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Paul Merrell

Former Justice attorney seeks $23 billion in damages for NSA surveillance programs - 0 views

www.washingtonpost.com/...-for-nsa-surveillance-programs

surveillance state NSA class action

shared by Paul Merrell on 14 Jun 13 - No Cached
  • A former Reagan-era Justice Department prosecutor who runs a right-leaning political-advocacy group is suing the federal government over its controversial electronic-surveillance programs. Activist attorney Larry Klayman filed two class-action lawsuits this week in the U.S. District Court for the District of Columbia, seeking a combined $23 billion in damages. Klayman, who founded the political advocacy group Freedom Watch, claims the National Security Administration surveillance programs that monitor phone data and Internet communications violate citizens’ reasonable expectation of privacy, as well as their rights to free speech and freedom from unreasonable searches and seizures.
  • Klayman named the NSA, the Justice Deparment, President Obama, Attorney General Eric Holder and 12 communications and Internet companies as defendants in a class-action lawsuit he filed on Wednesday. In that case, he seeks $20 billion in damages, as well as orders to stop the surveillance programs and eliminate any records collected through them. Earlier in the week, Klayman filed a separate lawsuit against Verizon and the Obama administration, requesting the same orders in addition to $3 billion in damages.
  • A former Reagan-era Justice Department prosecutor who runs a right-leaning political-advocacy group is suing the federal government over its controversial electronic-surveillance programs. Activist attorney Larry Klayman filed two class-action lawsuits this week in the U.S. District Court for the District of Columbia, seeking a combined $23 billion in damages. Klayman, who founded the political advocacy group Freedom Watch, claims the National Security Administration surveillance programs that monitor phone data and Internet communications violate citizens’ reasonable expectation of privacy, as well as their rights to free speech and freedom from unreasonable searches and seizures.
Paul Merrell

Third group wants in on Larry Klayman NSA case - POLITICO.com - 0 views

www.politico.com/...n-klayman-nsa-case-196194.html

surveillance-state NSA Klayman 215-metadata civil-liberties

shared by Paul Merrell on 30 Sep 14 - No Cached
  • A third civil liberties organization is asking a federal appeals court for time to defend the only federal court ruling challenging the legality of the National Security Agency's bulk collection of information on U.S. telephone calls. The Center for National Security Studies, a D.C.-based group which advocates for individual liberties and government transparency, asked the U.S. Court of Appeals for the D.C. Circuit Friday to allow the group time to argue that U.S. District Court Judge Richard Leon's ruling that the counterterrorism program appeared to be illegal was correct, albeit on different grounds than Leon identified. Leon found the program likely unconstitutional as a violation of Fourth Amendment protections against unreasonable searches and seizures. However, CNSS and other advocates have argued that Leon never should have reached the constitutional issues because the NSA's bulk telephone metadata program was never authorized by Congress.
  • Government lawyers and numerous judges from the Foreign Intelligence Surveillance Court have concluded that the Section 215 of the Patriot Act creates a legal basis for the program, but that depends on the debatable notion that all U.S. telephone data are "relevant" to future terrorism investigations. Critics of that rationale say it would allow the government to collect virtually any type of data because it could become useful in the future. CNSS's motion filed Friday asks for 10 minutes of argument time on Nov. 4, when the D.C. Circuit takes up the government's appeal of Leon's ruling as well as several related appeals. The motion (posted here) says both the Justice Department and the conservative legal activist who brought the underlying lawsuits, Larry Klayman, are opposing the request for extra time. Last week, two other organizations?—the American Civil Liberties Union and the Electronic Frontier Foundation—asked together to join in the arguments on Klayman's case. The government and Klayman did not oppose that motion.
  • Some opponents of the NSA surveillance program are clearly nervous about leaving the arguments against the program solely to Klayman, a longtime conservative activist known as a rhetorical bombthrower.  In an online commentary last week, Klayman called for the U.S. military to use tactical nuclear weapons against the Islamic State militant group. However, he predicted that President Barack Obama will not do so because he "simply has no stomach for killing his creed en masse." The D.C. Circuit has not yet ruled on either of the motions to join in next month's arguments.
Paul Merrell

NSA grapples with huge increase in records requests - 0 views

www.usatoday.com/...3519889

surveillance state NSA litigation constitutional law

shared by Paul Merrell on 19 Nov 13 - No Cached
  • Fueled by the Edward Snowden scandal, more Americans than ever are asking the National Security Agency if their personal life is being spied on.And the NSA has a very direct answer for them: Tough luck, we're not telling you.Americans are inundating the NSA with open-records requests, leading to an 888% increase in such inquiries in the past fiscal year. Anyone asking is getting a standard pre-written letter saying the NSA can neither confirm nor deny that any information has been gathered."This was the largest spike we've ever had," said Pamela Phillips, the chief of the NSA Freedom of Information Act and Privacy Act Office, which handles all records requests to the agency. "We've had requests from individuals who want any records we have on their phone calls, their phone numbers, their e-mail addresses, their IP addresses, anything like that."
  • News reports of the NSA's surveillance program motivates most inquirers, she said.During the first quarter of the NSA's last fiscal year, which went from October to December 2012, it received 257 open-records requests. The next quarter, it received 241. However, on June 6, at the end of NSA's third fiscal quarter, news of Snowden's leaks hit the press, and the agency got 1,302 requests.In the next three months, the NSA received 2,538 requests. The spike has continued into the fall months and has overwhelmed her staff, Phillips said
  • The first court challenge to the federal government's mass surveillance of Americans' phone and Internet records opened Monday with two potential strikes against it, but the judge predicted it could go all the way to the Supreme Court.Federal District Court Judge Richard Leon expressed concern that conservative activist Larry Klayman and others lacked standing to bring the case and that his court lacked jurisdiction -- factors that could further insulate the spy programs from public oversight."To me, this is the overarching question," Leon said, referring to "this court's authority or lack thereof to inject itself into this situation."
  • ...3 more annotations...
  • The two programs, made public earlier this year by Edward Snowden, a former National Security Agency contractor now living in Russia, are reviewed by a top-secret court under the Foreign Intelligence Surveillance Act. But challengers from the political right and left are trying to have that court's periodic approvals circumvented.From the right on Monday came Klayman, a former Reagan administration lawyer who leads the advocacy group Freedom Watch. In an hour-long hearing, he called Leon "the last guard ... the last sentry to the tyranny in this country."But Justice Department lawyer James Gilligan said Klayman lacked standing to bring the case because he cannot prove the NSA examined his phone or Internet records. Gilligan also said Leon cannot review the statutory authority granted by Congress under FISA -- only the secret courts and the Supreme Court have that power.
  • Coincidentally, the Supreme Court on Monday turned down a chance to review the NSA's harvesting of Verizon phone records in a case brought by the watchdog group Electronic Privacy Information Center. The justices offered no reason for their decision.The law "makes it very difficult to challenge these determinations,' said Marc Rotenberg, president of the privacy group.Another challenge, brought by the American Civil Liberties Union, will be heard by U.S. District Court Judge William Pauley in Manhattan on Friday. Those two cases are likely to be appealed "upstairs," Leon said -- to appeals courts and possibly the Supreme Court.Both Klayman and the ACLU are seeking preliminary injunctions that would put a halt to the NSA surveillance. Both have targeted a program that sweeps up domestic telephone records, even though the targets are foreign terrorists. Klayman also is challenging a separate program that goes after cellphone and computer data from major wireless companies and Internet service providers.
  • Amnesty International and a coalition of lawyers, journalists and others brought the last Supreme Court challenge to government surveillance programs in 2012. But in February, the justices ruled 5-4 that the challengers lacked standing because they could not prove they had been wiretapped.Even if judges rule against Klayman and the ACLU, the controversial programs may get a full court test because the Justice Department has begun notifying criminal defendants whose arrests were based on warrantless surveillance. That makes the prospect of a future Supreme Court case more likely.
Paul Merrell

Path cleared for judge to block NSA phone surveillance program - POLITICO - 0 views

www.politico.com/...ne-surveillance-program-214492

surveillance state NSA litigation Klayman

shared by Paul Merrell on 08 Oct 15 - No Cached
  • A federal judge who seems keen on blocking the National Security Agency's phone records collection program has a clear path to doing so after a federal appeals court removed a potential obstacle Tuesday.The U.S. Court of Appeals for the D.C. Circuit formally ended an appeal in the case Tuesday, effectively returning control over the underlying lawsuit to U.S. District Court Judge Richard Leon.Leon could now act at any time to require the NSA to shut the program down, but such a move seems most likely after Thursday, when a hearing is scheduled on the suit filed by conservative activist Larry Klayman.
  • Nearly two years ago, Leon ruled that the NSA program--sometimes known as the Section 215 business records program--was likely unconstitutional and he ordered the program halted. That time he put his order on hold pending appeal, but at a hearing last month the judge sounded eager to issue a permanent injunction in the case before the program's scheduled end next month."The clock is running and there isn't much time between now and November 29," Leon told Klayman at the Sept. 2 session. "This court believes there are millions and millions of Americans whose constitutional rights have been and are being violated, but the window ... for action is very small ... It's time to move."
  • In May, the New York-based 2nd Circuit U.S. Court of Appeals ruled that the NSA phone metadata program was unlawful because the Patriot Act provision used to authorize it did not in fact provide authority for bulk collection of records largely unrelated to terrorism. The appeals court heard a new round of oral arguments on that case last month, focusing on the impact the law passed in June will have on the litigation.
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  • In August, the D.C. Circuit overturned Leon's self-stayed injunction in the case. The three-judge panel didn't get into the substance of the legality of the NSA program, but focused on whether Klayman and his clients had enough facts to reasonably allege that they were subject to the program.Two judges said Klayman might be able to show standing. Leon appears to consider that issue resolved because Klayman recently added to the case a California law firm that used the only telecom provider which government lawyers concede took part in the program: Verizon Business Network Services.
Paul Merrell

Judge Leon's Poignant, Yet Pointless, Injunction in Klayman | Just Security - 0 views

www.justsecurity.org/...t-pointless-injunction-klayman

surveillance state NSA litigation Klayman appeals

shared by Paul Merrell on 11 Nov 15 - No Cached
  • A long time 12 days ago, I wrote a post sharply criticizing the Second Circuit for deciding not to decide the Fourth Amendment question in ACLU v. Clapper, which arises from the continuation of the NSA’s bulk collection of phone records until the end of the six-month transitional period created by the USA Freedom Act (a period that expires on November 29). In that post, I called the Court of Appeals “feckless” for concluding that, in light of the program’s imminent expiration, resolution of the underlying Fourth Amendment claim would be “fruitless.” As a result, readers may well assume that I think highly of the opinion issued yesterday by DC District Judge Richard Leon, which did reach the Fourth Amendment question, and which, along lines similar to his December 2013 ruling (which the DC Circuit subsequently vacated for lack of standing), held that the program violates the Fourth Amendment, and enjoined its continuing operation as applied to two plaintiffs. As the old saying goes, “nope.” Instead, for reasons I elaborate upon below the fold, I fear that things have ended up precisely backwards — with the Second Circuit refusing to issue a ruling that could have had significant consequences, and with Judge Leon entering an injunction that will have precisely no impact (other than to waste a lot government lawyers’ and law clerks’ time) — and that could well lead future judges to stay their hand in a similar circumstance when they ought not to.
Paul Merrell

If the Supreme Court tackles the NSA in 2015, it'll be one of these five cases | Ars Te... - 0 views

arstechnica.com/...tll-be-one-of-these-five-cases

surveillance state NSA pending-litigation

shared by Paul Merrell on 18 Jan 15 - No Cached
  • Roughly a year and a half since the first Snowden disclosures, there's already been a judicial order to shut down the National Security Agency's bulk metadata collection program. The lawsuit filed by Larry Klayman, a veteran conservative activist, would essentially put a stop to unchecked NSA surveillance. And at the start of 2015, he remains the only plaintiff whose case has won when fighting for privacy against the newly understood government monitoring. However, it's currently a victory in name only—the judicial order in Klayman was stayed pending the government’s appeal.
  • Klayman v. Obama is only one of a number of notable national security and surveillance-related civil and criminal cases stemming fully or partially from the Snowden documents. In 2014, a handful of these advanced far enough through the legal system that 2015 is likely to be a big year for privacy policy. One or more could even end up before the Supreme Court. "I think it's impossible to tell which case will be the one that does it, but I believe that, ultimately, the Supreme Court will have to step in and decide the constitutionality of some of the NSA's practices," Mark Rumold, an attorney with the Electronic Frontier Foundation, told Ars. Rumold is one of the attorneys in First Unitarian Church, a case that is challenging government surveillance much like Klayman. Along with that pair, headline watchers should set alerts for cases such as American Civil Liberties Union (ACLU) v. Clapper, United States v. Moalin, and United States v. Muhtorov. Not only are there several other related cases that will likely be influenced by these decisions, but those five cases represent the strongest and most direct legal challenges to the current NSA surveillance state.
  • Before outlining the relevant cases, it's important to note the government's general justification for the legality of bulk metadata collection: the third-party doctrine. This theory was codified most recently from a 1979 Supreme Court decision in Smith v. Maryland. In the case, the court found that individuals do not have an inherent privacy right to data that has already been disclosed to a third party. So with telecom data for instance, the government has posited that because a call from one person to another forcibly transits Verizon’s network, those two parties have already shared that data with Verizon. Therefore, the government argues, such data can't be private, and it’s OK to collect it. But legal experts say that recent surveillance and privacy Supreme Court decisions could lead the courts to reconsider. The first Snowden revelation (published in June 2013) was that Verizon (and presumably other telecom firms) are routinely handing over all call records to the NSA. The metadata records include the date, times, and lengths of the calls.
  • Paul Merrell on 18 Jan 15
     
    Joe Mullins does an excellent job of outlining the major pending cases that challenge NSA surveillance of U.S. citizens and the state of relevant case law.  At least one of those cases is likely to arrive in the Supreme Court during 2015. 
Paul Merrell

Government Likens Ending Bulk Surveillance to Opening Prison Gates - 0 views

theintercept.com/...llance-to-opening-prison-gates

surveillance state NSA-reform Klayman litigation

shared by Paul Merrell on 10 Oct 15 - No Cached
  • A Justice Department prosecutor said Thursday that ordering the immediate end of bulk surveillance of millions of Americans’ phone records would be as hasty as suddenly letting criminals out of prison. “Public safety should be taken into consideration,” argued DOJ attorney Julia Berman, noting that in a 2011 Supreme Court ruling on prison overcrowding, the state of California was given two years to find a solution and relocate prisoners. By comparison, she suggested, the six months Congress granted to the National Security Agency to stop indiscriminately collecting data on American phone calls was minimal. Ending the bulk collection program even a few weeks before the current November 29 deadline would be an imminent risk to national security because it would create a dangerous “intelligence gap” during a period rife with fears of homegrown terrorism, she said.
  • The argument came during a hearing before U.S. District Court Judge Richard Leon on plaintiff Larry Klayman’s request for a preliminary injunction that would immediately halt the NSA program that tracks who in the United States is calling who, when, and for how long. The bulk telephony metadata program, which the NSA said was authorized under section 215 of the USA Patriot Act, was closed down by Congress in June with the passage of new legislation—the USA Freedom Act. However, the new bill allowed for a grace period of six months in which the government could set up a less all-inclusive alternative..
  • The Second Circuit Court of Appeals in May ruled that the bulk telephony program was illegal. Judge Leon ruled in Klayman’s favor in 2013, calling the government’s spying “almost Orwellian.” When Berman made her analogy to releasing prisoners en masse, Leon responded: “That’s really a very different kind of situation, don’t you think?”. And Berman was unable to cite any evidence that the bulk collection prevented any sort of terrorist attack, or that ending it now would be a serious threat. “That’s a problem I had before—wonderful high lofty expressions, general vague terms…but [the government] did not share a single example,” Leon said. Klayman, whose arguments consisted mostly of accusing the government of lying and violating the law, decided by the end of the hearing that he actually wanted the entire USA Freedom Act stricken from the books—because he insisted that Congress, in allowing an unconstitutional program to proceed, had violated the Constitution itself. Judge Leon promised a ruling “as soon as possible.”
Paul Merrell

NSA phone program faces key court test | TheHill - 0 views

thehill.com/...e-program-faces-key-court-test

surveillance state NSA Klayman litigation

shared by Paul Merrell on 03 Nov 14 - No Cached
  • The National Security Agency (NSA) is getting its day in court.On Tuesday, a closely watched case over the spy agency’s most controversial program heads to the D.C. Circuit Court of Appeals, considered the second most powerful federal bench in the country.ADVERTISEMENTAlong with other high-profile court cases challenging the constitutionality of the NSA’s spying, civil liberties advocates are sensing that the wind is at their backs, even as Congress has failed to push legislation past the finish line.  “We want [the court] to reach the constitutional issues because it has to be decided now, for the sake of the future,” said Larry Klayman, the conservative lawyer whose case against the Obama administration is before the Circuit court. “And all we’re really asking is that the NSA adhere to the law.”Klayman’s case challenges the constitutionality of the NSA’s bulk collection of Americans’ phone records, a program revealed by Edward Snowden last summer.
Paul Merrell

Feds operated yet another secret metadata database until 2013 | Ars Technica - 0 views

arstechnica.com/...t-metadata-database-until-2013

surveillance state DEA phone-metadata litigation

shared by Paul Merrell on 18 Jan 15 - No Cached
  • In a new court filing, the Department of Justice revealed that it kept a secret database of telephone metadata—with one party in the United States and another abroad—that ended in 2013. The three-page partially-redacted affidavit from a top Drug Enforcement Agency (DEA) official, which was filed Thursday, explained that the database was authorized under a particular federal drug trafficking statute. The law allows the government to use "administrative subpoenas" to obtain business records and other "tangible things." The affidavit does not specify which countries records were included, but specifically does mention Iran. This database program appears to be wholly separate from the National Security Agency’s metadata program revealed by Edward Snowden, but it targets similar materials and is collected by a different agency. The Wall Street Journal, citing anonymous sources, reported Friday that this newly-revealed program began in the 1990s and was shut down in August 2013.
  • The criminal case involves an Iranian-American man named Shantia Hassanshahi, who is accused of violating the American trade embargo against Iran. His lawyer, Mir Saied Kashani, told Ars that the government has clearly abused its authority. "They’ve converted this from a war on drugs to a war on privacy," he said. "[Hassanshahi] is not accused of any drug crime but they used this drug enforcement information to gather information against him, that's contrary to the law, and we will revisit that. We will bring motions in the court and we will appeal if necessary." Neither the DEA nor the Department of Justice immediately responded to Ars' query as to whether this program is continuing under a different authority.
  • The story begins in 2011, when a Department of Homeland Security (DHS) agent received a tip about someone who might be in violation of American sanctions against Iran. The source provided an e-mail from an Iranian businessman, Manoucher Sheiki, who was involved in acquiring power grid equipment. A second Homeland Security agent, Joshua Akronowitz, wrote in a 2013 affidavit that he searched Sheiki’s Iranian phone number in this database, but declined to explain exactly what kind of database it was. Akronowitz found that the Iranian number came up exactly one time in the database, and was linked to an 818 number, based in Los Angeles County. That number turned out to be the Google Voice number of Hassanshahi. DHS then subpoenaed Google, and got Hassanshahi’s call log and later, metadata on his Gmail account. By early 2012, the agency found out that he was set to return to Los Angeles from Iran. At LAX Airport, customs agents seized his phone, laptop, thumb drives, camcorder, and SIM cards and sent them to Homeland Security. Last year, Kashani, Hassanshahi’s lawyer, argued that this evidence should be suppressed on account that it was the "fruit of the poisonous tree"—obtained via illicit means. In support of his arguments, Kashani cited an important ongoing NSA-related lawsuit, Klayman v. Obama, which remains the only instance where a judge has order the NSA metadata program to be shut down—that order was stayed pending an appeal. (Earlier this month, Ars explored Klayman and other pending notable surveillance cases.)
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  • In a December 2014 opinion in the Hassanshahi case, US District Judge Rudolph Contreras allowed the evidence, but also required that the government provide a "declaration summarizing the contours of the law enforcement database used by Homeland Security Investigations to discover Hassanshahi’s phone number, including any limitations on how and when the database may be used." To comply with the judge’s order, Robert Patterson, the assistant special agent in charge of the DEA, wrote in the Thursday filing: As noted, this database was a federal law enforcement database. It could be used to query a telephone number where federal law enforcement officials had a reasonable articulable suspicion that the telephone number at issue was related to an ongoing federal criminal investigation. The Iranian number was determined to meet this standard based on specific information indicating that the Iranian number was being used for the purpose of importing technological goods to Iran in violation of United States law. Previously, the government had not revealed exactly how it began its investigation of Hassanshahi, and only referred cryptically to "[DHS]-accessible law enforcement databases," in Akronowitz’ 2013 and  2014 affidavits.
  • Similarly, other privacy-minded legal experts questioned the government’s tactics in this new revelation. "We just don’t know about the scope of these things, and that’s what’s disturbing," Andrew Crocker, a legal fellow at the Electronic Frontier Foundation, told Ars. His colleague, Hanni Fakhoury, an EFF attorney who used to be a federal public defender, added that he was "not surprised." "Bulk surveillance technologies and the dangerous legal theories that are used to support them trickle down, and here's a prime example of that," he wrote by e-mail. "The DEA's mandate is of course important but not at the level of national security where as you know there are serious legal questions about the propriety of this collection of phone metadata. And if the DEA has a program like this, it wouldn't surprise me if other agencies do too for other sorts of records the government has claimed it can collect with a subpoena (like bank records)."
  • Patrick Toomey, an attorney with the American Civil Liberties Union, chimed in to say that this indeed was a clear example of government overreach. "This disclosure underscores how the government has expanded its use of bulk collection far beyond the NSA and the national-security context, to rely on mass surveillance in ordinary criminal investigations," he said by e-mail. "It’s now clear that multiple government agencies have tracked the calls that Americans make to their parents and relatives, friends, and business associates overseas, all without any suspicion of wrongdoing," Toomey continued. "The DEA program shows yet again how strained and untenable legal theories have been used to secretly justify the surveillance of millions of innocent Americans using laws that were never written for that purpose."
  • Paul Merrell on 18 Jan 15
     
    The authorizing statute clearly limits the scope of the administrative subpoena authority to drug related criminal investigations. "In any investigation relating to his functions under this subchapter with respect to controlled substances, listed chemicals, tableting machines, or encapsulating machines, the Attorney General may subpena witnesses, compel the attendance and testimony of witnesses, and require the production of any records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to the investigation."
Paul Merrell

Appeals court clears hurdle for NSA | TheHill - 0 views

thehill.com/...ls-court-clears-hurdle-for-nsa

surveillance state NSA litigation Klayman appeals

shared by Paul Merrell on 11 Nov 15 - No Cached
  • A federal appeals court Tuesday eliminated a possible roadblock for the National Security Agency (NSA), delaying a judge’s order to halt the agency's controversial data collection.The order from the U.S. Court of Appeals for the D.C. Circuit sets the NSA on a path to wind down its bulk gathering of Americans’ phone records later this month.ADVERTISEMENTOn Monday, Judge Richard Leon of the U.S. District Court for D.C. had sought to end the program immediately, before a Nov. 29 deadline. Leon’s order would have ended the NSA’s collection of records about one California lawyer, though doing that might have required taking the entire system offline, he acknowledged.Late Tuesday afternoon, however, the appeals court stepped in and issued a stay on that order, preventing it from taking effect. The move from the appeals court was widely expected, given that Leon's order would merely kill the program three weeks early.“The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay,” it said in a brief order, “and should not be construed in any way as a ruling on the merits of that motion.”
  • Plaintiffs suing the Obama administration, led by conservative legal activist Larry Klayman, will have until noon Friday to submit arguments on whether the program should be shut down immediately. The government has until the following Monday. Few watchers expect the court to interfere with the NSA’s own schedule, which will take the phone records program offline Nov. 29.Under the current program, the spy agency collects metadata records about millions of Americans’ phone calls, which include the numbers involved in a call, when the call occurred and how long it lasted. The records do not include content about people’s conversations.This summer, Congress passed legislation ending the current system and forcing the NSA to move to a new process in which it requests a narrow set of records from individual phone companies.
  • On Monday, the agency told lawmakers on Capitol Hill that it has “successfully developed a technical architecture to support the new program” and that testing is “underway.”In his Monday order, Leon said that the NSA should not wait until the new system was up and running, since “even one day” of the current program poses a threat to the Constitution. 
  • Paul Merrell on 11 Nov 15
     
    So the Court of Appeals will sit on it until the end of the month and then rule that the case is moot. 
Paul Merrell

Supreme Court blocks challenge to NSA phone tracking - RT USA - 0 views

rt.com/...supreme-court-nsa-spying-906

surveillance state NSA litigation constitutional law Supreme-Court

shared by Paul Merrell on 19 Nov 13 - No Cached
  • The Supreme Court announced Monday morning that it would not be considering at this time a complaint filed months earlier that challenged the legality of the National Security Agency’s dragnet telephone surveillance program. The high court issued a notice early Monday without comment acknowledging that it would not be weighing in on a matter introduced this past June by a privacy watchdog group after NSA leaker Edward Snowden revealed evidence showing that the United States intelligence agency was collecting metadata pertaining to the phone calls of millions of American customers of the telecommunications company Verizon on a regular basis. That disclosure — the first of many NSA documents leaked by Mr. Snowden — prompted the Washington, DC-based Electronic Privacy Information Center, or EPIC, to ask the Supreme Court to consider taking action that would end the collection of phone records on a major scale.
  • When EPIC filed their petition in June, they wrote, “We believe that the NSA’s collection of domestic communications contravenes the First and Fourth Amendments to the United States Constitution, and violates several federal privacy laws, including the Privacy Act of 1974 and the Foreign Intelligence Surveillance Act of 1978 as amended.” “We ask the NSA to immediately suspend collection of solely domestic communications pending the competition of a public rulemaking as required by law. We intend to renew our request each week until we receive your response,” EPIC said. Five months later, though, the Supreme Court said this week that it would not be hearing EPIC’s plea. A document began circulating early Monday in which the high court listed the petition filed by the privacy advocates as denied. With other cases still pending, however, alternative routes may eventually lead to reform of the NSA’s habits on some level. Lower courts are still in the midst of deciding what action they will take with regards to similar lawsuits filed by other groups in response to the Snowden leaks and the revelations they made possible. The American Civil Liberties Union, the Electronic Frontier Foundation and conservative legal activist Larry Klayman have filed separate civil lawsuits in various US District Courts challenging the NSA’s program, all of which are still pending.
  • Cindy Cohn, the legal director of the EFF, told the Washington Post only weeks after the first Snowden leak appeared that the disclosures had been a “tremendous boon” to other matters being litigated, and pointed to no fewer than five previously-filed complaints challenging various government-led surveillance programs. "Now that this secret surveillance program has been disclosed, and now that Congressional leaders and legal scholars agree it is unlawful, we have a chance for the Supreme Court to weigh in,” EPIC lead counsel Alan Butler told The Verge on Monday.
Paul Merrell

Mootness and the 215 Challenges | Just Security - 0 views

justsecurity.org/...mootness-215-challenges

surveillance state 215-sunset pending-litigation

shared by Paul Merrell on 03 Jun 15 - No Cached
  • As a nerdy follow-up to the stories about last night’s expiration of section 215, I thought I’d say a quick word about how that denouement will affect the ongoing litigation challenging the bulk phone records program. In a nutshell, it’s a mixed bag. Although it’s well settled by the Supreme Court that most (albeit not all) suits seeking prospective relief become moot upon the repeal or expiration of the statute being challenged (since there’s nothing left to enjoin), it’s equally axiomatic that claims for damages survive such developments. To be sure, the plaintiffs in the Second and Ninth Circuit cases challenging section 215–ACLU v. Clapper and Smith v. Obama–both sought only injunctive and/or declaratory relief. In those cases, at least, there’s a non-frivolous argument that the claims were mooted by the expiration of section 215 (although, in ACLU, the plaintiffs also sought an order requiring the government “to purge from their possession all of the call records of Plaintiffs’ communications in their possession collected pursuant to the [phone records program],” a claim that certainly isn’t mooted by 215’s expiration). And in the D.C. Circuit challenge–Klayman v. Obama–the plaintiff also sought (rather excessive) actual, compensatory, and punitive damages in his complaint, which, if nothing else, should pretermit any argument from the government that the case is now moot.
  • In other words, we should still expect an opinion from the D.C. Circuit on the phone records program even now that section 215 has expired. As for the Second Circuit, the plaintiffs’ purge claim is almost certainly enough to defeat a government motion to vacate the Court of Appeals’ May 7 decision. The more intriguing question is whether the government might therefore seek rehearing en banc or certiorari. Either way, the bottom line is that the expiration of section 215 is likely to have no effect on at least two of the three pending challenges to the phone records program.
Paul Merrell

Whistleblowers File $100 Million Suit against NSA, FBI - WhoWhatWhy - 0 views

whowhatwhy.org/...0-million-suit-against-nsa-fbi

surveillance state NSA whistleblower-retaliation litigation Drake Loomis Wiebe Binney Roark

shared by Paul Merrell on 01 Sep 15 - No Cached
  • In a $100 million lawsuit that has garnered virtually no public attention, five National Security Agency (NSA) whistleblowers are accusing the federal government of illegally retaliating against them for alerting the NSA and Congress to a waste of taxpayer funds that benefitted a well-connected contractor.The lawsuit tells the story of the infancy of the NSA’s efforts to surveil the Internet. Back then, there were two programs for the spying agency to choose from — and the first was called ThinThread. It had been developed internally, was comparatively inexpensive, had been tested and proven to be effective, and included safeguards preventing the spying on Americans without a court warrant. The other was called Trailblazer. It did not include such safeguards, had not yet been shown to be effective, and cost 1,000 times more than ThinThread. Instead of being developed internally, it was to be outsourced to Science Applications International Corporation (SAIC), a politically connected contractor.The NSA chose Trailblazer.
  • In response, four NSA employees who had worked on ThinThread, as well as a congressional staffer, alerted Congress and the Office of the Inspector General of the NSA that the agency was wasting taxpayer funds. That is when their troubles began, according to the lawsuit.It alleges that the defendants, which include the NSA, FBI, and the Department of Justice, as well as individuals associated with them, “knowingly and intentionally fabricated” a claim that the plaintiffs leaked classified information to New York Times reporters Eric Lichtblau and James Risen.“[The defendants] used this fabricated claim for retaliation, illegal searches and seizures, physical invasion of their residences and places of business, temporary false imprisonment, the confiscation of their property, cancellation of security clearances leading to the loss of their jobs and employment, intentional infliction of emotional distress, harassment and intimidation,” the lawsuit alleges.It also states that the defendants should have known that the plaintiffs were not the leaks because the NSA “was tracking all domestic telephone calls for the supposed purpose of protecting national security.”
  • The plaintiffs are former NSA employees Thomas Drake, Ed Loomis, J. Kirk Wiebe, William Binney, and former congressional staffer Diane Roark. They seek “punitive damages in excess of $100 million because of Defendants [sic] callous and reckless indifference and malicious acts …” as well as well as an additional $15 million for lost wages and to cover costs.Larry Klayman, the prominent conservative public interest attorney and founder of Judicial Watch, filed the suit on August 20th. However, it is expected to be amended this week, and it is possible that additional publicity for the case will be sought then.
Gary Edwards

Great Privacy Essay: Fourth Amendment Doctrine in the Era of Total Surveillance | CIO - 0 views

www.cio.com/...era-of-total-surveillance.html

privacy the-Fourth-Amendment

shared by Gary Edwards on 04 Aug 14 - No Cached
  • Gary Edwards on 04 Aug 14
     
    "'Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance' is a thought-provoking essay written by a Fordham University law professor about how the reasonable expectation test for privacy is failing to protect us. Add into our networked world the third-party doctrine and we have little protection against unreasonable searches and seizures."
  • Paul Merrell on 05 Aug 14
     
    It doesn't detract substantially from the essay's central thesis, but an important part of the learned professor's heartfelt desires were delivered in a Supreme Court decision just decided, after the essay was published, Reilly v. California, http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf The Court held in relevant part: "We also reject the United States' final suggestion that officers should always be able to search a phone's call log, as they did in Wurie's case. The Government relies on Smithv. Maryland, 442 U. S. 735 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a "search" at all under the Fourth Amendment. See id., at 745-746. There is no dispute here that the officers engaged in a search of Wurie's cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label "my house" in Wurie's case." The effect there was to confine Smith v. Maryland, the foundation of the third-party doctrine, to its particular facts. In other words, the third-party doctrine is now confined to connected telephone numbers, the connect time, and the duration of the call. If any other metadata is gathered, such as location data, the third-party doctrine no longer applies. When you read the rest of the Reilly decision, you see a unanimous Supreme Court shooting down one government defense after another that have been used in the NSA's defense to mass telecommunications surveillance. But most interestingly, the Court unmistakably has laid the groundwork for a later decision drastically cutting back on digital surveillance without a search warrant based on particularized probable cause to believe that evidence of a specific crime has occurred and that the requested sear
Paul Merrell

Months After Appeals Argued, NSA Cases Twist in the Wind - US News - 0 views

www.usnews.com/...ed-nsa-cases-twist-in-the-wind

surveillance state NSA 215 litigation bulk-collection

shared by Paul Merrell on 15 Apr 15 - No Cached
  • 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.
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  • Two executive branch review panels have found the dragnet phone program has had minimal value for catching terrorists, its stated purpose. After years of presiding over the collection and months of publicly defending it, President Barack Obama pivoted last year and asked Congress to pass legislation ending the program. A measure to do so failed last year.
Paul Merrell

Bulk Collection Under Section 215 Has Ended… What's Next? | Just Security - 0 views

www.justsecurity.org/...lk-collection-ended-whats-next

surveillance state NSA-reform 215 bulk-collection EO-12333

shared by Paul Merrell on 01 Dec 15 - No Cached
  • 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.
  • ...2 more annotations...
  • The US intelligence community’s broadest surveillance authorities are enshrined in Executive Order 12333, which primarily covers the interception of electronic communications overseas. The Order authorizes the collection, retention, and dissemination of “foreign intelligence” information, which includes information “relating to the capabilities, intentions or activities of foreign powers, organizations or persons.” In other words, so long as they are operating outside the US, intelligence agencies are authorized to collect information about any foreign person — and, of course, any Americans with whom they communicate. The NSA has conceded that EO 12333 is the basis of most of its surveillance. While public information about these programs is limited, a few highlights give a sense of the breadth of EO 12333 operations: The NSA gathers information about every cell phone call made to, from, and within the Bahamas, Mexico, Kenya, the Philippines, and Afghanistan, and possibly other countries. A joint US-UK program tapped into the cables connecting internal Yahoo and Google networks to gather e-mail address books and contact lists from their customers. Another US-UK collaboration collected images from video chats among Yahoo users and possibly other webcam services. The NSA collects both the content and metadata of hundreds of millions of text messages from around the world. By tapping into the cables that connect global networks, the NSA has created a database of the location of hundreds of millions of mobile phones outside the US.
  • Given its scope, EO 12333 is clearly critical to those seeking serious surveillance reform. The path to reform is, however, less clear. There is no sunset provision that requires action by Congress and creates an opportunity for exposing privacy risks. Even in the unlikely event that Congress was inclined to intervene, it would have to address questions about the extent of its constitutional authority to regulate overseas surveillance. To the best of my knowledge, there is no litigation challenging EO 12333 and the government doesn’t give notice to criminal defendants when it uses evidence derived from surveillance under the order, so the likelihood of a court ruling is slim. The Privacy and Civil Liberties Oversight Board is currently reviewing two programs under EO 12333, but it is anticipated that much of its report will be classified (although it has promised a less detailed unclassified version as well). While the short-term outlook for additional surveillance reform is challenging, from a longer-term perspective, the distinctions that our law makes between Americans and non-Americans and between domestic and foreign collection cannot stand indefinitely. If the Fourth Amendment is to meaningfully protect Americans’ privacy, the courts and Congress must come to grips with this reality.
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