The American Bear

Sunshine/Lollipops

Internet Giants Got Millions From Taxpayers to Cover PRISM Spying Costs | Threat Level

Internet giants like Google and Yahoo received millions of dollars from the NSA to cover their surveillance under the PRISM program. These payments occurred after a federal court ruled that surveillance requests the companies handled under the PRISM program were unconstitutional.

The money was meant to cover expenses the companies incurred under court orders mandating the companies assist the NSA in its bulk collection of data, according to a top secret NSA newsletter leaked to the Guardian newspaper by NSA whistleblower Edward Snowden.

The document also shows the NSA was anxious to get certifications from the FISA Court to authorize surveillance beyond the possible expiration of the law that authorized that surveillance. The law was set to expire on December 31, 2012, but the NSA received authorizations under that law to continue its surveillance until September 23, 2013. As long as the certificate from the court was still valid, it would allow ongoing surveillance, the document explains, even if Congress failed to pass or delayed passage of an extension of the law.

From the document:

Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA702) operations (PRISM and Upstream) require the yearly renewal of three Certifications by the FISA Court. These were signed on 21 Sept 2012, and effective on 24 Sept 2012. Upstream providers completed their transitions to the new Certifications on 24 September 2012, and PRISM providers completed their transitions by 2 October 2012. These documents authorize FAA702 tasking and collection, with directions on targeting and minimization procedures. It is important that these Certifications were renewed, because they authorized FAA702 operations until 23 September 2013, even if Congress fails to pass, or delays passage of, a replacement bill for the 2008 FAA legislation which enables all FAA collection. The FAA law expires on 31 Dec 2012. However, the law permits operations to continue as long as the Certifications are in effect. This year’s Certification renewal occurred on time, compared to 2011 when he FISA Court determined that some procedure with Upstream operations were problematic and required NSA to propose acceptable processes. Last year’s problems resulted in multiple extensions to the Certifications’ expiration dates which cost millions of dollars for PRISM providers to implement each successive extension — costs covered by Special Source Operations.

The PRISM program involves the bulk collection of data from companies under the FISA Amendments Acts, passed in 2008. Section 702 of the law allows the government to target the communications of foreign nationals believed to not be on U.S. soil, but also allows for the collection of data of U.S. citizens if that person is communicating with a foreign national who is targeted. It does not allow for the collection of wholly domestic communications, which the government is supposed to filter out.

The NSA, however, failed to filter out these domestic communications until the court intervened.

The payments to the companies were made after the Foreign Intelligence Surveillance Court ruled in October 2011 that bulk collections of data, in which the NSA was unable to separate wholly domestic traffic from international traffic, was illegal. The court found that the NSA was collecting up to 56,000 wholly U.S. internet communications each year between 2008 when the FISA Amendments Act was passed and 2011 when the court discovered what the NSA was doing. The court ordered the NSA to revise its methods to comply with the Fourth Amendment. The court order discussing the ruling was declassified this week after the Electronic Frontier Foundation fought to have it released.

It’s not unusual for companies to charge the government for the cost of complying with surveillance requests. In 2009, Chris Soghoian, currently senior policy analyst with the ACLU’s Speech, Privacy and Technology Project, obtained price lists showing how much telecommunications companies charge the government for surveillance requests. For example, Cox Communications charges $2,500 for a pen register/trap-and-trace order for 60 days.

But in this case, the costs were also incurred because the government’s surveillance procedures were initially ruled unconstitutional by the judge and had to be revised to filter out wholly domestic content. This required the companies to work with the NSA to devise methods for doing so in a way that satisfied the court.

The Guardian cited four companies as receiving money from the government — Yahoo, Google, Facebook and Microsoft.

Yahoo provided the paper with a statement saying, “Federal law requires the US government to reimburse providers for costs incurred to respond to compulsory legal process imposed by the government. We have requested reimbursement consistent with this law.”

Facebook insisted it had received no money, saying it had “never received any compensation in connection with responding to a government data request.”

Google declined to answer the question and Microsoft refused to answer on the record.

New Details Show Broader NSA Surveillance Reach (2) | WSJ

… Blarney was in use before the 2001 terror attacks, operating at or near key fiber-optic landing points in the U.S. to capture foreign communications coming in and out of the country. One example is an AT&T facility in San Francisco that was revealed in 2006 during the debate over warrantless wiretapping. A similar facility was built at an AT&T site in New Jersey, former officials say.

After the 2001 attacks, a former official says, these intercept systems were expanded to include key Internet networks within the U.S. through partnerships with U.S. Internet backbone providers. Amid fears of terrorist “sleeper cells” inside the U.S., the government under President George W. Bush also began redefining how much domestic data it could collect.

For the 2002 Winter Olympics in Salt Lake City, officials say, the Federal Bureau of Investigation and NSA arranged with Qwest Communications International Inc. to use intercept equipment for a period of less than six months around the time of the event. It monitored the content of all email and text communications in the Salt Lake City area.

At that point, the systems fed into the Bush administration’s program of warrantless wiretapping, which circumvented the surveillance court on the authority of the president’s power as commander in chief. The Bush administration came under criticism from lawmakers and civil libertarians for sidestepping court supervision.

The current legal backing for Blarney and its related programs stems from a section of a 2008 surveillance law. It permits the government, for foreign intelligence investigations, to snoop on foreigners “reasonably believed” to be outside the U.S.

Previously, the law had tighter standards. It allowed the government to spy on people if there were “probable cause” to believe they were an “agent of a foreign power.”

NSA has discretion on setting its filters, and the system relies significantly on self-policing. This can result in improper collection that continues for years.

A Patriot Act History Lesson: How Prescient Warnings Were Mocked | Conor Friedersdorf

During the winter of 2006, the U.S. Senate was debating the re-authorization of the PATRIOT Act. The legislation would ultimately pass by a wide margin, and George W. Bush signed it into law. But before that could happen, civil libertarians led by then Senator Russ Feingold tried to amend the 2001 law. They warned that its overly broad language would permit government to pry into the privacy of innocent Americans, and warned about the likelihood of executive branch “fishing expeditions.”

Dismissive Senate colleagues scoffed at their concerns.

An exchange between Feingold and then Senator Jon Kyl of Arizona is illustrative of the way that civil libertarians warned of coming abuses, only to be dismissed as hysterics needlessly wasting Senate time.

The scene takes place on the Senate floor on February 16, 2006.

Feingold was trying to amend the PATRIOT Act, arguing that Section 215, a part of the law core to the NSA controversy, gives the government “extremely broad powers to secretly obtain people’s business records.”

Said Feingold:

The Senate bill would have required that the government prove to a judge that the records it sought had some link to suspected terrorists or spies or their activities. The conference report does not include this requirement. Now, the conference report does contain some improvements to Section 215, at least around the edges. It contains minimization requirements, meaning that the executive branch has to set rules for whether and how to retain and share information about U.S. citizens and permanent residents obtained from the records. And it requires clearance from a senior FBI official before the government can seek to obtain particularly sensitive records like library, gun and medical records.

But the core issue with Section 215 is the standard for obtaining these records in the first place. Neither the minimization procedures nor the high level signoff changes the fact that the government can still obtain sensitive business records of innocent, law-abiding Americans. The standard in the conference report - “relevance” — will still allow government fishing expeditions. That is unacceptable.

He went on:

Next, let me turn to judicial review of these Section 215 orders. After all, if we’re going to give the government such intrusive powers, we should at least people go to a judge to challenge the order. The conference report does provide for this judicial review. But it would require that the judicial review be conducted in secret, and that government submissions not be shared with the challenger under any circumstances, without regard for whether there are national security concerns in any particular case. This would make it very difficult for a challenger to get meaningful judicial review that comports with due process.

Today we know that Section 215 has been invoked by the government to obtain call data on all Verizon customers, and has very likely been used to collect data on tens or hundreds of millions of Americans who are customers of all the major telecom carriers. Feingold was exactly correct: the sensitive business records of innocent, law-abiding Americans were seized because the minimization standard, “relevance,” turns out not to minimize affected Americans at all. Additionally, it has so far proved not just very difficult, but impossible to get meaningful judicial review.

But back in 2006, when Feingold remained a lonely voice in opposition to PATRIOT Act re-authorization, look at how Senator Kyl, speaking on the same day, derisively dismissed his concerns.

Said Kyl, opposing Feingold’s suggested amendments:

“There is no basis for delaying the PATRIOT Act.”

… “What can be gained from this? Nothing at all except that we waste more time thus making it more likely that we will not have time to do other business of the Senate, especially as it gets toward adjournment later on in the year.”

… “I often wonder what Osama bin Laden is thinking. I suspect he is not getting live coverage, but he is probably getting reports somehow or other, and he must be shaking his head: I thought I was pretty clear, I am really making threats against these guys, and they are playing around. They are not taking my threats seriously.”

… “I wanted to examine a couple of amendments our colleague from Wisconsin would have offered to illustrate it is not something we should be wasting our time on… I thought I would take two of the amendments—we are not going to be debating the amendments, but this is the kind of thing raised as an objection to the PATRIOT Act—the kind of amendments that would be offered. It shows how unnecessary this approach is.”

… “This amendment would strip away the protections for classified information about suspected terrorists and terrorist organizations… The amendment not only risks revealing our level of knowledge of our data collection methods to those who would do us harm, but it also threatens to undermine our relations with allies who supply us with a lot of information in this war or terror…this particular amendment would allow classified information to be compromised during the challenge to a nondisclosure order for national security letters or a FISA business records order… It serves no substantial interest but, as I said, can be very damaging to our national security.”

So thus far, Kyl has literally asserted not just that Feingold’s amendments are, on balance, wrongheaded, but that they serve no purpose or interest at all — and has suggested that the very effort to amend the PATRIOT Act isn’t just purposeless, but also a sign that Feingold doesn’t take Bin Laden seriously, which is to say, the cheapest rhetorical trick in the Senate playbook.

Kyl goes on to state:

“This amendment would do serious harm to U.S. national security. And to what end? What powerful privacy interest or civil rights interest dictates a third party asked to produce business records in its possession must be allowed to disclose the existence of the investigation or must be given access to other classified information in order to plead that matter before the judge?

… The only other amendment I want to discuss is amendment No. 2892, blocking these section 215 orders even where relevance is shown. This amendment is highly problematic because it would bar antiterrorism investigators from obtaining some third party business records even where they can persuade a court that those records are relevant to a legitimate antiterrorism investigation. We all know the term “relevance.” It is a term that every court uses. It is the term for these kinds of orders that are used in every other situation in the country. Yet the author of the amendment argues that relevance is too low a standard for allowing investigators to subpoena records.

Consider the context. The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation, and for each and every one of the 335 different administrative subpoenas currently authorized by the United States Code.

So Feingold says that the “relevance” standard, in the context of secret national security investigations, is extremely broad, and that his colleagues should recognize its implications for the privacy of innocent Americans — and Kyl retorts that “relevance” is the same standard used all the time, that we’re all familiar with it, and that it’s “exactly” the standard used in criminal investigations.

There’s no other way to put it: Feingold has been proved right, and Kyl wrong.

As the Wall Street Journal put it Monday, under the headline “Secret Court’s Redefinition of ‘Relevant’ Empowered Vast NSA Data-Gathering”:

The National Security Agency’s ability to gather phone data on millions of Americans hinges on the secret redefinition of the word “relevant.”

This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that “relevant” could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

The ‘relevant’ language was added to the Patriot Act when it came up for reauthorization; it was signed by President Bush in 2006.

The article goes on:

“Relevant” has long been a broad standard, but the way the court is interpreting it, to mean, in effect, “everything,” is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department’s primary authority on federal criminal surveillance law.

“I think it’s a stretch” of previous federal legal interpretations, says Mr. Eckenwiler, who hasn’t seen the secret ruling. If a federal attorney “served a grand-jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court.”

This is exactly how War on Terror hawks defeat civil libertarians: warnings that overly broad language will be twisted by the national security state are dismissed as paranoid time-wasting — why, relevance is the same standard used in all sorts of contexts, nothing worrisome to see here! Later, when the overly broad language is exploited in exactly the way civil libertarians anticipated, the same coalition that insisted such measures wouldn’t be permitted by the law suddenly claim that they’re perfectly legitimate legal interpretations of duly passed and signed legislation.

Former judge admits flaws in secret court | AP

WASHINGTON (AP) — A former federal judge who served on a secret court overseeing the National Security Agency’s secret surveillance programs said Tuesday the panel is independent but flawed because only the government’s side is represented effectively in its deliberations.

“Anyone who has been a judge will tell you a judge needs to hear both sides of a case,” said James Robertson, a former federal district judge based in Washington who served on the secret Foreign Intelligence Surveillance Act court for three years between 2002 and 2005. Robertson spoke during a Tuesday hearing of a federal oversight board directed by President Barack Obama to scrutinize government spying.

Robertson questioned whether the secret FISA court should provide overall legal approval for the surveillance programs, saying the court “has turned into something like an administrative agency.” He is one of several judges with FISA experience who have spoken out recently to affirm the court’s independence. But Robertson is the first to publicly air concerns about how the court grapples with the government’s vast secret data collection programs.

Much of the NSA’s surveillance is overseen by the FISA court, which meets in secret and renders rulings that are classified. Some of these rulings also likely been disclosed by Edward Snowden, the NSA systems analyst who leaked significant information about the spying program.

After Snowden began exposing the NSA’s operations in June, Obama instructed the U.S. Privacy and Civil Liberties Board to lead a “national conversation” about the secret programs. The board, which took testimony Tuesday on the secret surveillance programs, has been given several secret briefings by national security officials and plans a comprehensive inquiry and a public report on the matter.

Robertson said he asked to join the FISA court “to see what it was up to,” had previously played a central role in national security law. He was the judge who ruled against the Bush administration in the landmark Hamdan vs. Rumsfeld case, which granted inmates at the U.S. naval prison at Guantanamo Bay, Cuba, the right to challenge their detentions. That ruling was upheld by the Supreme Court in 2006.

Robertson quit the FISA court in 2005, days after the New York Times revealed widespread NSA warrantless wiretapping under President George W. Bush’s administration. Robertson had previously refused to explain his decision. But during a break in the hearing Tuesday he confirmed for the first time to the AP that he had “resigned in protest because the Bush administration was bypassing the court on warrantless wiretaps.”

Robertson said that FISA court judges have been scrupulous in pushing back at times against the government, repeatedly sending back flawed warrants. He also said he came away from his FISA experience “deeply impressed by the careful, scrupulous and fastidious work by the Justice Department” in obtaining secret surveillance warrants.

But he warned that Congress’ 2008 reform of the FISA system expanded the government’s authority by forcing the court to approve entire surveillance systems, not just surveillance warrants, as it previously handled. Under the FISA changes, “the court is now approving programmatic surveillance. I don’t think that is a judicial function,” he said. [++]

FISC Already Invented that Database-and-Mining Precedent in Secret | emptywheel

[It’s] not just that the government has done all this in a court with no antagonist. It’s that the government has gone to great lengths to make sure regular courts wouldn’t review these decisions, doing things like:

* Making no mention of the intentional-incidental collection of US person data

* Promising SCOTUS — but then reneging on that promise — that defendants charged with FISA-collected intelligence be alerted to the source of that evidence

* Lying about how easily targeted incidentally collected US persons would be to avoid standing

Effectively, the government has been refusing to let issues that affect a great number of Americans be reviewed in courts with real judicial process.

And then calling the result “law” and “legal” in spite of the fact that almost no Americans know about it.

Fisa court oversight: a look inside a secret and empty process | Glenn Greenwald

The way to bring actual transparency to this process it to examine the relevant Top Secret Fisa court documents. Those documents demonstrate that this entire process is a fig leaf, “oversight” in name only. It offers no real safeguards. That’s because no court monitors what the NSA is actually doing when it claims to comply with the court-approved procedures. Once the Fisa court puts its approval stamp on the NSA’s procedures, there is no external judicial check on which targets end up being selected by the NSA analysts for eavesdropping. The only time individualized warrants are required is when the NSA is specifically targeting a US citizen or the communications are purely domestic.

When it is time for the NSA to obtain Fisa court approval, the agency does not tell the court whose calls and emails it intends to intercept. It instead merely provides the general guidelines which it claims are used by its analysts to determine which individuals they can target, and the Fisa court judge then issues a simple order approving those guidelines. The court endorses a one-paragraph form order stating that the NSA’s process “‘contains all the required elements’ and that the revised NSA, FBI and CIA minimization procedures submitted with the amendment ‘are consistent with the requirements of [50 U.S.C. §1881a(e)] and with the fourth amendment to the Constitution of the United States’”. As but one typical example, the Guardian has obtained an August 19, 2010, Fisa court approval from Judge John Bates which does nothing more than recite the statutory language in approving the NSA’s guidelines.

Once the NSA has this court approval, it can then target anyone chosen by their analysts, and can even order telecoms and internet companies to turn over to them the emails, chats and calls of those they target. The Fisa court plays no role whatsoever in reviewing whether the procedures it approved are actually complied with when the NSA starts eavesdropping on calls and reading people’s emails.

The guidelines submitted by the NSA to the Fisa court demonstrate how much discretion the agency has in choosing who will be targeted. Those guidelines also make clear that, contrary to the repeated assurances from government officials and media figures, the communications of American citizens are – without any individualized warrant – included in what is surveilled.

The specific guidelines submitted by the NSA to the Fisa court in July 2009 – marked Top Secret and signed by Attorney General Eric Holder – state that “NSA determines whether a person is a non-United States person reasonably believed to be outside the United States in light of the totality of the circumstances based on the information available with respect to that person, including information concerning the communications facility or facilities used by that person.” It includes information that the NSA analyst uses to make this determination – including IP addresses, statements made by the potential target, and other information in the NSA databases.

The decision to begin listening to someone’s phone calls or read their emails is made exclusively by NSA analysts and their “line supervisors”. There is no outside scrutiny, and certainly no Fisa court involvement. As the NSA itself explained in its guidelines submitted to the Fisa court:

“Analysts who request tasking will document in the tasking database a citation or citations to the information that led them to reasonably believe that a targeted person is located outside the United States. Before tasking is approved, the database entry for that tasking will be reviewed in order to verify that the database entry contains the necessary citations.”

The only oversight for monitoring whether there is abuse comes from the executive branch itself: from the DOJ and Director of National Intelligence, which conduct “periodic reviews … to evaluate the implementation of the procedure.” At a hearing before the House Intelligence Committee Tuesday afternoon, deputy attorney general James Cole testified that every 30 days, the Fisa court is merely given an “aggregate number” of database searches on US domestic phone records.

But when Bush administration officials asked Congress for this new surveillance power, they said quite explicitly that Americans’ communications were the communications of most interest to them. See, for example, Fisa for the 21st Century, Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) (statement of Michael Hayden) (stating, in debate preceding passage of FAA’s predecessor statute, that certain communications ‘with one end in the United States’ are the ones ‘that are most important to us’). … The principal purpose of the 2008 law was to make it possible for the government to collect Americans’ international communications - and to collect those communications without reference to whether any party to those communications was doing anything illegal. And a lot of the government’s advocacy is meant to obscure this fact, but it’s a crucial one: The government doesn’t need to ‘target’ Americans in order to collect huge volumes of their communications. Jameel Jaffer

Fisa court oversight: a look inside a secret and empty process | Glenn Greenwald

The vast amount of discretion vested in NSA analysts is also demonstrated by the training and briefings given to them by the agency. In one such briefing from an official with the NSA’s general counsel’s office - a top secret transcript of which was obtained by the Guardian, dated 2008 and then updated for 2013 - NSA analysts are told how much the new Fisa law diluted the prior standards and how much discretion they now have in deciding whose communications to intercept:

“The court gets to look at procedures for saying that there is a reasonable belief for saying that a target is outside of the United States. Once again - a major change from the targeting under Fisa. Under Fisa you had to have probable cause to believe that the target was a foreign power or agent of a foreign power. Here all you need is a reasonable belief that the target is outside of the United States …

“Now, all kinds of information can be used to this end. There’s a list in the targeting procedures: phone directories, finished foreign intelligence, NSA technical analysis of selectors, lead information. Now, you don’t have to check a box in every one of those categories. But you have to look at everything you’ve got and make a judgment. Looking at everything, do you have a reasonable belief that your target is outside the United States? So, cast your search wide. But don’t feel as though you have to have something in every category. In the end, what matters is, ‘Does all that add up to a reasonable belief that your target is outside the United States?’”

So vast is this discretion that NSA analysts even have the authority to surveil communications between their targets and their lawyers, and that information can be not just stored but also disseminated. NSA procedures do not ban such interception, but rather set forth procedures to be followed in the event that the NSA analyst believes they should be “disseminated”.

The decisions about who has their emails and telephone calls intercepted by the NSA is made by the NSA itself, not by the Fisa court, except where the NSA itself concludes the person is a US citizen and/or the communication is exclusively domestic. But even in such cases, the NSA often ends up intercepting those communications of Americans without individualized warrants, and all of this is left to the discretion of the NSA analysts with no real judicial oversight.

The applicable law is one of the most controversial provisions of the Patriot Act — Section 215. It allows the FISA court to authorize broad warrants for most any type of records, including those held by banks, doctors and phone companies. Lawmakers have repeatedly voted to prevent the act from expiring. The government only needs to show that the information pertains to an “authorized investigation.” No connection to a terrorist or spy is required. Spy Court Urged to Unmask Legal Basis for NSA Dragnet Phone Surveillance

Also Revealed by Verizon Leak: How the NSA and FBI Lie With Numbers | Kevin Poulsen

Here’s a seemingly comforting statistic: In all of 2012, the Obama administration went to the secretive Foreign Intelligence Surveillance Court only 200 times to ask for Americans’ “business records” under the USA Patriot Act.

Every year, the Justice Department gives Congress a tally of the classified wiretap orders sought and issued in terrorist and spy cases – it was 1,789 last year. At the same time, it reports the number of demands for “business records” in such cases, issued under Section 215 of the USA Patriot Act. And while the number of such orders has generally grown over the years, it has always managed to stay relatively low. In 2011, it was 205. There were 96 orders in 2010, and only 21 in 2009.

Thanks to the Guardian’s scoop, we now know definitively just how misleading these numbers are. You see, while the feds are required to disclose the number of orders they apply for and receive (almost always the same number, by the way), they aren’t required to say how many people are targeted in each order. So a single order issued to Verizon Business Solutions in April covered metadata for every phone call made by every customer. That’s from one order out of what will probably be about 200 reported in next year’s numbers.

The public numbers are the one bit of accountability around the surveillance court, and the Justice Department used them to misdirect the public away from a massive domestic NSA spying operation that, as several Senators approvingly noted today, has been running for seven years.

In 2011, Acting Assistant Attorney General Todd Hinnen relied on the same misleading numbers when he told the House Judiciary Committee that “on average, we seek and obtain section 215 orders less than 40 times per year.” Congressman James Sensenbrenner rightly took Hinnen to task today for juking the stats. “The Department’s testimony left the Committee with the impression that the Administration was using the business records provision sparingly and for specific materials,” Sensenbrenner writes (.pdf). “The recently released FISA order, however, could not have been drafted more broadly.”

Leaks reveal the truth in small slices. In 2006, a technician at an AT&T switching center in San Francisco followed some fiber optic splices straight into an NSA wiretapping program parked on the backbones of the internet. Now someone with access to a single Patriot Act order served on Verizon Business Solutions leaked it to the Guardian, so today’s news is that the FBI and the NSA are engaged in wholesale spying on Verizon customers. But the whole pie is certainly bigger than that.

There are hints of broader surveillance in the Verizon order. In addition to call records, the order demands cell phone data, like customers’ IMSI (International Mobile Subscriber Identity) number and another identifier that reveals the make and model of the phone. The mobile data is a non sequitur in that particular order, because Verizon Business Services isn’t a mobile carrier; it’s the long distance and landline business Verizon acquired as MCI in 2005.

The obvious conclusion is that the Foreign Intelligence Surveillance Court uses the same catchall boilerplate order over and over again, just changing the company name and the date. The court that’s supposed to be protecting Americans from abusive domestic surveillance is not only failing in that duty, it’s also lazy.

Thanks to that laziness, we can fairly surmise that the orders are routine, and they are served on other carriers. Probably all of them. And probably continuously, renewed every three months for the last seven years.

That means the Administration has a database of every call to suicide prevention, every tip to a government fraud whistleblowing hotline, every call to the “find a meeting” number for every Alcoholics Anonymous chapter. And all it told us was that it uses the USA Patriot Act every now and then.

Feds Won't Say if NSA Surveilled New York Terror Suspects | David Kravets

Federal authorities prosecuting brothers on allegations they plotted to blow up a high-profile target in New York City are refusing to confirm publicly whether they cracked the case by employing a style of warrantless electronic eavesdropping first introduced by President George W. Bush in the wake of 9/11.

The reason, attorneys affiliated with the defense suggest, is because such a concession would create the nation’s first eligible defendant to challenge the constitutionality of the surveillance tactics, which Congress codified into law in 2008 and then again in December.

The government has never publicly conceded it has used evidence in a criminal case obtained through the National Security Agency’s post-9/11 mass surveillance program. A single acknowledgment could open the floodgates to challenge the surveillance tactic, which Supreme Court Justice Stephen Breyer in February noted that “commonsense” (.pdf) tells us is being employed by federal investigators.

The terrorism case concerns brothers Raees Alam Qazi, 20, and Sheheryar Alam Qazi, 30. Among other things, prosecutors said the younger Pakistani-born brother surfed Al-Qaida internet sites to learn how to build a bomb [of course!]. The FBI recorded telephone calls linking him to a plot to blow up a New York landmark last year.

… [The Judge in the brothers’ case, U.S. Magistrate John] O’Sullivan, agreeing with a defense motion, ordered (.pdf) prosecutors last week to say whether the government first acquired evidence against the indicted brothers (.pdf) using the Bush-style surveillance, and then used that evidence to obtain the traditional warrant from the secret court.

… [T]he government has never publicly admitted in a prosecution that it employed warrantless surveillance under the FISA Amendments Act. Doing so likely would trigger legal challenges over whether the tactic is constitutional — and would threaten the Qazi brothers’ case and perhaps countless others.

“This could open the door again at the Supreme Court,” said Patrick Toomey, national security fellow at the American Civil Liberties Union.

The development comes nearly three months after a fractured Supreme Court halted a legal challenge to the warrantless surveillance law at issue in the brothers’ case.

A divided Supreme Court, ruling 5-4, set aside the challenge because the plaintiffs — journalists and human-rights groups — had no evidence they were surveilled under FISA Amendment Act authority [and therefore no standing to sue]. Justice Samuel Alito, writing for the majority, said the plaintiffs “merely speculate and make assumptions.”

But the court’s decision did not foreclose a constitutional challenge. The justices said that, if the government “intends to use” evidence obtained in such a manner, the defendant “may challenge the lawfulness of the acquisition.”

Justice Breyer, in dissent, said the case should have proceeded to trial. Of the spying, he wrote: “Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.”

In court documents Thursday, Assistant U.S. Attorney Karen E. Gilbert urged O’Sullivan to set aside his order in the Qazi matter.

Gilbert said that, within weeks, the authorities will file a declaration from U.S. Attorney General Eric Holder that the information O’Sullivan has ordered disclosed is “sensitive national security information.” [of course!] (.pdf)

More on the referenced SCOTUS case, Clapper v. Amnesty International, here.

Surveillance Court's Opinions Must Remain Secret, Feds Say | David Kravets

The Obama administration is informing a federal judge that if it’s forced to disclose a secret court opinion about the government illegally spying on Americans, the likely result could be “exceptionally grave and serious damage to the national security.”

The statement came in response to a lawsuit demanding the administration disclose a Foreign Intelligence Surveillance Court opinion issued as early as last year. Sen. Ron Wyden (D-Oregon) was briefed on the opinion as a member of the Intelligence Committee and was authorized last year to reveal that the surveillance had “circumvented the spirit of the law” and was “unreasonable under the Fourth Amendment.”

The Electronic Frontier Foundation of San Francisco sought the ruling as part of a Freedom of Information Act request. The government rejected the request. The digital rights group sued in U.S. District Court for the District of Columbia.

In response, the government said that disclosure of the secret opinion should be barred because it “implicates classified intelligence sources and methods.” (.pdf)

Jacqueline Coleman Snead, a senior Justice Department counsel, added Monday that the EFF “cannot contend otherwise.”

Specifically, the EFF wants the government to make public a secret court ruling that found the feds had broken a 2008 wiretapping law, known as the FISA Amendments Act, that had legalized President George W. Bush’s warrantless wiretapping program that was implemented immediately after the 2001 terror attacks.

The public learned of the ruling only because of Wyden’s authorized statements about it last year.

The FISA Amendments Act allows the government to conduct widespread e-mail and phone surveillance inside the United States, without probable-cause warrants, targeting people or groups “reasonably believed to be located outside the United States to acquire foreign intelligence information.” In other words, the government can collect e-mails and phone calls in the United States so long as the target is a suspected terrorist group overseas. If the government collects e-mails that are sent by people believed to be American, the person’s identity is supposed to be given a pseudonym or “minimized.”

The government is required to get approval from a secret court known as the Foreign Intelligence Surveillance Court to conduct such surveillance. It’s opinions are secret, and the government wants to keep them that way.

That’s because the FISA Amendments Act generally requires the Foreign Intelligence Surveillance Court to rubber-stamp terror-related electronic surveillance requests. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret court rejects the surveillance application.

Bonus: Remember a month ago when people were throwing around the idea of a FISC-like “drone court” to add “oversight” to the kill list? Even when the FISC finds evidence of wrong-doing the Executive just invokes “national security” and it’s like it never happened.

ACLU Blasts Supreme Court Rejection of Challenge to Warrantless Spying Without Proof of Surveillance | Democracy Now!

The whole interview is worth watching, but I wanted to point out this exchange and its relationship to the drone “oversight” discussion:

NERMEEN SHAIKH: … You’ve also suggested that Justice Alito’s opinion seems to be based on the idea that a FISA court may at some point subject this law to constitutional review. What is a FISA court?

JAMEEL JAFFER: Right. So there is a—there’s a passage in Justice Alito’s opinion for the court that suggests that the result of yesterday’s decision isn’t that the law will be altogether immunized from judicial review. And he points to this FISA court system, this secret court system in which judges selected by the chief justice of the Supreme Court hear government proposals for surveillance. So there is this secret court system that most Americans don’t know about.

AMY GOODMAN: Where is it? Where are these courts?

JAMEEL JAFFER: It’s in Washington, D.C. They meet—they used to meet in the Justice Department building. My understanding is they have their own building now. It’s 11—

AMY GOODMAN: Secret building?

JAMEEL JAFFER: —eleven judges. They meet. They meet in secret. Only the government appears before them. They don’t customarily publish their decisions. And so, for Justice Alito to suggest that this is a sufficient check against the possibility of abuse or a sufficient system to ensure that our laws, like the Foreign Intelligence Surveillance Act, are actually constitutional, you know, obviously I think that that is beyond wrong. It’s—the idea that the Fourth Amendment will be protected in secret with secret opinions and only the government appearing before the court, I think is an idea completely foreign to the Constitution.

This is reason number that a “FISA-like” drone/targeted killing court is a terrible idea.

Judge James Robertson, a former Foreign Intelligence Surveillance (FISA) Court member, put it this way:

But — say the politicians, pundits and professors — courts routinely rule on government requests for search warrants and, in the national security context, on requests for foreign intelligence surveillance. Why not requests for drone strikes? The answer is simple: A search warrant is not a death warrant.

And the search warrant is just a rubber stamp.

Senators Ask Surveillance Court to Summarize Opinions | Secrecy News

Several members of the Senate Intelligence Committee wrote to the Foreign Intelligence Surveillance Court this month to ask the Court to prepare summaries of classified opinions that represent significant interpretations of the Foreign Intelligence Surveillance Act in order to facilitate their declassification and public release.

Meanwhile, the U.S. Supreme Court ruled that plaintiffs challenging the constitutionality of the FISA Amendments Act lacked the requisite legal standing to pursue their case, effectively foreclosing public oversight of intelligence surveillance through the courts.

The Senate letter, the text of which was not released, stems from an amendment to the FISA Amendments Act that was introduced by Sen. Jeff Merkley in December to promote declassification of significant Surveillance Court opinons. The Merkley amendment was not adopted — none of the legislative proposals to increase accountability were approved — but Senate Intelligence Committee chair Sen. Dianne Feinstein promised to work with Sen. Merkley to advance the declassification of FISC opinions.

“An open and democratic society such as ours should not be governed by secret laws, and judicial interpretations are as much a part of the law as the words that make up our statute,” said Sen. Merkley at that time. “The opinions of the FISA Court are controlling. They do matter. When a law is kept secret, public debate, legislative intent, and finding the right balance between security and privacy all suffer.”

“I wish to address, if I could, what Senator Merkley said in his comments,” said Sen. Feinstein during the December 27 floor debate. “I listened carefully. What he is saying is opinions of the Foreign Intelligence Surveillance Court should, in some way, shape or form, be made public, just as opinions of the Supreme Court or any court are made available to the public. To a great extent, I find myself in agreement with that. They should be.”

“I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions,” Sen. Feinstein continued. “[…] When possible, the opinions of the Foreign Intelligence Surveillance Court should be made available to the public in declassified form. It can be done, and I think it should be done more often. If the opinion cannot be made public, hopefully a summary of the opinion can. And I have agreed with Senator Merkley to work together on this issue.”

That letter, signed by Senators Feinstein, Merkley, Ron Wyden and Mark Udall, has now been sent to the FISA Court, where it awaits an official response.

Though the letter itself is a modest step, the willingness of congressional overseers to assert themselves on behalf of public accountability takes on new importance in light of yesterday’s Supreme Court decision (by a 5-4 vote) to block a constitutional challenge to the FISA Amendments Act. That decision all but closes the door to public oversight of the law’s implementation through the courts. [++]