Verizon/Foreign Intelligence Surveillance Court matter actually is more egregious in scope than Judge Illston’s warrantless national security letters cases: U.S. District Judge Susan Illston in San Francisco rejected Google’s request to modify or throw out 19 so-called National Security Letters, a warrantless electronic data-gathering technique used by the FBI that does not need a judge’s approval. Her ruling came after a pair of top FBI officials, including an assistant director, submitted classified affidavits. This government victory comes despite Illston earlier ruling the letters unconstitutional in a separate case in March. It wasn’t a complete win for the Justice Department, however: Illston all but invited Google to try again, stressing that the company has only raised broad arguments, not ones “specific to the 19 NSLs at issue.” She also reserved judgment on two of the 19 NSLs, saying she wanted the government to “provide further information” prior to making a decision. — Declan McCullagh of CNET

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http://news.cnet.com/8301-13578_3-57587003-38/judge-orders-google-to-comply-with-fbis-secret-nsl-demands/

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The litigation taking place behind closed doors in Illston’s courtroom — a closed-to-the-public hearing was held on May 10 — could set new ground rules curbing the FBI’s warrantless access to information that Internet and other companies hold on behalf of their users. The FBI issued 192,499 of the demands from 2003 to 2006, and 97 percent of NSLs include a mandatory gag order.

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NSLs are controversial because they allow FBI officials to send secret requests to Web and telecommunications companies requesting “name, address, length of service,” and other account information about users as long as it’s relevant to a national security investigation. No court approval is required, and disclosing the existence of the FBI’s secret requests is not permitted.

Because of the extreme secrecy requirements, documents in the San Francisco case remain almost entirely under seal. Even Google’s identity is redacted from Illston’s four-page opinion, which was dated May 20 and remained undisclosed until now. But, citing initial filings, Bloomberg disclosed last month that it was Google that had initiated the legal challenge.

While the FBI’s authority to levy NSL demands predates the Patriot Act, it was that controversial 2001 law that dramatically expanded NSLs by broadening their use beyond espionage-related investigations. The Patriot Act also authorized FBI officials across the country, instead of only in Washington, D.C., to send NSLs.

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Electronic Frontier Foundation’s separate challenge  —

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Illston, who is stepping down from her post in July, said another reason for her decision is her desire not to interfere while the Ninth Circuit Court of Appeals is reviewing the constitutionality of NSLs in an unrelated case that she also oversaw.

In that separate lawsuit brought by the Electronic Frontier Foundation on behalf of an unnamed telecommunications company, Illston dealt a harsh blow to the bureau’s use of NSLs.

EFF had challenged the constitutionality of the portion of federal law that imposes nondisclosure requirements and limits judicial review of NSLs. Illston ruled that the NSL requirements “violate the First Amendment and separation of powers principles” and barred the FBI from invoking that language “in this or any other case.” But she gave the Obama administration 90 days to appeal to the Ninth Circuit, which it did on May 6.

Neither the FBI nor Google responded to requests for comment. (In March, Google began publishing summary statistics about NSLs it received, making it the first major Internet company to do so.)

These aren’t the first cases to tackle whether NSLs, including gag orders, are constitutional or not. In a 2008 ruling (PDF), the Second Circuit Court of Appeals handed down a mixed decision.

A three-judge panel of the Second Circuit took an odd approach: the judges agreed that the “challenged statutes do not comply with the First Amendment” but went on to rewrite the statute on their own to make it more constitutional. They drafted new requirements, including that FBI officials may levy a gag order only when they claim an “enumerated harm” to an investigation related to international terrorism or intelligence will result.

Illston’s decision in the Google NSL case said that the FBI had submitted “classified” evidence “intended to demonstrate that the 19 NSLs were issued in full compliance with the procedural and substantive requirements imposed by the Second Circuit.”

That includes classified declarations submitted by Stephanie Douglas, executive assistant director of the FBI’s national security branch, and Robert Anderson, assistant director of the counterintelligence division at FBI headquarters.

A 2007 report by the Justice Department’s inspector general found “serious misuse” of NSLs, and FBI director Robert Mueller pledged stricter internal controls. Mueller has also called the investigative technique invaluable.

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The Verizon matter, despite secret national security “court” authorization oversight,  actually is more egregious in its indiscriminate breadth/swath of intrusion into everyone’s privacy   —

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http://livewire.talkingpointsmemo.com/entry/author-of-patriot-act-nsa-phone-tracking-went

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Author Of Patriot Act: NSA Phone Tracking [Verizon data]  ‘Excessive And Un-American’

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Rep. Jim Sensenbrenner (R-WI), who wrote and introduced the PATRIOT Act to Congress in 2001, said in a statement Thursday that the National Security Agency overstepped its bounds by issuing a secret order to collect phone log records from millions of Americans.

“As the author of the Patriot Act, I am extremely troubled by the FBI’s interpretation of this legislation,” he said in a statement. “While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses.

He added: “The Bureau’s broad application for phone records was made under the so-called business records provision of the Act. I do not believe the broadly drafted FISA order is consistent with the requirements of the Patriot Act. Seizing phone records of millions of innocent people is excessive and un-American.”

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http://online.wsj.com/article/AP6913a999a8ca48279f208f15e240d9ba.html

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Former employees of the National Security Agency say the publishing of a court order asking Verizon to hand over all its phone calling records for a three-month period opens a new window on an operation that has been in place for years and involves all major U.S. phone companies.

“NSA has been doing all this stuff all along, and it’s been all these companies, not just one” William Binney told news program Democracy Now on Thursday. “They’re just continuing the collection of this data on all U.S. citizens.”

Binney, who worked at the NSA for almost 40 years, left the agency after the attacks of 9/11 because he objected to the expansion of its surveillance of U.S. citizens.

British newspaper The Guardian late Wednesday released an order from the secret Foreign Intelligence Surveillance Court, requesting Verizon to give the NSA the details on every phone call on its landline and wireless networks on a daily basis between April 25 and July 19.

Binney estimates that the NSA collects records on 3 billion calls per day.

“These are routine orders,” said Thomas Drake, another NSA whistleblower. “What’s new is we’re seeing an actual order, and people are surprised by it.”

“We’ve been saying this for years from the wilderness,” Drake told Democracy Now. “But it’s like, hey, everybody went to sleep while the government is collecting all these records.”

Drake started working for the NSA in 2001 and blew the whistle on what he saw as a wasteful and invasive program at the agency. He was later prosecuted for keeping classified information. Most of the charges were dropped before trial, and he was sentenced to one year of probation and community service.

The NSA’s original charter was to eavesdrop on communications between countries, not inside the U.S. That expansion of its mission appears to have happened after 9/11, but the agency has continuously denied that it spies on domestic communications.

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James Bamford, a journalist and author of several books on the NSA, said it’s very surprising to see that the agency tracks domestic calls, including local calls. In 2006, USA Today reported that the NSA was secretly collecting a database of domestic call information. However, some phone companies denied any involvement in such a program.

Bamford’s assumption was that the uproar over a separate, post-9/11 warrantless wiretapping program and the departure of the Bush administration meant that the NSA had been reined in.

“Here we are, under the Obama administration, doing it sort of like the Bush administration on steroids,” he said in an interview with the Associated Press. “This order here is about as broad as it can possibly get, when it comes to focusing on personal communications. There’s no warrant, there’s no suspicion, there’s no probable cause … it sounds like something from East Germany.”

Bamford believes the NSA collects the call records at a huge, newly built data center in Bluffdale, Utah.

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One Response to Verizon/Foreign Intelligence Surveillance Court matter actually is more egregious in scope than Judge Illston’s warrantless national security letters cases: U.S. District Judge Susan Illston in San Francisco rejected Google’s request to modify or throw out 19 so-called National Security Letters, a warrantless electronic data-gathering technique used by the FBI that does not need a judge’s approval. Her ruling came after a pair of top FBI officials, including an assistant director, submitted classified affidavits. This government victory comes despite Illston earlier ruling the letters unconstitutional in a separate case in March. It wasn’t a complete win for the Justice Department, however: Illston all but invited Google to try again, stressing that the company has only raised broad arguments, not ones “specific to the 19 NSLs at issue.” She also reserved judgment on two of the 19 NSLs, saying she wanted the government to “provide further information” prior to making a decision. — Declan McCullagh of CNET

  1. Pingback: NSA expert James Bamford: At a time when the NSA has lost its way and is increasingly infringing on the privacy of ordinary Americans, it shouldn’t come as much of a surprise that NSA employees — whether working for the agency or for one of its contra

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