FISA Court Opinion On NSA Collection of U.S. Communications

In response to a FOIA lawsuit(document here) by the Electronic Frontier Foundation (EFF), the Government today agreed to release a FISA court opinion finding some parts of the NSA electronic surveillance program unconstitutional. For example, for a period of time, the NSA illegally collected domestic emails and internet communications of Americans.

The October, 2011 opinion by former FISA Court Chief Judge John Bates is here. A September, 2012 opinion by Judge Bates finding the issue sufficiently resolved is here. Spencer Ackerman and other reporters had a conference call with an intelligence official who gave an explanation of what happened and why. Here is the Guardian report on documents from Edward Snowden describing the loophole (also here.)

DNI Director James Clapper's letter explaining today's releases is here. The website DNI set up with links to released documents is here.
Other documents released today include: [More...]

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    Not to worry... (5.00 / 2) (#1)
    by bmaz on Wed Aug 21, 2013 at 09:24:50 PM EST
    ...Barbara Starr of CNN assures me this is all on the up and up.

    Feel (5.00 / 1) (#2)
    by Edger on Wed Aug 21, 2013 at 09:27:39 PM EST
    safe 'n secure now?

    Yes, the ODNI... (5.00 / 1) (#3)
    by bmaz on Wed Aug 21, 2013 at 09:35:37 PM EST
    ...Tumbler account is extremely professional and reassuring! Cause, citizens might not accept traditional disclosure in mandatory reports to Congress, public disclosure, FOIA responses etc, - A Tumbler was truly the way to go!

    Clapper (5.00 / 1) (#4)
    by Edger on Wed Aug 21, 2013 at 09:48:00 PM EST
    is not only an amateur at lying, he's even worse at transparent truthiness

    Apparently, the Tumblr is supposed to serve these functions, though it currently doesn't contain any new information and is not even linked to by the main ODNI website.

    Tim Cushing (none / 0) (#5)
    by Edger on Wed Aug 21, 2013 at 10:53:05 PM EST
    today at TechDirt...
    As the Washington Post points out, this opinion, which details many instances in which the NSA flat out lied to the court, lends some credence to statements made by presiding judge Reggie Walton, who claimed the court was limited to making decisions based on information the NSA provided. This opinion appears to detail the NSA setting up its own complicit court system, intentionally misleading it in order to continue its surveillance programs unabated.
    The leaks keep coming and keep pointing to the same conclusion: the NSA has acted as a law unto itself. And all the while it continues to point at its "overseers," which include Congress (which has been lied to directly by the agency when not having information withheld from it by the leaders of the House Intelligence Committee) and the FISA Court (which has been lied to directly and is hampered by its reliance on the NSA's data and narratives -- which pretty much just means more lying).

    And despite all this evidence that the NSA's "oversight" is nearly completely compromised, the defenders, including those within the agency, continue to insist the system is working the way it should. In their eyes, maybe it is.

    I'm not convinced (none / 0) (#6)
    by Mikado Cat on Thu Aug 22, 2013 at 12:04:59 AM EST
    this system is working by any standard or that secrecy in the system has any "special" value.

    What could be a "secret" that isn't widely suspected?

    Here's what I don't understand: (none / 0) (#7)
    by Anne on Thu Aug 22, 2013 at 06:48:07 AM EST
    why, after it has now been made clear that the NSA has repeatedly misrepresented and deceived the FISC in order to continue collecting data, did the Court continue to give NSA what it wanted each and every time?

    Why?  A little something called "presumption of regularity," which I learned about reading Marcy Wheeler this morning:

    Footnote 32 reveals how, after NSA did a review of the communications the FISC ultimately found to violate the Fourth Amendment, the FISC caught it in downplaying the number of affected communications. After it sent the NSA back to new analysis, the problem grew from 2,000 to 10,000 a year to 48,000 to 56,000 a year. I guess the FISC found, like I have, that you can't trust the biggest math organization in the world to do basic math.

    Yet in spite of the fact that this opinion lists three substantial misrepresentations the NSA had made in recent history and caught the NSA in bad math, here's how it decided it could trust the government's assurances that it didn't use this abusive communication to target non-targeted people.

       Therefore, the Court has no reason to believe that NSA, by acquiring the Internet transactions containing multiple communications, is targeting anyone other than the user of the selected tasked selector. See United States v. Chemical Found., Inc., 272 U.S. 1, 14-15 (1926) ("The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.").

    I'm not surprised FISC invoked this (especially not surprised that John Bates, who can be very deferential, did). It is the law.

    But (as the case of Adnan Latif showed) we keep extending the presumption of regularity to the government in spite of abundant evidence we shouldn't.

    It's that last point that prompts the real question: if what we've seen so far isn't clear evidence that NSA shouldn't be accorded the presumption of regularity, what would clearer evidence look like?  How bad would it have to get before that line is considered to be crossed and the presumption withdrawn?

    And the last question: now what?

    FYI -- Anyone interested... (none / 0) (#8)
    by Cashmere on Fri Aug 23, 2013 at 07:01:59 PM EST
    The City Club of Portland sponsored a discussion between Senator Ron Wyden and Congessman Earl Blumenauer on the urgent need to reign in the NSA.  They are rebroadcasting on Oregon Public Broadcasting (OPB Radio) tonight at 7pm Pacific Coast Time. I have not heard it yet, but plan to listen.  If I find a link to the podcast, I'll post it.