in which these issues are central (we won’t find out whether they’ll take the cases until Monday).

And because of this WSJ report, showing the tragic result of assuming that travel patterns must be indicative of terror ties: 34 dead civilians, targeted by Turkish warplanes after a US drone spotted a caravan of Kurdish smugglers using a route frequented by PKK guerrillas.

Above and out of sight, a U.S. Predator drone loitered. It was on a routine patrol when U.S. personnel monitoring its video feeds spotted the caravan just inside Iraq and moving toward the Turkish border, according to U.S. officials and the Pentagon’s assessment of the fatal strike.

U.S. military officers at the Fusion Cell in Ankara couldn’t tell whether the men, bundled in heavy jackets, were civilians or guerrilla fighters. But their location in an area frequented by guerrilla fighters raised suspicions. The Americans alerted their Turkish counterparts.

[snip]

Then Turkish warplanes appeared. “It was like a lightning bolt,” Mr. Encu said. “I saw a bright light and the force of the explosion threw me to the ground…When I turned my head I could see bodies on fire and some were missing their heads.”

Read more