On Overview of the NSA's Surveillance Program

Editor's Notes

• #5: In 1972, the Supreme Court decided the case of United States v. United States District Court, better known as the “Keith” case, in which the Court considered the legality of an Attorney General authorized warrantless electronic surveillance of a U.S. citizen accused of bombing a CIA building. The Court rebuffed the government’s entreaty to recognize a foreign intelligence exception to the per se warrant requirement, holding that the Fourth Amendment prohibited warrantless surveillance directed at domestic threats to U.S. national security. The Court expressly refused, however, to decide the legality of warrantless surveillances where “foreign powers or their agents” were involved, leaving open the issue of the Executive’s authority to direct such operational activities at those persons or entities. The Court also strongly urged the Congress to provide a judicially-manageable standard applicable to electronic surveillances conducted for national security purposes.
• #10: Clinton administration denied 1 request, Bush administration denied 9 requests, Obama decision has denied 1 request (as of last year). Since 9/11, the average number of requests per year nearly tripled to be about 1,700 requests per year (previous average was appx 600 requests/year) Current membership of the court includes three judges from DC Circuit; 1 from Second Cir. (EDNY); 1 from 10th Cir. (Northern Dist. of Oklahoma); 1 from 5th Cir. (Eastern Dist. of Louisiana); 1 from 9th Cir (Dist. of Oregon); 1 from 3rd Cir. (EDPA); 1 from 1st Cir. (Dist. of Mass.); one from 8th Cir. (Eastern Dist. of Arkansas); 1 from 7th Cir. (Northern District of Illinois).
• #12: Clinton administration denied 1 request, Bush administration denied 9 requests, Obama decision has denied 1 request (as of last year). Since 9/11, the average number of requests per year nearly tripled to be about 1,700 requests per year (previous average was appx 600 requests/year) Current membership of the court includes three judges from DC Circuit; 1 from Second Cir. (EDNY); 1 from 10th Cir. (Northern Dist. of Oklahoma); 1 from 5th Cir. (Eastern Dist. of Louisiana); 1 from 9th Cir (Dist. of Oregon); 1 from 3rd Cir. (EDPA); 1 from 1st Cir. (Dist. of Mass.); one from 8th Cir. (Eastern Dist. of Arkansas); 1 from 7th Cir. (Northern District of Illinois).
• #19: Per E.O. 12333, “The Federal Bureau of Investigation. Under the supervision of the Attorney General and pursuant to such regulations as the Attorney General may establish, the Director of the FBI shall… “Conduct within the United States, when requested by officials of the Intelligence Community designated by the President, activities undertaken to collect foreign intelligence or support foreign intelligence collection requirements of other agencies within the Intelligence Community, or, when requested by the Director of the National Security Agency, to support the communications security activities of the United States Government”
• #20: Snowden was an employee of the consulting firm Booz Allen Hamilton, where he worked as a contractor for the NSA. The company announced that he had been fired. Booz Allen said Snowden was paid $122,000 a year for his work as a systems administrator, substantially less than the $200,000 a year he had claimed. Snowden was stranded in the transit lounge at a Moscow airport in June 2013 while trying to flee to Latin America. Russia eventually granted him a one-year temporary asylum permit that expired on Aug. 1. Russia renewed the residency permit for another three years this August. "Accordingly, from Aug. 1, 2014, Edward Snowden has received a residency permit in Russia for three years,” said his lawyer, Anatoly Kucherena. Under the terms of the permit, Snowden can move around Russia and pay visits of up to three months to other countries, "depending how he plans his time," Kucherena told reporters in Moscow. Mr. Kucherena is a political supporter of Vladimir Putin’s and serves on the Public Chamber, an advisory body that critics have long derided as a Potemkin construct of actual government oversight. He also serves as a member of another board that oversees the Federal Security Service, or F.S.B.
• #21: 9 Firms: Microsoft (hotmail), Google, Yahoo!, Facebook, PalTalk, YouTube, Skype, AOL, Apple -The NSA believes Snowden gave 200,000 documents to Glenn Greenwald and Laura Poitras Obama said he had directed US intelligence agencies to weigh the privacy interests of non-Americans as well as US citizens and residents, "in everything that they do.” Chancellor Angela Merkel has proposed establishing a European communications network to avoid emails and other data automatically passing through the US. General assertion is that this is a warrantless collection of information, which, while technically accurate, is misleading. Judicial review is taking place via FISA the legal safeguards that restrict surveillance against U.S. persons without a warrant do not apply to foreign persons overseas. This is not unique to America; few, if any, spy agencies around the world constrain their activities beyond their own borders. And the whole point of intelligence is to obtain information that is not publicly available.
• #22: Per Obama speech in January 2014: The bulk collection of telephone metadata program grew out of a desire to address a gap identified after 9/11. One of the 9/11 hijackers -- Khalid al-Mihdhar -- made a phone call from San Diego to a known al Qaeda safe-house in Yemen. NSA saw that call, but it could not see that the call was coming from an individual already in the United States. The telephone metadata program under Section 215 was designed to map the communications of terrorists so we can see who they may be in contact with as quickly as possible
• #23: Metadata: what telephone numbers were used to make and receive calls, when calls took place, and how long calls last. The Government cannot, through this program, listen to or record any telephone conversations.
• #25: The president’s review group’s report, published last December, recommended more than 40 far-reaching reforms, including ending the government’s bulk collection of telephone metadata and restricting surveillance on foreign leaders. The panel suggested that telephone providers or a private third party, not the government, should hold the metadata and give officials access to it only when ordered to do so by the secret Foreign Intelligence Surveillance Court. The panel also recommended requiring the FBI to obtain judicial approval before issuing a “national security letter,” a form of administrative subpoena the government uses to obtain phone numbers, e-mail addresses, and financial transaction records.
• #27: Judge Leon’s stay was because of “significant national security interests at stake in this case and the novelty of the constitutional issues.” Leon, a judge on the U.S. District Court for the District of Columbia. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.” Judge Leon examined the requirements of a preliminary injunction: a substantial likelihood of success on the merits (Focus); whether, absent an injunction, the plaintiff would suffer irreparable injury; a substantial injury to the opposing party; and a furtherance of the public interest.
• #28: Government arguments: Standing (order is to Verizon Business, not Verizon Wireless), and Smith controls (telephone records are third party business records – no reasonable expectation of privacy). Issues with Plaintiff’s arguments – when does the search occur? If it occurs when data is queried, is the threat of irreparable harm imminent? Judge Williams on this point: isn’t your case really about stuff that happens after collection and analysis, rather than at the moment of collection? The jurist thinks Klayman is “telescoping” the standing analysis, and “obscuring” matters along the way. Williams makes one last pass at standing. What’s the evidence that records pertaining to Klayman, or other plaintiffs, have been not merely produced to the government pursuant to orders issued by the FISC, but also examined in the way Klayman fears? he first is Cindy Cohn, who represents (among others) the Electronic Frontier Foundation and certain branches of the American Civil Liberties Union. She is ringingly clear, telling the three judges that Klayman is not resolved by Smith at all; indeed, the government’s whole strategy is to stretch Smith aggressively, so as to fit Klayman’s extraordinary facts. These involve, after all, mass collection of data regarding millions of telephone calls–data then stored by the United States for periods of five years. It’s not the stuff of dialed digits, as in Smith. [ALL ABOUT SCALE] Government maintains that no cell site data was collected Paul smith for Center for National Security Studies took up the argument of whether Section 215 actually authorizes the program
• #29: The A.C.L.U. is a customer of Verizon Business Network Services — the recipient of a leaked secret court order for all its domestic calling records — which gives it standing.
• #30: Judge Pauley: “The right to be free from searches and seizures is fundamental, but not absolute. … Every day, people voluntarily surrender personal and seemingly private information to transnational corporations, which exploit that data for profit. Few think twice about, even though it is far more intrusive than bulk telephony metadata collection.” c.f. Judge Leon: “In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program. It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government.” Judge Pauley then describes the oversight of the program: “It is monitored by the Department of Justice, the Intelligence Community, the FISC, and Congress.” To collect bulk metadata, “the Executive must first seek judicial approval from the FISC,” and provide semi-annual reports to Congress on legal interpretations of Section 215. Such oversight, in Judge Pauley’s estimation, is effective: for example, he notes that, when then-FISC Judge Bates had blasted the NSA for compliance problems associated with its bulk collection, NSA subsequently altered its collection approach and methods of querying collected data.
• #32: “As [Leon] eloquently observes, “[r]ecords that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person’s life.”