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The Obama administration has asked a secret surveillance court to ignore a federal court that found bulk surveillance illegal and to once again grant the National Security Agency the power to collect the phone records of millions of Americans for six months. The legal request, filed nearly four hours after Barack Obama vowed to sign a new law banning precisely the bulk collection he asks the secret court to approve, also suggests that the administration may not necessarily comply with any potential court order demanding that the collection stop.

But Carlin asked the Fisa court to set aside a landmark declaration by the second circuit court of appeals. Decided on 7 May, the appeals court ruled that the government had erroneously interpreted the Patriot Act’s authorization of data collection as “relevant” to an ongoing investigation to permit bulk collection. Carlin, in his filing, wrote that the Patriot Act provision remained “in effect” during the transition period. “This court may certainly consider ACLU v Clapper as part of its evaluation of the government’s application, but second circuit rulings do not constitute controlling precedent for this court,” Carlin wrote in the 2 June application. Instead, the government asked the court to rely on its own body of once-secret precedent stretching back to 2006, which Carlin called “the better interpretation of the statute”.

But the Fisa court must first decide whether the new bulk-surveillance request is lawful. On Friday, the conservative group FreedomWorks filed a rare motion before the Fisa court, asking it to reject the government’s surveillance request as a violation of the fourth amendment’s prohibition on unreasonable searches and seizures. Fisa court judge Michael Moseman gave the justice department until this coming Friday to respond – and explicitly barred the government from arguing that FreedomWorks lacks the standing to petition the secret court.

About 89,000 foreigners or organizations were targeted for spying under a U.S. surveillance order last year, according to a new transparency report. The report was released for the first time Friday by the Office of the Director of Intelligence, upon order of the president, in the wake of surveillance leaks by NSA whistleblower Edward Snowden. But the report, which covers only surveillance orders issued in 2013, doesn’t tell the whole story about how many individuals the spying targeted or how many Americans were caught in the surveillance that targeted foreigners. Civil liberties groups say the real number is likely “orders of magnitude” larger than this. “Even if it was an honest definition of ‘target’—that is, an individual instead of a group—that also is not encompassing those who are ancillary to a target and are caught up in the dragnet,” says Kurt Opsahl, deputy general counsel of the Electronic Frontier Foundation.

The report, remarkably, shows that the government obtained just one order last year under Section 702 of FISA—which allows for bulk collection of data on foreigners—and that this one order covered 89,138 targets. But, as the report notes, “target” can refer to “an individual person, a group, an organization composed of multiple individuals or a foreign power that possesses or is likely to communicate foreign intelligence information.” Furthermore, Section 702 orders are actually certificates issued by the FISA Court that can cover surveillance of an entire facility. And since, as the government points out in its report, the government cannot know how many people use a facility, the figure only “reflects an estimate of the number of known users of particular facilities (sometimes referred to as selectors) subject to intelligence collection under those Certifications,” the report notes.

“If you’re actually trying to get a sense of the number of human beings affected or the number of Americans affected, the number of people affected is vastly, vastly larger,” says Julian Sanchez, senior fellow at the Cato Institute. “And how many of those are Americans is impossible to say. But [although] you may not think you are routinely communicating with foreign persons, [this] is not any kind of assurance that your communications are not part of the traffic subject to interception.” Sanchez points out that each individual targeted is likely communicating with dozens or hundred of others, whose communications will be picked up in the surveillance. “And probably a lot of these targets are not individuals but entire web sites or companies. While [a company like the Chinese firm] Huawei might be a target, thousands of emails used by thousands of employees will be swept up.” How many of those employees might be American or communicating with Americans is unknown.

When the premiere surveillance reform bill of 2014 is reintroduced in the current Congress, it can count on antipathy and even opposition from many of the civil libertarian activists who pushed it to the brink of passage last year. The USA Freedom Act, a bill that aims to stop the National Security Agency (NSA) from its daily collection of US phone records in bulk, is set for a 2015 revamp after failing in the Senate last November. Supporters pledge to unveil it late this week or early next week.

This time, as reported by the Guardian, the bill is shaping up to be the preferred piece of legislation to extend the lifespan of a controversial part of the Patriot Act, known as Section 215. The NSA uses Section 215 to justify its domestic mass surveillance. The FBI considers it critical for terrorism and espionage investigations outside typical warrant or subpoena channels. Section 215 expires on 1 June. The bill’s architects consider the USA Freedom Act the strongest piece of legislation to roll back the domestic reach of US surveillance that Congress will pass. But a new coalition of civil libertarian groups on the left and the right is already looking past the bill, in the hopes of broadening what is possible – something they consider realistic, thanks to the intelligence community’s fervent desire to avoid the expiration of Section 215.

Director of National Intelligence James Clapper this morning released a report detailing new rules aimed at reforming the way signals intelligence is collected and stored by certain members of the United States Intelligence Community (IC). The long-awaited changes follow up on an order announced by President Obama one year ago that laid out the White House’s principles governing the collection of signals intelligence. That order, commonly known as PPD-28, purports to place limits on the use of data collected in bulk and to increase privacy protections related to the data collected, regardless of nationality. Accordingly, most of the changes presented as “new” by Clapper’s office  (ODNI) stem directly from the guidance provided in PPD-28, and so aren’t truly new. And of the biggest changes outlined in the report, there are still large exceptions that appear to allow the government to escape the restrictions with relative ease. Here’s a quick rundown.

National security letters (NSLs). The report also states that the FBI’s gag orders related to NSLs expire three years after the opening of a full-blown investigation or three years after an investigation’s close, whichever is earlier. However, these expiration dates can be easily overridden by by an FBI Special Agent in Charge or a Deputy Assistant FBI Director who finds that the statutory standards for secrecy about the NSL continue to be satisfied (which at least one court has said isn’t a very high bar). This exception also doesn’t address concerns that NSL gag orders lack adequate due process protections, lack basic judicial oversight, and may violate the First Amendment.

Retention policy for non-U.S. persons. The new rules say that the IC must now delete information about “non-U.S. persons” that’s been gathered via signals intelligence after five-years. However, there is a loophole that will let spies hold onto that information indefinitely whenever the Director of National Intelligence determines (after considering the views of the ODNI’s Civil Liberties Protection Officer) that retaining information is in the interest of national security. The new rules don’t say whether the exceptions will be directed at entire groups of people or individual surveillance targets.  Section 215 metadata. Updates to the rules concerning the use of data collected under Section 215 of the Patriot Act includes the requirement that the Foreign Intelligence Surveillance Court (rather than authorized NSA officials) must determine spies have “reasonable, articulable suspicion” prior to query Section 215 data, outside of emergency circumstances. What qualifies as an emergency for these purposes? We don’t know. Additionally, the IC is now limited to two “hops” in querying the database. This means that spies can only play two degrees of Kevin Bacon, instead of the previously allowed three degrees, with the contacts of anyone targeted under Section 215. The report doesn’t explain what would prevent the NSA (or other agency using the 215 databases) from getting around this limit by redesignating a phone number found in the first or second hop as a new “target,” thereby allowing the agency to continue the contact chain.

Three cases that likely lay the groundwork for a major privacy battle at the U.S. Supreme Court are pending before federal appeals courts, whose judges are taking their time announcing whether they believe the dragnet collection of Americans' phone records is legal. It’s been more than five months since the American Civil Liberties Union argued against the National Security Agency program in New York, three months since legal activist Larry Klayman defended his thus far unprecedented preliminary injunction win in Washington, D.C., and two months since Idaho nurse Anna Smith’s case was heard by appeals judges in Seattle. At the district court level, judges handed down decisions about a month after oral arguments in the cases. It’s unclear what accounts for the delay. It’s possible judges are meticulously crafting opinions that are likely to receive wide coverage, or that members of the three-judge panels are clashing on the appropriate decision.

Attorneys involved in the cases understandably are reluctant to criticize the courts, but all express hope for speedy resolution of their fights against alleged violations of Americans’ Fourth Amendment rights.

Though it’s difficult to accurately predict court decisions based on oral arguments, opponents of the mass surveillance program may have reason for optimism.

Man, at some point Congress is going to have to declare the FBI legally contemptuous and throw them in jail. They continue to refuse to cooperate with DOJ’s Inspector General, as they have been for basically 5 years. But in Michael Horowitz’ latest complaint to Congress, he adds a new spin: FBI is not only obstructing his investigation of the FBI’s management impaired surveillance, now FBI is obstructing his investigation of DEA’s management impaired surveillance. I first reported on DOJ IG’s investigation into DEA’s dragnet databases last April. At that point, the only dragnet we knew about was Hemisphere, which DEA uses to obtain years of phone records as well as location data and other details, before it them parallel constructs that data out of a defendant’s reach.

But since then, we’ve learned of what the government claims to be another database — that used to identify Shantia Hassanshahi in an Iranian sanctions case. After some delay, the government revealed that this was another dragnet, including just international calls. It claims that this database was suspended in September 2013 (around the time Hemisphere became public) and that it is no longer obtaining bulk records for it. According to the latest installment of Michael Horowitz’ complaints about FBI obstruction, he tried to obtain records on the DEA databases on November 20, 2014 (of note, during the period when the government was still refusing to tell even Judge Rudolph Contreras what the database implicating Hassanshahi was). FBI slow-walked production, but promised to provide everything to Horowitz by February 13, 2015. FBI has decided it has to keep reviewing the emails in question to see if there is grand jury, Title III electronic surveillance, and Fair Credit Reporting Act materials, which are the same categories of stuff FBI has refused in the past. So Horowitz is pointing to the language tied to DOJ’s appropriations for FY 2015 which (basically) defunded FBI obstruction. Only FBI continues to obstruct.

There’s one more question about this. As noted, this investigation is supposed to be about DEA’s databases. We’ve already seen that FBI uses Hemisphere (when I asked FBI for comment in advance of this February 4, 2014 article on FBI obstinance, Hemisphere was the one thing they refused all comment on). And obviously, FBI access another DEA database to go after Hassanshahi. So that may be the only reason why Horowitz needs the FBI’s cooperation to investigate the DEA’s dragnets. Plus, assuming FBI is parallel constructing these dragnets just like DEA is, I can understand why they’d want to withhold grand jury information, which would make that clear. Still, I can’t help but wonder — as I have in the past — whether these dragnets are all connected, a constantly moving shell game. That might explain why FBI is so intent on obstructing Horowitz again.

A new study says that the U.S. tech industry is likely to lose more than $35 billion from foreign customers by 2016 because of concerns over government surveillance.“In short, foreign customers are shunning U.S. companies,” the authors of a new study from the Information Technology and Innovation Foundation write.ADVERTISEMENT“The U.S. government’s failure to reform many of the NSA’s surveillance programs has damaged the competitiveness of the U.S. tech sector and cost it a portion of the global market share,” they said.The think tank’s report found that the cost to the tech sector associated with ongoing concerns over surveillance programs run out of the U.S. was likely to “far exceed” $35 billion by 2016, an earlier estimate set by the group.

The group said that lawmakers must enact additional reforms to surveillance policy if they wish to help the tech sector regain the trust of foreign customers. That includes opposing “backdoors,” which allow law enforcement to access otherwise encrypted data, and signing off on trade agreements, including the controversial Trans-Pacific Partnership, that “ban digital protectionism.”The study’s authors found that the revelations about broad U.S. surveillance programs acted as a justification for foreign policymakers to enact protectionist policies aimed at aiding their own domestic technology sectors.Foreign companies have also used the information about U.S. surveillance programs to their advantage.“Some European companies have begun to highlight where their digital services are hosted as an alternative to U.S. companies,” the authors write.

American companies, they found, have lost contracts to foreign competitors over fears about mass surveillance.Earlier this month, President Obama signed the USA Freedom Act, a bill that reformed the three Patriot Act provisions that authorized the bulk, warrantless collection of Americans’ phone records. The bill was widely supported by technology companies, including giants like Apple and Google.

The American Civil Liberties Union (ACLU) has filed a motion to reveal the secret court opinions with “novel or significant interpretations” of surveillance law, in a renewed push for government transparency. The motion, filed Wednesday by the ACLU and Yale Law School’s Media Freedom and Information Access Clinic, asks the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence gathering activities in secret, to release 23 classified decisions it made between 9/11 and the passage of the USA Freedom Act in June 2015. As ACLU National Security Project staff attorney Patrick Toomey explains, the opinions are part of a “much larger collection of hidden rulings on all sorts of government surveillance activities that affect the privacy rights of Americans.” Among them is the court order that the government used to direct Yahoo to secretly scanits users’ emails for “a specific set of characters.” Toomey writes: These court rulings are essential for the public to understand how federal laws are being construed and implemented. They also show how constitutional protections for personal privacy and expressive activities are being enforced by the courts. In other words, access to these opinions is necessary for the public to properly oversee their government.

Although the USA Freedom Act requires the release of novel FISA court opinions on surveillance law, the government maintains that the rule does not apply retroactively—thereby protecting the panel from publishing many of its post-9/11 opinions, which helped create an “unprecedented buildup” of secret surveillance laws. Even after National Security Agency (NSA) whistleblower Edward Snowden revealed the scope of mass surveillance in 2013, sparking widespread outcry, dozens of rulings on spying operations remain hidden from the public eye, which stymies efforts to keep the government accountable, civil liberties advocates say. “These rulings are necessary to inform the public about the scope of the government’s surveillance powers today,” the ACLU’s motion states.

Toomey writes that the rulings helped influence a number of novel spying activities, including: The government’s use of malware, which it calls “Network Investigative Techniques” The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities The government’s use of “cybersignatures” to search through internet communications for evidence of computer intrusions The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA) The government’s warrantless surveillance of Americans under FISA Section 702—a controversial authority scheduled to expire in December 2017 The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act Without these rulings being made public, “it simply isn’t possible to understand the government’s claimed authority to conduct surveillance,” Toomey writes. As he told The Intercept on Wednesday, “The people of this country can’t hold the government accountable for its surveillance activities unless they know what our laws allow. These secret court opinions define the limits of the government’s spying powers. Their disclosure is essential for meaningful public oversight in our democracy.”

Eric Holder: The Justice Department could strike deal with Edward SnowdenMichael IsikoffChief Investigative CorrespondentJuly 6, 2015Former U.S. Attorney General Eric Holder. (Photo: Olivier Douliery-Pool/Getty) Former Attorney General Eric Holder said today that a “possibility exists” for the Justice Department to cut a deal with former NSA contractor Edward Snowden that would allow him to return to the United States from Moscow. In an interview with Yahoo News, Holder said “we are in a different place as a result of the Snowden disclosures” and that “his actions spurred a necessary debate” that prompted President Obama and Congress to change policies on the bulk collection of phone records of American citizens. Asked if that meant the Justice Department might now be open to a plea bargain that allows Snowden to return from his self-imposed exile in Moscow, Holder replied: “I certainly think there could be a basis for a resolution that everybody could ultimately be satisfied with. I think the possibility exists.”

But his remarks to Yahoo News go further than any current or former Obama administration official in suggesting that Snowden’s disclosures had a positive impact and that the administration might be open to a negotiated plea that the self-described whistleblower could accept, according to his lawyer Ben Wizner.

It’s also not clear whether Holder’s comments signal a shift in Obama administration attitudes that could result in a resolution of the charges against Snowden. Melanie Newman, chief spokeswoman for Attorney General Loretta Lynch, Holder’s successor, immediately shot down the idea that the Justice Department was softening its stance on Snowden. “This is an ongoing case so I am not going to get into specific details but I can say our position regarding bringing Edward Snowden back to the United States to face charges has not changed,” she said in an email.