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Joseph Moreno
Colleen Kukowski
December 9, 2014
Joseph Moreno is a special counsel in Cadwalader's White Collar Defense and
InvestigationsGroup. He formerly served as a federal prosecutor with the United
States Department of Justice in the National Security Division, where he
investigated and prosecuted international money laundering, structuring, and
terrorist financing cases. A United StatesArmy veteran of Operations Enduring
Freedom and Iraqi Freedom, Joseph was recently appointed a consultant to the
FBI where he served on the staff of the 9/11 Review Commission, assisting in its
evaluation of the FBI’s performance in addressing the threat of domestic and
international terrorism. Joseph earned his JD/MBA from St John’s University
School of Law and his BA in Political Science from Stony Brook University.
Colleen Depman Kukowski is an associate inCadwalader's White Collar
Defense and InvestigationsGroup, where she represents clients before the
United States Department of Justice, the Securities and Exchange Commission,
and international law enforcement authorities. Colleen formerly served in the
Counterterrorism Division of the Federal Bureau of Investigation, supporting
high priority terrorism investigations and working extensively with Foreign
Intelligence SurveillanceAct surveillance. Colleen received her JD from the
University ofVirginia School of Law, and earned her BA in English and History,
summa cum laude, from Loyola University in Maryland.
 Overview of FISA statute
 Post-9/11 legislative reforms
 Revelations exposed by Edward Snowden
 Scope of exposed surveillance programs
 Current legal challenges
 Q&A
 Prior to 1978, warrantless electronic surveillance to
collect foreign intelligence was authorized by the
President and the Attorney General
 The legal basis derived from the President’s
Constitutional authority to conduct foreign affairs and
protect the national security
 To the degree it was challenged, courts generally
recognized a national security exception to the Fourth
Amendment for foreign intelligence gathering
 Courts remained wary of domestic surveillance with no
evidence of a foreign power (“Keith” case)
 In 1975-76, the ChurchCommittee uncovered widespread
abuses of the government’s surveillance powers:
 Warrantless wiretapping by President Kennedy of public
figures including Martin Luther King, Jr. and Jimmy Hoffa
 Watergate-era use of the CIA by President Nixon to spy
on political enemies
 Infiltration of civil right and anti-war groups by Army
Intelligence assets
 Suppression of domestic political dissent by the FBI
under the guise of national security
 In 1978, the Foreign Intelligence Surveillance Act (FISA)
was enacted to provide a framework for obtaining foreign
intelligence
 The targeted entity must be a foreign power or an
agent of a foreign power
 The purpose of the surveillance must be to obtain
foreign intelligence information
 The statute provides not only for electronic surveillance,
but also for physical searches, pen registers, and trap
and trace devices
 “Foreign power” includes:
 Foreign government or
component thereof
 Entity controlled by a
foreign government (e.g.,
political organization)
 ForeignTerrorist Organization (FTO) designated by
DOJ/Treasury (e.g., Al-Qaeda, Al-Shabaab, Hamas,
Hezbollah, ISIS, AUC, FARC, Real IRA)
 Specially Designated GlobalTerrorist (SDGT) designated
byTreasury/OFAC
 “Agent of a foreign power”
includes:
 Non-US Persons who act
in the United States on
behalf of a foreign power
 US Persons who engage
in international terrorism
activities or secretly
gather intelligence for a
foreign power
In May 2014, Chief Justice John
Roberts appointed Senior District
JudgeThomas Hogan as FISC
Presiding Judge. The presiding judge
assigns FISA warrant applications to
the sitting FISC judges.
 FISA created two new courts:
1) Foreign Intelligence Surveillance
Court (FISC) – Consists of 11
district court judges appointed by
the Chief Justice; hears FISA
warrant applications presented
by the DOJ’s National Security
Division
2) Foreign Intelligence Surveillance
Court of Review (FISCR) – Hears
appeals in the event a FISC ruling
is challenged
 The standard of review for obtaining a FISA warrant is
different than that of a criminal (Title III) wiretap:
 Title III of the Crime ControlAct requires a law
enforcement officer to submit a written application to a
District Court Judge (not a Magistrate)
 Must describe facts and circumstances showing a serious
crime has been, is being, or is about to be committed
 Standard for approval is probable cause that a crime
was, is, or will be committed, and location to be
monitored will be used to communicate about the crime
 Target must be notified within 90 days
 FISA surveillance requires a more comprehensive
application process:
 The Attorney General (via the Office of Intelligence)
submits a classified application to the FISC
 Standard for approval is probable cause to believe that
the target is a foreign power, and that the facilities
targeted will be used by that foreign power
 May authorize surveillance of a foreign power for one
year, and of an agent of a foreign power for 90 days
 Since 1979, nearly 34,000 warrant applications have
been submitted to the FISC; only 11 have been denied
 Criminal investigations
designed to collect evidence,
arrest suspects and secure
convictions
 Rely on human sources,
electronic surveillance (T-III),
physical searches (Rule 41),
and obtaining third party
records (subpoenas)
 Conducted by FBI, DEA, ATF,
Secret Service, and local law
enforcement
 Intelligence investigations
designed to detect and
disrupt foreign threats to US
national security
 Rely on human sources,
electronic surveillance and
covert physical searches
(FISA), and obtaining third
party records (NSLs)
 Conducted by FBI, CIA, NSA,
DoD, and others
 By the 1990s, a series of judicial decisions and internal
DOJ procedures created a “wall” between criminal
investigators and intelligence collectors
 Purpose was to avoid the appearance that a foreign intel
investigation was becoming a criminal investigation
 While not completely barring coordination – the wall so
heavily regulated it that it effectively shut down
communications between law enforcement and intel
 It grew higher in 2000 when the FISC required FBI officials
to certify they understood the limitations of the wall –
resulting in a chilling effect even within the Bureau
 Following the 9/11 attacks, the USA PATRIOT Act was
approved with near unanimous vote in the Senate (98-1)
 Section 218 tore down the wall between law
enforcement, the intel community and the military
 Updated surveillance laws to reflect new technologies
and means of communications
 Added a number of new money laundering crimes
 Eliminated requirement that information sought by
NSL pertain to foreign power or agent of foreign power
 Enhanced penalties for terrorism-related crimes
 Section 215 added a “business records” provision:
 Permits the FBI to seek a court order directing the
production of records/documents when there are
reasonable grounds to believe the information sought
is relevant to an international terrorism investigation
 In the analogous contexts of civil discovery and criminal
investigations, “relevance” is a broad standard that
permits discovery of large volumes of data where doing
so is necessary to identify much smaller amounts of
information within that data
 FISA Amendments Act of 2008 added newTitleVII
 Section 702 allows for targeting of communications of
foreign persons located outside the US
 Grants telecoms immunity for cooperating with
intelligence collections
 Criticized for justifying NSA warrantless collection
programs of US persons under guise of foreign
surveillance
 Also permits surveillance of US persons located overseas
for up to one week without a warrant (previously 48 hrs)
 Executive Order 12333 issued
by President Reagan in 1981
(since amended)
 Formalized roles of various
players in the intelligence
community (CIA, FBI, DoD)
 Recently cited by NSA as
authority to retain US
communications collected
“incidentally” during course
of foreign intel investigation
 Beginning June 5, 2013,The Guardian
publishes a series of high-profile disclosures of
the vast collection of data obtained by the
National Security Agency and other
intelligence groups.
 On June 9, 2013, Edward Snowden, reveals
that he was the source of leaks to the
Guardian, as well as other major international
newspapers. Snowden was an employee of
the consulting firm Booz Allen Hamilton,
where he worked as a contractor for the NSA.
 On June 21, 2013, the United States charged
Snowden with espionage. Snowden currently
resides in Russia.
 Publication of a top-secret FISC order
againstVerizon Business Services,
mandating it to hand over the call
records for all of its customers
 Publication of a classified PowerPoint
presentation detailing NSA’s collection
of a wide range of digital information
from nine private Internet firms as part
of a program known as “PRISM”
 Publication of a list of world leaders
subject to surveillance efforts
 In response to Snowden’s allegations,
the Department of Justice and NSA
declassified several documents in
attempt , to explain the USG’s
surveillance efforts, including:
 Declassified (redacted) FISC order
 DOJWhite Paper on Section 215
 These documents illustrate how the
surveillance programs operate
 The collected information is limited to “telephony
metadata.” There was no recording of the content of
telephone calls
 It is not lawful for anyone to query the bulk telephony
metadata for any purpose other than counterterrorism –
FISC-imposed rules strictly limit any such queries.
 Under the FISC orders authorizing the collection, authorized
queries may only begin with an “identifier,” such as a
telephone number, that is associated with a foreign terrorist
organizations. An identifier used to commence a query of
the data is referred to as a “seed.”
 There must be a “reasonable, articulable suspicion” that a
seed identifier used to query the data for foreign intelligence
purposes is associated with a particular foreign terrorist
organization.
 When the seed identifier is reasonably believed to be used by
a U.S. person, the suspicion of an association with a
particular foreign terrorist organization cannot be based
solely on activities protected by the First Amendment.
 Under the FISC’s order, the NSA may also obtain information
concerning second and third-tier contacts of the identifier.
Based on this analysis of the data, the NSA then provides
leads to the FBI or others in the Intelligence Community. For
U.S. persons, these leads are limited to counterterrorism
investigations.
 President Obama appointed an
independent group of experts to
examine surveillance issues.
 President Obama restricted the
NSA to obtaining specific records
only with an order from the
Foreign Intelligence Surveillance
Court.
 “Two hops” instead of “three
hops”
 NSA created the new position of
Civil Liberties and Privacy Officer.
On January 17, 2014, President
Obama publicly addressed the
ongoing review of signals
intelligence and surveillance
programs.
 Plaintiffs, led by conservative activist
Larry Klayman, filed suit against the
government in the District of Columbia
in June 2013.
 Plaintiffs claimed that the government’s
telephony metadata collection under
Section 215 violated their rights under
the First, Fourth and Fifth
Amendments.
 In December 2013, Judge Richard J.
Leon ruled that the NSA program most
likely violates the Fourth Amendment.
 “I cannot imagine a more ‘indiscriminate’ and
‘arbitrary invasion’ than this systematic and high tech
collection and retention of personal data on virtually
every single citizen for purposes of querying and
analyzing it without prior judicial approval.”
 Judge Leon issues a temporary injunction, blocking the
NSA’s collection of phone records, but stayed the action
pending the government’s appeal
 Oral arguments were held in the D.C. Circuit Court of
Appeals in November.
 Key issues at oral
arguments:
 Do plaintiffs have standing?
 When does the “search”
occur?
 Does Smith v. Maryland
apply?
 Unusual in that two
amici were able to
present arguments as
well.
 The ACLU filed suit against the
government in the Southern District of
NewYork in June 2013.
 Plaintiff claimed that the government’s
telephony metadata collection under
Section 215 violated its rights under the
First and FourthAmendment.
 In December 2013, JudgeWilliam H.
Pauley III held that bulk telephony
metadata collection under Section 215
of the USA PATRIOT Act is lawful and
granted the government’s motion to
dismiss.
 Judge Pauley applies Smith v. Maryland
 “Clear precedent applies because Smith held that a subscriber
has no legitimate expectation of privacy in telephony metadata
created by third parties. …Telephones have far more versatility
now than when Smith was decided, but this case only concerns
their use as telephones.”
 Judge Pauley dismissed the ACLU’s First Amendment
argument and said that any alleged chilling effect on free
speech arises from a “speculative fear” resulting from a
“highly attenuated chain of possibilities.”
 The ACLU appealed, and oral arguments were held in
November 2014
 Plaintiff Smith, a nurse and mother
of two who lives in rural Idaho, filed
suit against the government over
the NSA’s telephony metadata
collection in the District of Idaho in
June 2013.
 Like Klayman and the ACLU, Smith
claimed the NSA program violated
her FourthAmendment rights.
 Chief Judge B. LynnWinmill granted
the government’s motion to dismiss
because Smith v. Maryland
controlled.
AnnaJ. Smith (pictured with her husband,
Peter) filed a suit in federal court in Idaho
against the government's surveillance
practices.
 Oral Arguments were held in the Ninth Circuit yesterday
(December 8, 2014)
 Setting the stage for a Supreme Court opinion?
 Chief JudgeWinmill referred to Judge Leon’s opinion,
which distinguished the telephony metadata collection
from the facts in Smith, as a “thoughtful and well-written
decision.”
 Chief JudgeWinmill invoked Justice Sotomayor’s
statement that Smith is “ill-suited to the digital age.”
U.S. v. Jones, 132 U.S. 945, 957 (2012).
 Appellate cases in the Second, Ninth and D.C. Circuits –
arguable the most powerful appellate courts in the
country – with potentially conflicting rulings.
Joseph Moreno
202.862.2262
joseph.moreno@cwt.com
Colleen Kukowski
202.862.2286
colleen.kukowski@cwt.com

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On Overview of the NSA's Surveillance Program

  • 2. Joseph Moreno is a special counsel in Cadwalader's White Collar Defense and InvestigationsGroup. He formerly served as a federal prosecutor with the United States Department of Justice in the National Security Division, where he investigated and prosecuted international money laundering, structuring, and terrorist financing cases. A United StatesArmy veteran of Operations Enduring Freedom and Iraqi Freedom, Joseph was recently appointed a consultant to the FBI where he served on the staff of the 9/11 Review Commission, assisting in its evaluation of the FBI’s performance in addressing the threat of domestic and international terrorism. Joseph earned his JD/MBA from St John’s University School of Law and his BA in Political Science from Stony Brook University. Colleen Depman Kukowski is an associate inCadwalader's White Collar Defense and InvestigationsGroup, where she represents clients before the United States Department of Justice, the Securities and Exchange Commission, and international law enforcement authorities. Colleen formerly served in the Counterterrorism Division of the Federal Bureau of Investigation, supporting high priority terrorism investigations and working extensively with Foreign Intelligence SurveillanceAct surveillance. Colleen received her JD from the University ofVirginia School of Law, and earned her BA in English and History, summa cum laude, from Loyola University in Maryland.
  • 3.  Overview of FISA statute  Post-9/11 legislative reforms  Revelations exposed by Edward Snowden  Scope of exposed surveillance programs  Current legal challenges  Q&A
  • 4.  Prior to 1978, warrantless electronic surveillance to collect foreign intelligence was authorized by the President and the Attorney General  The legal basis derived from the President’s Constitutional authority to conduct foreign affairs and protect the national security  To the degree it was challenged, courts generally recognized a national security exception to the Fourth Amendment for foreign intelligence gathering  Courts remained wary of domestic surveillance with no evidence of a foreign power (“Keith” case)
  • 5.  In 1975-76, the ChurchCommittee uncovered widespread abuses of the government’s surveillance powers:  Warrantless wiretapping by President Kennedy of public figures including Martin Luther King, Jr. and Jimmy Hoffa  Watergate-era use of the CIA by President Nixon to spy on political enemies  Infiltration of civil right and anti-war groups by Army Intelligence assets  Suppression of domestic political dissent by the FBI under the guise of national security
  • 6.  In 1978, the Foreign Intelligence Surveillance Act (FISA) was enacted to provide a framework for obtaining foreign intelligence  The targeted entity must be a foreign power or an agent of a foreign power  The purpose of the surveillance must be to obtain foreign intelligence information  The statute provides not only for electronic surveillance, but also for physical searches, pen registers, and trap and trace devices
  • 7.  “Foreign power” includes:  Foreign government or component thereof  Entity controlled by a foreign government (e.g., political organization)  ForeignTerrorist Organization (FTO) designated by DOJ/Treasury (e.g., Al-Qaeda, Al-Shabaab, Hamas, Hezbollah, ISIS, AUC, FARC, Real IRA)  Specially Designated GlobalTerrorist (SDGT) designated byTreasury/OFAC
  • 8.  “Agent of a foreign power” includes:  Non-US Persons who act in the United States on behalf of a foreign power  US Persons who engage in international terrorism activities or secretly gather intelligence for a foreign power
  • 9. In May 2014, Chief Justice John Roberts appointed Senior District JudgeThomas Hogan as FISC Presiding Judge. The presiding judge assigns FISA warrant applications to the sitting FISC judges.  FISA created two new courts: 1) Foreign Intelligence Surveillance Court (FISC) – Consists of 11 district court judges appointed by the Chief Justice; hears FISA warrant applications presented by the DOJ’s National Security Division 2) Foreign Intelligence Surveillance Court of Review (FISCR) – Hears appeals in the event a FISC ruling is challenged
  • 10.  The standard of review for obtaining a FISA warrant is different than that of a criminal (Title III) wiretap:  Title III of the Crime ControlAct requires a law enforcement officer to submit a written application to a District Court Judge (not a Magistrate)  Must describe facts and circumstances showing a serious crime has been, is being, or is about to be committed  Standard for approval is probable cause that a crime was, is, or will be committed, and location to be monitored will be used to communicate about the crime  Target must be notified within 90 days
  • 11.  FISA surveillance requires a more comprehensive application process:  The Attorney General (via the Office of Intelligence) submits a classified application to the FISC  Standard for approval is probable cause to believe that the target is a foreign power, and that the facilities targeted will be used by that foreign power  May authorize surveillance of a foreign power for one year, and of an agent of a foreign power for 90 days  Since 1979, nearly 34,000 warrant applications have been submitted to the FISC; only 11 have been denied
  • 12.  Criminal investigations designed to collect evidence, arrest suspects and secure convictions  Rely on human sources, electronic surveillance (T-III), physical searches (Rule 41), and obtaining third party records (subpoenas)  Conducted by FBI, DEA, ATF, Secret Service, and local law enforcement
  • 13.  Intelligence investigations designed to detect and disrupt foreign threats to US national security  Rely on human sources, electronic surveillance and covert physical searches (FISA), and obtaining third party records (NSLs)  Conducted by FBI, CIA, NSA, DoD, and others
  • 14.  By the 1990s, a series of judicial decisions and internal DOJ procedures created a “wall” between criminal investigators and intelligence collectors  Purpose was to avoid the appearance that a foreign intel investigation was becoming a criminal investigation  While not completely barring coordination – the wall so heavily regulated it that it effectively shut down communications between law enforcement and intel  It grew higher in 2000 when the FISC required FBI officials to certify they understood the limitations of the wall – resulting in a chilling effect even within the Bureau
  • 15.  Following the 9/11 attacks, the USA PATRIOT Act was approved with near unanimous vote in the Senate (98-1)  Section 218 tore down the wall between law enforcement, the intel community and the military  Updated surveillance laws to reflect new technologies and means of communications  Added a number of new money laundering crimes  Eliminated requirement that information sought by NSL pertain to foreign power or agent of foreign power  Enhanced penalties for terrorism-related crimes
  • 16.  Section 215 added a “business records” provision:  Permits the FBI to seek a court order directing the production of records/documents when there are reasonable grounds to believe the information sought is relevant to an international terrorism investigation  In the analogous contexts of civil discovery and criminal investigations, “relevance” is a broad standard that permits discovery of large volumes of data where doing so is necessary to identify much smaller amounts of information within that data
  • 17.  FISA Amendments Act of 2008 added newTitleVII  Section 702 allows for targeting of communications of foreign persons located outside the US  Grants telecoms immunity for cooperating with intelligence collections  Criticized for justifying NSA warrantless collection programs of US persons under guise of foreign surveillance  Also permits surveillance of US persons located overseas for up to one week without a warrant (previously 48 hrs)
  • 18.  Executive Order 12333 issued by President Reagan in 1981 (since amended)  Formalized roles of various players in the intelligence community (CIA, FBI, DoD)  Recently cited by NSA as authority to retain US communications collected “incidentally” during course of foreign intel investigation
  • 19.  Beginning June 5, 2013,The Guardian publishes a series of high-profile disclosures of the vast collection of data obtained by the National Security Agency and other intelligence groups.  On June 9, 2013, Edward Snowden, reveals that he was the source of leaks to the Guardian, as well as other major international newspapers. Snowden was an employee of the consulting firm Booz Allen Hamilton, where he worked as a contractor for the NSA.  On June 21, 2013, the United States charged Snowden with espionage. Snowden currently resides in Russia.
  • 20.  Publication of a top-secret FISC order againstVerizon Business Services, mandating it to hand over the call records for all of its customers  Publication of a classified PowerPoint presentation detailing NSA’s collection of a wide range of digital information from nine private Internet firms as part of a program known as “PRISM”  Publication of a list of world leaders subject to surveillance efforts
  • 21.  In response to Snowden’s allegations, the Department of Justice and NSA declassified several documents in attempt , to explain the USG’s surveillance efforts, including:  Declassified (redacted) FISC order  DOJWhite Paper on Section 215  These documents illustrate how the surveillance programs operate
  • 22.  The collected information is limited to “telephony metadata.” There was no recording of the content of telephone calls  It is not lawful for anyone to query the bulk telephony metadata for any purpose other than counterterrorism – FISC-imposed rules strictly limit any such queries.  Under the FISC orders authorizing the collection, authorized queries may only begin with an “identifier,” such as a telephone number, that is associated with a foreign terrorist organizations. An identifier used to commence a query of the data is referred to as a “seed.”
  • 23.  There must be a “reasonable, articulable suspicion” that a seed identifier used to query the data for foreign intelligence purposes is associated with a particular foreign terrorist organization.  When the seed identifier is reasonably believed to be used by a U.S. person, the suspicion of an association with a particular foreign terrorist organization cannot be based solely on activities protected by the First Amendment.  Under the FISC’s order, the NSA may also obtain information concerning second and third-tier contacts of the identifier. Based on this analysis of the data, the NSA then provides leads to the FBI or others in the Intelligence Community. For U.S. persons, these leads are limited to counterterrorism investigations.
  • 24.  President Obama appointed an independent group of experts to examine surveillance issues.  President Obama restricted the NSA to obtaining specific records only with an order from the Foreign Intelligence Surveillance Court.  “Two hops” instead of “three hops”  NSA created the new position of Civil Liberties and Privacy Officer. On January 17, 2014, President Obama publicly addressed the ongoing review of signals intelligence and surveillance programs.
  • 25.  Plaintiffs, led by conservative activist Larry Klayman, filed suit against the government in the District of Columbia in June 2013.  Plaintiffs claimed that the government’s telephony metadata collection under Section 215 violated their rights under the First, Fourth and Fifth Amendments.  In December 2013, Judge Richard J. Leon ruled that the NSA program most likely violates the Fourth Amendment.
  • 26.  “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.”  Judge Leon issues a temporary injunction, blocking the NSA’s collection of phone records, but stayed the action pending the government’s appeal  Oral arguments were held in the D.C. Circuit Court of Appeals in November.
  • 27.  Key issues at oral arguments:  Do plaintiffs have standing?  When does the “search” occur?  Does Smith v. Maryland apply?  Unusual in that two amici were able to present arguments as well.
  • 28.  The ACLU filed suit against the government in the Southern District of NewYork in June 2013.  Plaintiff claimed that the government’s telephony metadata collection under Section 215 violated its rights under the First and FourthAmendment.  In December 2013, JudgeWilliam H. Pauley III held that bulk telephony metadata collection under Section 215 of the USA PATRIOT Act is lawful and granted the government’s motion to dismiss.
  • 29.  Judge Pauley applies Smith v. Maryland  “Clear precedent applies because Smith held that a subscriber has no legitimate expectation of privacy in telephony metadata created by third parties. …Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones.”  Judge Pauley dismissed the ACLU’s First Amendment argument and said that any alleged chilling effect on free speech arises from a “speculative fear” resulting from a “highly attenuated chain of possibilities.”  The ACLU appealed, and oral arguments were held in November 2014
  • 30.  Plaintiff Smith, a nurse and mother of two who lives in rural Idaho, filed suit against the government over the NSA’s telephony metadata collection in the District of Idaho in June 2013.  Like Klayman and the ACLU, Smith claimed the NSA program violated her FourthAmendment rights.  Chief Judge B. LynnWinmill granted the government’s motion to dismiss because Smith v. Maryland controlled. AnnaJ. Smith (pictured with her husband, Peter) filed a suit in federal court in Idaho against the government's surveillance practices.
  • 31.  Oral Arguments were held in the Ninth Circuit yesterday (December 8, 2014)  Setting the stage for a Supreme Court opinion?  Chief JudgeWinmill referred to Judge Leon’s opinion, which distinguished the telephony metadata collection from the facts in Smith, as a “thoughtful and well-written decision.”  Chief JudgeWinmill invoked Justice Sotomayor’s statement that Smith is “ill-suited to the digital age.” U.S. v. Jones, 132 U.S. 945, 957 (2012).  Appellate cases in the Second, Ninth and D.C. Circuits – arguable the most powerful appellate courts in the country – with potentially conflicting rulings.

Editor's Notes

  1. 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.
  2. 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).
  3. 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).
  4. 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”
  5. 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.
  6. 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.
  7. 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
  8. 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.
  9. 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.
  10. 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.
  11. 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
  12. 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.
  13. 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.
  14. “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.”