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On March 12, 2004, acting attorney general James B. Comey and the Justice Department’s top leadership reached the brink of resignation over electronic surveillance orders that they believed to be illegal. President George W. Bush backed down, halting secret foreign-intelligence-gathering operations that had crossed into domestic terrain. That morning marked the beginning of the end of STELLARWIND, the cover name for a set of four surveillance programs that brought Americans and American territory within the domain of the National Security Agency for the first time in decades. It was also a prelude to new legal structures that allowed Bush and then President Obama to reproduce each of those programs and expand their reach.What exactly STELLARWIND did has never been disclosed in an unclassified form. Which parts of it did Comey approve? Which did he shut down? What became of the programs when the crisis passed and Comey, now Obama’s expected nominee for FBI director, returned to private life?Authoritative new answers to those questions, drawing upon a classified NSA history of STELLARWIND and interviews with high-ranking intelligence officials, offer the clearest map yet of the Bush-era programs and the NSA’s contemporary U.S. operations.STELLARWIND was succeeded by four major lines of intelligence collection in the territorial United States, together capable of spanning the full range of modern telecommunications, according to the interviews and documents.

Two of the four collection programs, one each for telephony and the Internet, process trillions of “metadata” records for storage and analysis in systems called MAINWAY and MARINA, respectively. Metadata includes highly revealing information about the times, places, devices and participants in electronic communication, but not its contents. The bulk collection of telephone call records from Verizon Business Services, disclosed this month by the British newspaper the Guardian, is one source of raw intelligence for MAINWAY.The other two types of collection, which operate on a much smaller scale, are aimed at content. One of them intercepts telephone calls and routes the spoken words to a system called ­NUCLEON.For Internet content, the most important source collection is the PRISM project reported on June 6 by The Washington Post and the Guardian. It draws from data held by Google, Yahoo, Microsoft and other Silicon Valley giants, collectively the richest depositories of personal information in history.

The debate has focused on two of the four U.S.-based collection programs: PRISM, for Internet content, and the comprehensive collection of telephone call records, foreign and domestic, that the Guardian revealed by posting a classified order from the Foreign Intelligence Surveillance Court to Verizon Business Services.The Post has learned that similar orders have been renewed every three months for other large U.S. phone companies, including Bell South and AT&T, since May 24, 2006. On that day, the surveillance court made a fundamental shift in its approach to Section 215 of the Patriot Act, which permits the FBI to compel production of “business records” that are relevant to a particular terrorism investigation and to share those in some circumstances with the NSA. Henceforth, the court ruled, it would define the relevant business records as the entirety of a telephone company’s call database.The Bush administration, by then, had been taking “bulk metadata” from the phone companies under voluntary agreements for more than four years. The volume of information overwhelmed the MAINWAY database, according to a classified report from the NSA inspector general in 2009. The agency spent $146 million in supplemental counterterrorism funds to buy new hardware and contract support — and to make unspecified payments to the phone companies for “collaborative partnerships.”When the New York Times revealed the warrantless surveillance of voice calls, in December 2005, the telephone companies got nervous. One of them, unnamed in the report, approached the NSA with a request. Rather than volunteer the data, at a price, the “provider preferred to be compelled to do so by a court order,” the report said. Other companies followed suit. The surveillance court order that recast the meaning of business records “essentially gave NSA the same authority to collect bulk telephony metadata from business records that it had” under Bush’s asserted authority alone.

The first (and thus far only) roll-back of post-9/11 surveillance authorities was implemented over the weekend: The National Security Agency shuttered its program for collecting and holding the metadata of Americans’ phone calls under Section 215 of the Patriot Act. While bulk collection under Section 215 has ended, the government can obtain access to this information under the procedures specified in the USA Freedom Act. Indeed, some experts have argued that the Agency likely has access to more metadata because its earlier dragnet didn’t cover cell phones or Internet calling. In addition, the metadata of calls made by an individual in the United States to someone overseas and vice versa can still be collected in bulk — this takes place abroad under Executive Order 12333. No doubt the NSA wishes that this was the end of the surveillance reform story and the Paris attacks initially gave them an opening. John Brennan, the Director of the CIA, implied that the attacks were somehow related to “hand wringing” about spying and Sen. Tom Cotton (R-Ark.) introduced a bill to delay the shut down of the 215 program. Opponents of encryption were quick to say: “I told you so.”

But the facts that have emerged thus far tell a different story. It appears that much of the planning took place IRL (that’s “in real life” for those of you who don’t have teenagers). The attackers, several of whom were on law enforcement’s radar, communicated openly over the Internet. If France ever has a 9/11 Commission-type inquiry, it could well conclude that the Paris attacks were a failure of the intelligence agencies rather than a failure of intelligence authorities. Despite the passage of the USA Freedom Act, US surveillance authorities have remained largely intact. Section 702 of the FISA Amendments Act — which is the basis of programs like PRISM and the NSA’s Upstream collection of information from Internet cables — sunsets in the summer of 2017. While it’s difficult to predict the political environment that far out, meaningful reform of Section 702 faces significant obstacles. Unlike the Section 215 program, which was clearly aimed at Americans, Section 702 is supposedly targeted at foreigners and only picks up information about Americans “incidentally.” The NSA has refused to provide an estimate of how many Americans’ information it collects under Section 702, despite repeated requests from lawmakers and most recently a large cohort of advocates. The Section 215 program was held illegal by two federal courts (here and here), but civil attempts to challenge Section 702 have run into standing barriers. Finally, while two review panels concluded that the Section 215 program provided little counterterrorism benefit (here and here), they found that the Section 702 program had been useful.

There is, nonetheless, some pressure to narrow the reach of Section 702. The recent decision by the European Court of Justice in the safe harbor case suggests that data flows between Europe and the US may be restricted unless the PRISM program is modified to protect the information of Europeans (see here, here, and here for discussion of the decision and reform options). Pressure from Internet companies whose business is suffering — estimates run to the tune of $35 to 180 billion — as a result of disclosures about NSA spying may also nudge lawmakers towards reform. One of the courts currently considering criminal cases which rely on evidence derived from Section 702 surveillance may hold the program unconstitutional either on the basis of the Fourth Amendment or Article III for the reasons set out in this Brennan Center report. A federal district court in Colorado recently rejected such a challenge, although as explained in Steve’s post, the decision did not seriously explore the issues. Further litigation in the European courts too could have an impact on the debate.

The nation’s top technology firms and a coalition of privacy groups are urging Congress to place curbs on government surveillance in the face of a fast-approaching deadline for legislative action. A set of key Patriot Act surveillance authorities expire June 1, but the effective date is May 21 — the last day before Congress breaks for a Memorial Day recess. In a letter to be sent Wednesday to the Obama administration and senior lawmakers, the coalition vowed to oppose any legislation that, among other things, does not ban the “bulk collection” of Americans’ phone records and other data.

We know that there are some in Congress who think that they can get away with reauthorizing the expiring provisions of the Patriot Act without any reforms at all,” said Kevin Bankston, policy director of New America Foundation’s Open Technology Institute, a privacy group that organized the effort. “This letter draws a line in the sand that makes clear that the privacy community and the Internet industry do not intend to let that happen without a fight.” At issue is the bulk collection of Americans’ data by intelligence agencies such as the National Security Agency. The NSA’s daily gathering of millions of records logging phone call times, lengths and other “metadata” stirred controversy when it was revealed in June 2013 by former NSA contractor Edward Snowden. The records are placed in a database that can, with a judge’s permission, be searched for links to foreign terrorists.They do not include the content of conversations.

That program, placed under federal surveillance court oversight in 2006, was authorized by the court in secret under Section 215 of the Patriot Act — one of the expiring provisions. The public outcry that ensued after the program was disclosed forced President Obama in January 2014 to call for an end to the NSA’s storage of the data. He also appealed to Congress to find a way to preserve the agency’s access to the data for counterterrorism information.

President Barack Obama has conceded that mass collection of private data by the US government may be unnecessary and said there were different ways of “skinning the cat”, which could allow intelligence agencies to keep the country safe without compromising privacy. In an apparent endorsement of a recommendation by a review panel to shift responsibility for the bulk collection of telephone records away from the National Security Agency and on to the phone companies, the president said change was necessary to restore public confidence. “In light of the disclosures, it is clear that whatever benefits the configuration of this particular programme may have, may be outweighed by the concerns that people have on its potential abuse,” Obama told an end-of-year White House press conference. “If it that’s the case, there may be a better way of skinning the cat.”

Though insisting he will not make a final decision until January, this is the furthest the president has gone in backing calls to dismantle the programme to collect telephone data, a practice the NSA claims has legal foundation under section 215 of the Patriot Act. This week, a federal judge said the program “very likely” violates the US constitution. “There are ways we can do this potentially that give people greater assurance that there are checks and balances, sufficient oversight and transparency,” Obama added. “Programmes like 215 could be redesigned in ways that give you the same information when you need it without creating these potentials for abuse. That’s exactly what we should be doing: to evaluate things in a very clear specific way and moving forward on changes. And that’s what I intend to do.”

The president would not comment on a suggestion last weekend by Richard Ledgett, the NSA official investigating the Snowden leaks, that an amnesty might be appropriate in exchange for the return of the data Snowden took from the agency. Obama said he could not comment specifically because Snowden was “under indictment”, something not previously disclosed. While the Justice Department filed a criminal complaint against Snowden on espionage-related charges in June, there has been no public subsequent indictment, although it is possible one exists under gag order. The Justice Department referred comment on a Snowden indictment to the White House. Caitlin Hayden, the chief spokeswoman for the White House National Security Council, clarified that Obama was referring to the criminal complaint against Snowden. It remains unclear if there is an indictment under seal. 

Four months from now, at the same time that the National Security Agency finally abandons the massive domestic telephone dragnet exposed by whistleblower Edward Snowden, it will also stop perusing the vast archive of data collected by the program. The NSA announced on Monday that it will expunge all the telephone metadata it previously swept up, citing Section 215 of the U.S.A Patriot Act. The program was ruled illegal by a federal appeals court in May. In June, Congress voted to end the program, but gave the NSA until the end of November to phase it out. The historical metadata —  records of American phone calls showing who called who, when, and for how long — will be put out of the reach of analysts on November 29, although technical personnel will have access for three more months. The program started 14 years ago, and operated under rules requiring data be retained for five years, and then destroyed.

The only possible hold-up, ironically, would be if any of the civil lawsuits prompted by the program prohibit the destruction of the data. “The telephony metadata” will be “preserved solely because of preservation obligations in pending civil litigation,” the Office of the Director of National Intelligence announced. “As soon as possible, NSA will destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations.” ACLU staff attorney Alex Abdo told The Intercept his organization is “pleased that the NSA intends to purge the call records it has collected illegally.” But, he added: “Even with today’s pledge, the devil may be in the details.”

A member of the White House review panel on NSA surveillance said he was “absolutely” surprised when he discovered the agency’s lack of evidence that the bulk collection of telephone call records had thwarted any terrorist attacks.

“It was, ‘Huh, hello? What are we doing here?’” said Geoffrey Stone, a University of Chicago law professor, in an interview with NBC News. “The results were very thin.”While Stone said the mass collection of telephone call records was a “logical program” from the NSA’s perspective, one question the White House panel was seeking to answer was whether it had actually stopped “any [terror attacks] that might have been really big.” Advertise | AdChoices “We found none,” said Stone. Under the NSA program, first revealed by ex-contractor Edward Snowden, the agency collects in bulk the records of the time and duration of phone calls made by persons inside the United States.Stone was one of five members of the White House review panel – and the only one without any intelligence community experience – that this week produced a sweeping report recommending that the NSA’s collection of phone call records be terminated to protect Americans’ privacy rights.The panel made that recommendation after concluding that the program was “not essential in preventing attacks.”“That was stunning. That was the ballgame,” said one congressional intelligence official, who asked not to be publicly identified. “It flies in the face of everything that they have tossed at us.”

The conclusions of the panel’s reports were at direct odds with public statements by President Barack Obama and U.S. intelligence officials. “Lives have been saved,” Obama told reporters last June, referring to the bulk collection program and another program that intercepts communications overseas. “We know of at least 50 threats that have been averted because of this information.”

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.

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.

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.

AT&T this week released for the first time in the phone company’s 140-year history a rough accounting of how often the U.S. government secretly demands records on telephone customers. But to those who’ve been following the National Security Agency leaks, Ma Bell’s numbers come up short by more than 80 million spied-upon Americans. AT&T’s transparency report counts 301,816 total requests for information — spread between subpoenas, court orders and search warrants — in 2013. That includes between 2,000 and 4,000 under the category “national security demands,” which collectively gathered information on about 39,000 to 42,000 different accounts. There was a time when that number would have seemed high. Today, it’s suspiciously low, given the disclosures by whistleblower Edward Snowden about the NSA’s bulk metadata program. We now know that the secretive Foreign Intelligence Surveillance Court is ordering the major telecoms to provide the NSA a firehose of metadata covering every phone call that crosses their networks. An accurate transparency report should include a line indicating that AT&T has turned over information on each and every one of its more than 80 million-plus customers. It doesn’t.

That’s particularly ironic, given that it was Snowden’s revelations about this so-called “Section 215″ metadata spying that paved the way for the transparency report. In Snowden’s wake, technology companies pushed President Barack Obama to craft new rules allowing them to be more transparent about how much customer data they’re forced to provide the NSA and other agencies. In a Jan. 17 globally televised speech, Obama finally agreed. We will also enable communications providers to make public more information than ever before about the orders they have received to provide data to the government. But when the new transparency guidelines came out on Jan. 27, the language left it unclear whether discussing bulk collection was allowed, says Alex Abdo, an American Civil Liberties Union staff attorney. AT&T on Monday became the first phone company to release a transparency report under the new rules, and the results seem to confirm that the metadata collection is still meant to stay secret. “This transparency report confirmed our fear that the DOJ’s apparent concession was carefully crafted to prevent real transparency,” Abdo says. “If they want real transparency, they would allow the disclosure of the bulk telephone metadata program.”

The guidelines allow for the disclosure, in chunks of 1,000, of “the number of customer selectors [phone numbers] targeted under FISA non-content orders.” Since the bulk metadata collection doesn’t “target” any “selectors” it is, by definition, not subject to disclosure. This loophole is no accident of phrasing. In other sections of the guidelines covering National Security Letters — a type of subpoena that doesn’t require a judge’s signature — Obama allows disclosure of the “number of customer accounts affected.” If the guidelines used that same language for the FISA disclosures, AT&T’s transparency report would presumably disclose that more than 80 million customers — that would be all of AT&T’s customers — had been spied upon. The end result, observes Kevin Bankston, the policy director of the New America Foundation’s Open Technology Institute, is that Obama’s so-called reform has spawned a misleading report that provides false comfort to AT&T customers — and all Americans.

Director of National Intelligence James Clapper has won the infamous Rosemary Award for worst open government performance in 2013, according to the citation published today by the National Security Archive at www.nsarchive.org. Despite heavy competition, Clapper's "No, sir" lie to Senator Ron Wyden's question: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" sealed his receipt of the dubious achievement award, which cites the vastly excessive secrecy of the entire U.S. surveillance establishment. The Rosemary Award citation leads with what Clapper later called the "least untruthful" answer possible to congressional questions about the secret bulk collection of Americans' phone call data. It further cites other Clapper claims later proved false, such as his 2012 statement that "we don't hold data on U.S. citizens." But the Award also recognizes Clapper's fellow secrecy fetishists and enablers, including:

Gen. Keith Alexander, director of the NSA, for multiple Rose Mary Woods-type stretches, such as (1) claiming that the secret bulk collection prevented 54 terrorist plots against the U.S. when the actual number, according to the congressionally-established Privacy and Civil Liberties Oversight Board (PCLOB) investigation (pp. 145-153), is zero; (2) his 2009 declaration to the wiretap court that multiple NSA violations of the court's orders arose from differences over "terminology," an explanation which the chief judge said "strains credulity;" and (3) public statements by the NSA about its programs that had to be taken down from its website for inaccuracies (see Documents 78, 85, 87 in The Snowden Affair), along with public statements by other top NSA officials now known to be untrue (see "Remarks of Rajesh De," NSA General Counsel, Document 53 in The Snowden Affair).

Robert Mueller, former FBI director, for suggesting (as have Gen. Alexander and many others) that the secret bulk collection program might have been able to prevent the 9/11 attacks, when the 9/11 Commission found explicitly the problem was not lack of data points, but failing to connect the many dots the intelligence community already had about the would-be hijackers living in San Diego. The National Security Division lawyers at the Justice Department, for misleading their own Solicitor General (Donald Verrilli) who then misled (inadvertently) the U.S. Supreme Court over whether Justice let defendants know that bulk collection had contributed to their prosecutions. The same National Security Division lawyers who swore under oath in the Electronic Frontier Foundation's Freedom of Information Act lawsuit for a key wiretap court opinion that the entire text of the opinion was appropriately classified Top Secret/Sensitive Compartmented Information (release of which would cause "exceptionally grave damage" to U.S. national security). Only after the Edward Snowden leaks and the embarrassed governmental declassification of the opinion did we find that one key part of the opinion's text simply reproduced the actual language of the 4th Amendment to the U.S. Constitution, and the only "grave damage" was to the government's false claims.

Telephone and Internet metadata are protected by law under the aforementioned “pen register” statute.  That statute says that “no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).” Pen registers and trap and trace devices collect dialing, routing, signaling or addressing information. Violation of the statute is a criminal misdemeanor.

In a landmark victory for privacy, a federal appeals court ruled unanimously today that the mass phone-records program exposed two years ago by NSA whistleblower Edward Snowden is illegal because it goes far beyond what Congress ever intended to permit when it passed Section 215 of the Patriot Act. The ruling in ACLU v. Clapper is enormously significant, and not only because the program in question — the first to be revealed by Edward Snowden — is at the heart of a legislative reform effort playing out right now, or because it sparked the most significant debate about government surveillance in decades. The decision could also affect many other laws the government has stretched to the breaking point in order to justify dragnet collection of Americans’ sensitive information. Under the program, revealed in the Guardian on June 5, 2013, telecommunications companies hand over to the NSA, on a daily basis, records relating to the calls of all of their customers. Those records include information about who called whom, when, and for how long. The ACLU sued the NSA over the program just days after it was revealed, and we took the case to the Second Circuit Court of Appeals after it was dismissed by a district court.

A few points on what makes the decision so important. 1. It recognizes that Section 215 of the Patriot Act does not authorize the government to collect information on such a massive scale.

2. The decision’s significance extends far beyond the phone records program alone. It implicates other mass spying programs that we have learned about in the past two years and — almost certainly ­— others that the government continues to conceal from the public. For example, we know that the Drug Enforcement Administration, for decades, employed a similar definition of “relevance” to amass logs of every call made from the United States to as many as 116 different countries. The same theory was also used to justify the collection of email metadata. Both those programs have been discontinued, but the legal reasoning hasn’t, and it could very well be the basis for programs the government has never acknowledged to the public, including the CIA’s bulk collection of Americans’ financial records.

Laura K. Donohue is a professor at Georgetown University Law Center and director of Georgetown’s Center on National Security and the Law. The National Security Agency’s recently revealed surveillance programs undermine the purpose of the Foreign Intelligence Surveillance Act, which was established to prevent this kind of overreach. They violate the Fourth Amendment’s guarantee against unreasonable search and seizure. And they underscore the dangers of growing executive power.

Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembledabout any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.The government defends the programs’ legality, saying they comply with FISA and its amendments. It may be right, but only because FISA has ceased to provide a meaningful constraint.Under the traditional FISA, if the government wants to conduct electronic surveillance, it must make a classified application to a special court, identitying or describing the target. It must demonstrate probable cause that the target is a foreign power or an agent thereof, and that the facilities to be monitored will be used by the target.In 2008, Congress added section 702 to the statute, allowing the government to use electronic surveillance to collect foreign intelligence on non-U.S. persons it reasonably believes are abroad, without a court order for each target. A U.S. citizen may not intentionally be targeted.To the extent that the FISC sanctioned PRISM, it may be consistent with the law. But it is disingenuous to suggest that millions of Americans’ e-mails, photographs and documents are “incidental” to an investigation targeting foreigners overseas.

Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembledabout any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.The government defends the programs’ legality, saying they comply with FISA and its amendments. It may be right, but only because FISA has ceased to provide a meaningful constraint.

This morning, the Second Circuit issued a follow-on ruling to its May decision in ACLU v. Clapper (which had held that the NSA’s bulk telephone records program was unlawful insofar as it had not properly been authorized by Congress). In a nutshell, today’s ruling rejects the ACLU’s request for an injunction against the continued operation of the program for the duration of the 180-day transitional period (which ends on November 29) from the old program to the quite different collection regime authorized by the USA Freedom Act. As the Second Circuit (in my view, quite correctly) concluded, “Regardless of whether the bulk telephone metadata program was illegal prior to May, as we have held, and whether it would be illegal after November 29, as Congress has now explicitly provided, it is clear that Congress intended to authorize it during the transitionary period.” So far, so good. But remember that the ACLU’s challenge to bulk collection was mounted on both statutory and constitutional grounds, the latter of which the Second Circuit was able to avoid in its earlier ruling because of its conclusion that, prior to the enactment of the USA Freedom Act, bulk collection was unauthorized by Congress. Now that it has held that it is authorized during the transitional period, that therefore tees up, quite unavoidably, whether bulk collection violates the Fourth Amendment. But rather than decide that (momentous) question, the Second Circuit ducked:

We agree with the government that we ought not meddle with Congress’s considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority. We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief. To do so would take more time than the brief transition period remaining for the telephone metadata program, at which point, any ruling on the constitutionality of the demised program would be fruitless. In other words, because any constitutional violation is short-lived, and because it results from the “considered decision” of Congress, it would be fruitless to actually resolve the constitutionality of bulk collection during the transitional period.

Hopefully, it won’t take a lot of convincing for folks to understand just how wrong-headed this is. For starters, if the plaintiffs are correct, they are currently being subjected to unconstitutional government surveillance for which they are entitled to a remedy. The fact that this surveillance has a limited shelf-life (and/or that Congress was complicit in it) doesn’t in any way ameliorate the constitutional violation — which is exactly why the Supreme Court has, for generations, recognized an exception to mootness doctrine for constitutional violations that, owing to their short duration, are “capable of repetition, yet evading review.” Indeed, in this very same opinion, the Second Circuit first held that the ACLU’s challenge isn’t moot, only to then invokes mootness-like principles to justify not resolving the constitutional claim. It can’t be both; either the constitutional challenge is moot, or it isn’t. But more generally, the notion that constitutional adjudication of a claim with a short shelf-life is “fruitless” utterly misses the significance of the establishment of forward-looking judicial precedent, especially in a day and age in which courts are allowed to (and routinely do) avoid resolving the merits of constitutional claims in cases in which the relevant precedent is not “clearly established.” Maybe, if this were the kind of constitutional question that was unlikely to recur, there’d be more to the Second Circuit’s avoidance of the issue in this case. But whether and to what extent the Fourth Amendment applies to information we voluntarily provide to third parties is hardly that kind of question, and the Second Circuit’s unconvincing refusal to answer that question in a context in which it is quite squarely presented is nothing short of feckless.

After only one hour of floor debate, and no allowed amendments, the House of Representatives today passed legislation that opponents believe may give brand new authorization to the U.S. government to conduct domestic dragnets. The USA Freedom Act was approved in a 338-88 vote, with approximately equal numbers of Democrats and Republicans voting against. The bill’s supporters say it will disallow bulk collection of domestic telephone metadata, in which the Foreign Intelligence Surveillance Court has regularly ordered phone companies to turn over such data. The Obama administration claims such collection is authorized by Section 215 of the USA Patriot Act, which is set to expire June 1. However, the U.S. Court of Appeals for the Second Circuit recently held that Section 215 does not provide such authorization. Today’s legislation would prevent the government from issuing such orders for bulk collection and instead rely on telephone companies to store all their metadata — some of which the government could then demand using a “specific selection term” related to foreign terrorism. Bill supporters maintain this would prevent indiscriminate collection.

However, the legislation may not end bulk surveillance and in fact could codify the ability of the government to conduct dragnet data collection. “We’re taking something that was not permitted under regular section 215 … and now we’re creating a whole apparatus to provide for it,” Rep. Justin Amash, R-Mich., said on Tuesday night during a House Rules Committee proceeding. “The language does limit the amount of bulk collection, it doesn’t end bulk collection,” Rep. Amash said, arguing that the problematic “specific selection term” allows for “very large data collection, potentially in the hundreds of thousands of people, maybe even millions.” In a statement posted to Facebook ahead of the vote, Rep. Amash said the legislation “falls woefully short of reining in the mass collection of Americans’ data, and it takes us a step in the wrong direction by specifically authorizing such collection in violation of the Fourth Amendment to the Constitution.”

“While I appreciate a number of the reforms in the bill and understand the need for secure counter-espionage and terrorism investigations, I believe our nation is better served by allowing Section 215 to expire completely and replacing it with a measure that finds a better balance between national security interests and protecting the civil liberties of Americans,” Congressman Ted Lieu, D-Calif., said in a statement explaining his vote against the bill.

Twenty-two organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by EFF. At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.

Twenty-two organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by EFF. At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.

The case challenges the mass telephone records collection that was confirmed by the FISA Order that was published on June 5, 2013 and confirmed by the Director of National Intelligence (DNI) on June 6, 2013. The DNI confirmed that the collection was “broad in scope” and conducted under the “business records” provision of the Foreign Intelligence Surveillance Act, also known as section 215 of the Patriot Act and 50 U.S.C. section 1861. The facts have long been part of EFF’s Jewel v. NSA case. The case does not include section 702 programs, which includes the recently made public and called the PRISM program or the fiber optic splitter program that is included (along with the telephone records program) in the Jewel v. NSA case. 

The National Security Agency on Tuesday restarted its bulk collection of Americans’ phone records for a temporary period, following a federal court ruling this week that gave it the green light, U.S. officials said. The Foreign Intelligence Surveillance Court on Monday ruled that the NSA could resume gathering millions of Americans’ phone metadata — call times, dates and durations — to scan for links to foreign terrorists. [Here’s the court’s opinion] But the resumption is good for only 180 days — or until Nov. 29, in compliance with the USA Freedom Act. That law, which President Obama signed June 2 after a contentious congressional debate, will end the government’s bulk collection of metadata. It provided, however, for a transition period to allow the NSA time to set up an alternative system in which the data is stored by the phone companies.

After the law took effect, the government immediately applied to the surveillance court to restart its collection. Because Congress passed the bill a day after the underlying statute authorizing the NSA program had expired, there was a question as to whether lawmakers had authorized the government’s temporary harvesting of phone records. “In passing the USA Freedom Act, Congress clearly intended to end bulk data collection of business records and other tangible things,” Judge Michael W. Mosman wrote in his opinion. “But what it took away with one hand, it gave back — for a limited time — with the other. . . . It chose to allow a 180-day transitional period during which such [bulk] collection could continue.”

Sen. Ron Wyden (D-Ore.) said he saw no reason to resume collection, even on a temporary basis. “This illegal dragnet surveillance violated Americans’ rights for 14 years without making our country any safer,” he said. Mosman also ruled that FreedomWorks, a grass-roots libertarian organization, and its attorney, Ken Cuccinelli II, could submit “friend of the court” briefs that argue against the lawfulness of the metadata program. In May, a federal appeals court in New York held that the program was unlawful. The U.S. Court of Appeals for the 2nd Circuit ruled that the program stretched the meaning of the statute — Section 215 of the USA Patriot Act — to enable data collection in “staggering” volumes in the chance that “at some future point” there might be a need to search for terrorist links.

The National Security Agency would be required to prepare an unclassified report on “all NSA bulk collection activities,” the Senate Appropriations Committee directed in its report on the Fiscal Year 2015 Department of Defense Appropriations bill, published yesterday. The Committee told the NSA to prepare a report “describing all NSA bulk collection activities, including when such activities began, the cost of such activities, what types of records have been collected in the past, what types of records are currently being collected, and any plans for future bulk collection.” Such a report would be expected to clarify whether NSA bulk collection extends beyond the acknowledged telephone metadata program in Section 215 of the USA Patriot Act. The required report is to be “unclassified to the greatest extent possible,” the Senate Committee said. In the reporting requirements that it imposed on NSA, the Senate Appropriations Committee notably went beyond what was required by the Senate or House Intelligence Committees. The Appropriations Committee also directed NSA to submit additional reports on the total number of records acquired and reviewed by NSA in its bulk telephone metadata program over the past five years, and an estimate of the number of records of U.S. persons that have been acquired and reviewed in the telephone metadata program. Another unclassified report is required to provide “a list of terrorist activities that were disrupted, in whole or in part, with the aid of information obtained through NSA’s telephone metadata program.”

Update: Identical reporting language was included by the Senate Appropriations Committee last year in its report on the FY2014 Defense Appropriations bill (h/t @byersalex), yet the required NSA reports were not produced. At Emptywheel, Marcy Wheeler questions the utility of the proposed reports, particularly since the Senate Committee language lacks a clear, unambiguous definition of “bulk collection.”

The presidential advisory board on privacy that recommended a slew of domestic surveillance reforms in the wake of the Edward Snowden revelations reported today that many of its suggestions have been agreed to “in principle” by the Obama administration, but in practice, very little has changed. Most notably, the Privacy and Civil Liberties Oversight Board called attention to the obvious fact that one full year after it concluded that the government’s bulk collection of metadata on domestic telephone calls is illegal and unproductive, the program continues apace. “The Administration accepted our recommendation in principle. However, it has not ended the bulk telephone records program on its own, opting instead to seek legislation to create an alternative to the existing program,” the report notes.

And while Congress has variously debated, proposed, neutered, and failed to agree on any action, the report’s authors point the finger of blame squarely at President Obama. “It should be noted that the Administration can end the bulk telephone records program at any time, without congressional involvement,” the report says. Obama said a year ago that he favored an end to the government collection of those records if an alternative — such as keeping the records at the telephone companies, or with a third party — still allowed them to be searchable by the government. The White House was recently said to be “still considering” the matter. The board noted that Obama has accepted some, but not all, of the privacy safeguards it recommended — somewhat reducing the ease and depth with which National Security Agency agents can dig through the domestic data, but not, for instance, agreeing to delete the data after three years, instead of five.

But one recommendation in particular – that the intelligence community develop some sort of methodology to assess whether any of this stuff is actually doing any good — has been notably “not implemented.” “Determining the efficacy and value of particular counterterrorism programs is critical,” the board says. “Without such determinations, policymakers and courts cannot effectively weigh the interests of the government in conducting a program against the intrusions on privacy and civil liberties that it may cause.”

Eight days ago, the country’s four major newspapers reported a claim that the NSA collected 33% or less of US phone records (under the Section 215 program, they should have specified, but did not) because it couldn’t collect most cell phone metadata:

Since that time, I have pointed to a number of pieces of evidence that suggest these claims are only narrowly true: A WSJ article from June made it clear the cell gap, such as it existed, existed primarily for Verizon and T-Mobile, but their calls were collected via other means (the WaPo and NYT both noted this in their stories without considering how WSJ’s earlier claim it was still near-comprehensive contradicted the 33% claim) The NSA’s claimed Section 215 dragnet successes — Basaaly Moalin, Najibullah Zazi, Tsarnaev brothers — all involved cell users

Identifying Moalin via the dragnet likely would have been impossible if NSA didn’t have access to T-Mobile cell data The phone dragnet orders specifically included cell phone identifiers starting in 2008 Also since 2008, phone dragnet orders seem to explicitly allow contact-chaining on cell identifiers, and several of the tools they use with phone dragnet data specifically pertain to cell phones