Foreign Intelligence Surveillance Act

Twitter has filed a lawsuit challenging the federal government's gag order restricting the extent the social media company can reveal the scope of government surveillance on its service, Ars Technica's David Kravets reports. Twitter argues that it faces an unconstitutional prior restraint on its speech because of the gag order: "'Twitter’s ability to respond to government statements about national security surveillance activities and to discuss the actual surveillance of Twitter users is being unconstitutionally restricted by statutes that prohibit and even criminalize a service provider's disclosure of the number of national security letters (“NSLs”) and court orders issued pursuant to FISA [Foreign Intelligence Surveillance Act] that it has received, if any.'"

The Washington Post has another Edward Snowden-related piece: those who are not targeted in surveillance by the National Security Agency far outnumber the foreigners who are legally targeted. Nine of 10 accountholders found in a cache of intercepted conversations were not the intended surveillance targets "but were caught in a net the agency has cast for someone else," the Post reports. The newspaper reviewed 160,000 email and instant-message conversations and 7,900 documents taken from 11,000 online accounts, finding. for example, medical records sent by one relative to another, resumes, and schoolchildren's academic transcripts.

In an interview, Snowden told the Post he did want the full archive released, but he did not think journalists could understand the NSA programs '"without being able to review some of that surveillance, both the justified and unjustified.”'

Politico's Josh Gerstein reports that the 7th Circuit is questioning its authority to review an "unprecedented order giving defense attorneys access to the paperwork supporting secret Foreign Intelligence Surveillance Act orders used to build a criminal case." The 7th Circuit issued a one-page order expressing doubt that it has the jurisdiction to consider the pre-trial ruling. Responses to the jurisdictional question have to be filed next week, Politico further reports.

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.

Attorney counseling terrorism suspects have faced the violation of attorney-client privilege because of governmental surveillance, The Nation reports. One attorney discovered that every one of 42 phone calls with his clients had been recorded. Conversations between indicted defendants are off limits, but pre-indictment suspects are having their conversations with their lawyers surveilled, The Nation reports. Despite the arguments of many attorneys that they need confidentiality in order to represent their clients and gain their clients' trust, UCLA professor Norm Abrams struck a dour note: "'Given the fact that FISA modifies the otherwise applicable Fourth Amendment rules—the argument that FISA may also overcome the Fourth Amendment and attorney-client privilege, it’s not implausible.”'

Lawfare has a comprehensive roundup of all the legislative proposals to reform the mass surveillance that has been revealed by Edward Snowden's leaks. One suggested reform is to end the ex parte proceedings in the Foreign Intelligence Surveillance Court in which the government's requests face no opposition: "Judging by the bills in play, there’s pretty much two ideas for doing so: the addition of a new 'Special Advocate,' a lawyer who would argue in the public interest in FISC proceedings; or of an amicus curiae, or 'friend of the court,' when called upon by the court," according to Lawfare.
 

Yochai Benkler, law professor and director of the Berkman Center for Internet & Society at Harvard University, writes in The Guardian that a ruling in the Foreign Intelligence Surveillance Court contradicts recent jurisprudence from the U.S. Supreme Court on security and the constitutional protection from unreasonable searches and seizures. One of the most important implications of Benkler's argument is for FICA no longer to be an ex parte, completely secret court. Creating a role for an adversary to the goverment's surveillance requests has been one of the key reforms suggested for FISC. Benkler says that if FISC was adversarial that the U.S. Supreme Court's holding in United States v. Jones--that it was unconstitutional for law enforcement to place a GPS tracking device on a suspect's vehicle without a warrant-- would not have been ignored by FISC in a decision setting out "why the government's collection of records of all Americans' phone calls is constitutional."

Yahoo is softening CEO Marissa Mayer's remark this week that the reason the firm isn't doing more to push back against court orders that the tech firm can't reveal how much surveillance has been requested the government is because doing so would result in imprisonment on grounds of treason.

A Yahoo spokeswoman, according to the Wall Street Journal, explained: '"The point is that Yahoo fought in lower court and then again in appellate court, and we lost,' said spokeswoman Sara Gorman by email. 'At that point, failure to comply would be in contempt of valid legal process that had undergone two levels of federal court review, and could have led to incarceration.”'