surveillance

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.

The National Law Journal's Mike Scarcella reports that the First Circuit, "while noting its concern about prolonged electronic surveillance, dismissed a Fourth Amendment challenge over law enforcement's secret monitoring of a suspect's vehicle." The appellate court concluded that federal law enforcement acted in good faith to use warrantless GPS tracking on a arson suspect's vehicle because they had good reason to suspect him of being a serial arsonist, NLJ reports..
 

It's been reported before how Solicitor General Donald Verrilli Jr. told the Supreme Court no one had standing to challenge warrantless electronic surveillance because no criminal defendants had yet been caught by the program. Despite Verrilli's assurances to the court that defendants would receive notice if the evidence against them derived from warrantless surveillance, the Department of Justice was not giving any such notices. The Intercept notes that Verrilli himself might not have known at the time that the DOJ wasn't providing notice, and he successfully argued for a change in policy. But Dan Novack, writing in The Intercept, asks why the solicitor general has not yet corrected the record in the U.S. Supreme Court: " Lawyers have an ethical obligation to speak with candor to tribunals, especially when representing the government. Amazingly, Verrilli has managed to remain silent throughout this controversy. It’s past time we heard from him directly."

After Politico reported that Washington Post reporter Barton Gellman says he's been told his telephone records were obtained by a national security letter, Julian Sanchez posted on Just Security that there at least two ways in which a national security letter would appear to strain the limits of the authority from the only NSL statute allowing for access to telecommunications records.

"First, §2709 may only be used in connection with an 'authorized investigation to protect against international terrorism or clandestine intelligence activities,'" Sanchez writes. "Assuming Bart is not suspected of plotting to blow up any airplanes, it seems probable that we’re dealing here with an investigation of leaks of classified information to press. Yet such leaks—even when they clearly involve a violation of the law—do not obviously satisfy the traditional definition of 'clandestine intelligence activities.'"

Second, Sanchez writes, "a clause added to the NSL provisions by the USA Patriot Act—to compensate for the elimination of the requirement that NSLs target suspected agents of a foreign power—provides that they may be used for an authorized investigation 'provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.' The sole basis for seeking Gellman’s records would, of course, be his First Amendment–protected newsgathering and reporting activities."

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."

Parties in litigation have a duty under federal court rules not to destroy evidence. This obligation may be leading the National Security Agency to expand its phone call metadata program in order to preserve evidence as litigants like the American Civil Liberties Union and the Electronic Frontier Foundation sue to stop the surveillance of most of the phone calls made in America, the Wall Street Journal reports. No final decision has been made by the NSA yet, but governmental lawyers believe the obligation not to destroy evidence would require the practice of destroying phone records older than five years, WSJ reports. One source told the WSJ that, if the information was retained, it would be held only for the purpose of litigation. Deleting the data could mean that parties would lose their legal standing to pursue their cases.

James Risen and Laura Poitras report for the New York Times that Mayer Brown, while representing Indonesia in trade talks, might have been spied upon by the National Security Agency and its overseas partner. A February 2013 document "reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information." The Directorate advised that attorney-client privilege could cover some of the information, The Times reports.

The Times also reports that there is only so much protection that the attorney-client privilege affords from NSA surveillance: "The N.S.A.’s protections for attorney-client conversations are narrowly crafted, said Stephen Gillers, an expert on legal ethics at New York University’s School of Law. The agency is barred from sharing with prosecutors intercepted attorney-client communications involving someone under indictment in the United States, according to previously disclosed N.S.A. rules. But the agency may still use or share the information for intelligence purposes."

Orin Kerr, writing over at The Washington Post's Volokh Conspiracy, struck a cautionary note: "It seems to me that  the story here isn’t ‘NSA helped spy on U.S. lawyers.’ Rather, the story here is more like ‘Australian government obtained legal guidance from NSA General Counsel’s Office on what to do when Australian monitoring of a foreign government includes attorney/client communications between the government and its U.S law firm.’"

"The collection of phone records by the National Security Agency has no basis in the law, a member of an independent federal advisory board said Wednesday," The Hill reported on a Congressional hearing yesterday in which members of the Privacy and Civil Liberties Oversight Board testified. The Hill further reported: "'With all respect to both executive branch officials and judicial officials, nobody looked at the statute as carefully was we did,' James Dempsey, the vice president for public policy at the Center for Democracy & Technology, told members of the Senate Judiciary Committee."
 

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.”'