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Foreign Intelligence Surveillance Court

Surveillance Court Judge Rejects Experts in 'Obvious' Cases

A federal judge on the Foreign Intelligence Surveillance Court has determined that an expert isn't required to present an opposing view to the government on the newly minted USA Freedom Act if the legal conclusion is "obvious," The Washington Post's Ellen Nakashima reports. This was the first time a judge examined when the USA Freedom Act requires that technical experts be appointed in a case involving a novel or significant issue. 

Julian Sanchez, a senior fellow at the Cato Institute, told The Post the requirement that technical experts be appointed to provide amicus briefs "'shouldn't depend on whether an issue seems obvious before the court has heard any counter arguments.'"

NSA Given Broad Leeway in Surveillance By Court

Another disclosure as a result of the Edward Snowden leaks: the Foreign Intelligence Surveillance Court signed off on the National Security Agency's interception of information about every foreign government but Great Britain, Canada, Australia, and New Zealand, the Washington Post reports. The certfication also "permitted the agency to gather intelligence about entities such as the World Bank, the International Monetary Fund, the European Union and the International Atomic Energy Agency, among others," the Post reports. The NSA did not necessarily target every country or organization it had legal permission to surveill, the Post adds.

The surveillance could cover reporters or attorney-client communications, The Post also notes.

Court Reverses Course, Allows Surveillance Evidence to Be Preserved for Lawsuits

The Foreign Intelligence Surveillance Court has reversed course on allowing the National Security Agency to retain phone call metadata for longer than five years in order to preserve evidence in civil lawsuits over governmental surveillance, The Hill reports. A "federal judge in San Francisco said the government could not destroy phone records after the five-year retention period expired," setting up a conflict with a prior ruling by F.I.S.C., The Hill further reports. Judge Reggie Walton said he was reversing course because the conflicting directions from the federal courts "'put the government in an untenable position and are likely to lead to uncertainty and confusion,'" according to The Hill.

The Story of the FISA Court's Evolution

The New York Times' Charlie Savage and Laura Poitras report on the evolution of the Foreign Intelligence Surveillance Court since the 9/11 attacks. Files leaked by Edward Snowden "help explain how the court evolved from its original task — approving wiretap requests — to engaging in complex analysis of the law to justify activities like the bulk collection of data about Americans’ emails and phone calls," they write. The court transformed from an adjudicator of surveillance applications to an interpreter of the law, Steven Aftergood, of the Federation of American Scientists, commented to The Times.

Among other revelations is that "the newly disclosed documents also refer to a decision by the court called Large Content FISA, a term that has not been publicly revealed before. Several current and former officials, speaking on the condition of anonymity, said Large Content FISA referred to sweeping but short-lived orders issued on Jan. 10, 2007, that authorized the Bush administration to continue its warrantless wiretapping program."

Court Rejects Holding Phone Records as Evidence in Privacy Civil Suits

The Foreign Intelligence Surveillance Court rejected the request of governmental lawyers to hold telephone metadata beyond the current five-year limit, Computer World reports. The Department of Justice had reasoned the evidence would need to be preserved for privacy civil lawsuits challenging the constitutionality of the surveillance of phone calls. The court reasoned: "The government can be sanctioned for destruction of evidence only if it is established that it had an obligation to preserve it at the time it was destroyed, that the records were destroyed 'with a culpable state of mind,' and the destroyed evidence was relevant to the party's claim or defense," Computer World also reports.

NSA Wants to Keep Phone Records Due to Lawsuits Challenging Legality of Surveillance

The National Security Agency needs to keep phone-call metadata longer than the five-year limit in order to preserve evidence for the civil lawsuits challenging the legality of surveillance, the Justice Department said in a court filing Wednesday, The Hill reports. "'The United States must ensure that all potentially relevant evidence is retained,'" government lawyers said, according to The Hill. The government does say the records would be kept for "non-analytical purposes."

Surveillance Court Modifies Telephone Metadata Program

President Obama's administration reports that the the Foreign Intelligence Surveillance Court has agreeed to modify the surveillance program collecting telephone metadata. James Clapper, director of national intelligence, said in a statement: "As a first step in that transition, the President directed the Attorney General to work with the Foreign Intelligence Surveillance Court to ensure that, absent a true emergency, the telephony metadata can only be queried after a judicial finding that there is a reasonable, articulable suspicion that the selection term is associated with an approved international terrorist organization. The President also directed that the query results must be limited to metadata within two hops of the selection term instead of three." Now, according to Clapper, FISC approved those changes. The orders haven't been declassified yet.

Obama Envisions Greater Role For FISA Court in Surveillance

President Obama finally weighed in on where the line should be drawn between surveillance and privacy in a speech today. The New York Times reports: the president "will require intelligence agencies to obtain permission from a secret court before tapping into a vast storehouse of telephone data, and will ultimately move that data out of the hands of the government."

The president also said surveillance of foreign leaders will be curtailed.

The president also suggested the creation of a "panel of advocates on privacy and technology issues who would appear before the Foreign Intelligence Surveillance court." The Times reports that the advocates would only appear in novel cases, but it's unclear who would decide which cases are novel.

FISC Judges Reject Privacy Advocate As Part of Surveillance Reform

John Bates, the former presiding judge of the Foreign Intelligence Surveillance Court, has "warned against a proposal to include in the court's proceedings an outside privacy and civil liberties advocate, who might take positions counter to the government when it seeks permission to collect huge swaths of Internet traffic, email addresses, and phone communications," Foreign Policy reports.

Bates, in consultation with other FISC judges, wrote that "the participation of a privacy advocate is unnecessary--and could prove counterproductive--in the vast majority of FISA matters, which involve the application of a probable cause or other factual standard to case-specific facts and typically implicate the privacy interest of few persons other than the specificed target. Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation," according to a letter sent to U.S. Sen. Dianne Feinstein, chair of the Senate Intelligence Committee.

Instead, the judges suggest that a privacy advocate only be appointed at the discretion of FISC judges and not have independent authority to intervene in cases.

Media Companies Seek Access to Surveilliance Court Decisions

Gigaom reports on a petition filed by several major media companies, including The New York Times, Politico and Bloomberg, against the Foreign Intelligence Surveillance Court decision that the Media Freedom and Information Access Clinic at Yale Law School does not have standing to seek access to the court's decisions authorizing the National Security Agency to collect millions of phone and e-mail records. Among other arguments, Gigaom reports "the media companies also point out that they have fewer resources to defend free speech and civil liberties issues in court, and must rely on newer groups like the Yale law clinic to help lift a legal torch they carried for most of the 20th century: 'while [the media companies] feel that news of their ‘death’ has been greatly exaggerated, shrinking budgets at large media companies have inevitably meant a drop-off in First Amendment litigation from those outlets.'"


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