FISA Court's Appointed Advocate Not Allowing Government's 'National Security' Assertions To Go Unchallenged

from the government-perturbed-by-amicus-sass-and-backtalk dept

The appointment of a FISA Court amicus to argue on behalf of the American public -- part of the surveillance reforms contained in the USA Freedom Act -- seems to be working out pretty well. FISC judge Michael Mosman appointed Washington DC attorney Preston Burton to examine one issue facing the court: whether the NSA can retain the bulk records it collected under Section 215. According to the new limitations, the NSA must immediately destroy any records that are not "foreign intelligence information." Unsurprisingly, the NSA is reluctant to begin this purge.

There are a certain amount of records the NSA must retain as they are part of ongoing lawsuits against the government. The NSA has stated that it's impossible to separate the phone records relevant to the lawsuits from the rest of the collection.

Burton -- in his response to the government's response to his original amicus brief -- doesn't find the NSA's claim of limited technical capabilities believable. In his first brief, he asked the following question:

Why has the government been unable to reach some stipulation with the plaintiffs to preserve only the evidence necessary for plaintiffs to meet their standing burden? Consider whether it is appropriate for the government to retain billions of irrelevant call detail records involving millions of people based on, what undersigned understands from counsel involved in that litigation, the government's stubborn procedural challenges to standing- a situation that the government has fostered by declining to identify the particular telecommunications provider in question and/or stipulate that the plaintiff is a customer of a relevant provided.
Faced with these pointed questions, the government chose to deploy its favorite dodge.
The government does not answer those questions. Instead the government reinvents the questions as suggesting:

...that the Government disclose national security information concerning the identity of providers, information subject to a pending state secrets assertion, is inappropriate, and the suggestion by amicus that the government stipulate to Article III standing in those cases is unfounded as a matter of law. Finally, the suggestion that preservation of bulk call detail records can be limited solely to the plaintiffs in multiple pending putative class actions is entirely unworkable.
Rather than answer questions about its alleged inability to retain only the records responsive to ongoing litigation, the government opted to raise the "national security" shield in hopes of shutting down this line of inquiry entirely.

Burton is unimpressed:
Amicus 's proposed inquiries were not quite the calamities the government conjures to avoid answering the questions. They were simply inquiries fostered by this Court's own observations that the preservation requirements conflict with minimization procedures designed to protect privacy rights of millions of uninvolved U.S. persons and to appropriately balance those privacy interests with the government's foreign intelligence justification for obtaining the information in the first place.
As Burton points out, the specifics of this program have been the subject of much public discussion, thanks to leaked documents which exposed the reach and breadth of the Section 215 collection. To pretend it's all still a huge secret is ridiculous. And yet, the government insists on doing so. The government's stance -- and its ongoing control of information it believes should be treated as "secret" -- leads to this incredible (in all the wrong ways) bit of redaction in Burton's response brief.


After censoring three sentences regarding "public discussion" of the program, the NSA allows Burton to have the last word on the most technologically-adept intelligence agency in the world claiming it's impossible to separate records it's been ordered to retain from records it's been ordered to destroy.
The government also states, without more, that limiting the records it holds to those belonging to plaintiffs is "entirely unworkable." The Court may fairly probe whether that conclusory declaration is sufficient or meaningful. It would perhaps be expensive and time-consuming to segregate the data or otherwise pare the archive but that is a choice the government may be required to make in deciding whether to continue to burrow in on its standing and procedural challenges.
It's unclear as to how much of an effect the presence of an amicus will have on domestic surveillance programs going forward. It's also unclear as to how much of an input these appointed positions will have going forward. Here, the amicus was limited to addressing the issue of Section 215 bulk record retention/destruction. It's unlikely an amicus will be on hand to challenge government applications for telco record production -- at least not in every case.

But Burton's presence has served an important purpose. For the first time, the government's assertions are being challenged by someone other than a FISA judge. Judging from the tone of the government's response to the first brief, it's not thrilled it has to show its work when it comes to record collection and retention. If nothing else, the presence of an amicus may finally force the government to use something more creative than "national security" when justifying its actions.

Filed Under: amicus, fisa, fisa court, fisc, nsa, preston burton, section 215, surveillance, usa freedom act


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  • identicon
    Anonymous Coward, 11 Dec 2015 @ 11:54am

    'it's impossible to separate records it's been ordered to retain from records it's been ordered to destroy'

    if this were true, how has the DoJ or whichever security agency been able to separate information relating to suspects in other, on going law suits from the information that does no good towards convicting anyone?

    we know this is bullshit stunt being pulled, but the security services haven't thought things through themselves. had they have done, they wouldn't have tried to use such a ridiculous argument!!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Dec 2015 @ 12:27pm

      Re:

      Agreed. If the records have enough information to be useful to an intelligence agency -- such as, say, the date and time of the call -- there is enough information to determine whether a given record should be kept or purged.

      Similarly, if the database has enough capability to be useful for agents, there is enough information to determine the records to be kept versus purged. If the agents cannot use dates or date ranges when searching for calls, I fail to see how the database could possibly be useful in any intelligence capacity.

      reply to this | link to this | view in chronology ]

    • identicon
      Quiet Lurcker, 11 Dec 2015 @ 12:54pm

      Re:

      More to the point, how in the ************ could they possibly hope to convince anyone that the metadata or the system they're using to store it is useful for anything to begin with?

      After all, they've just admitted they can't separate the stuff they need to keep from the stuff they need to get rid of.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2015 @ 11:56am

    Good to know this is actually an option. Whether the NSA is brought to task for it's blatant illegality and treasonus actions will be another thing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2015 @ 12:15pm

    Are you insane?

    Do you realize how much blackmail material they have on each and every new politician in the US? As their treasure trove of metadata increases and ages, more and more people caught up in it will have no choice but to vote however they are instructed. Why on earth would they willingly give up their cache of future budget and power increase extensions?

    reply to this | link to this | view in chronology ]

  • identicon
    DigDug, 11 Dec 2015 @ 12:34pm

    Funny but true story.

    Received one of those bulk "tell us what we should do with Gitmo?" poll questions.

    1) Close it
    2) Leave it Open
    3) Other

    If Other - explain.

    I chose 3 of course.
    Explanation? Use it to hold constitutional terrorists. The first to be shipped would be the entire Executive branch, 90% of the Congressional branch, and any Judicial branch members that haven't struck down the Patriot Act and all the rest of the unconstitutional laws the Congressional branch rubber-stamped for the traitorous scum in the Executive branch.

    reply to this | link to this | view in chronology ]

  • identicon
    Ed, 11 Dec 2015 @ 1:06pm

    Needs the McCaul solution

    The government also states, without more, that limiting the records it holds to those belonging to plaintiffs is "entirely unworkable."

    McCaul said:

    I will not tell you that it's an easy solution, but I've had very in-depth discussions that I do believe there are alternatives. There are some solutions to this problem. And I think the inherent problem, and the reason why I'm advocating the formation of this commission, is because of the reluctance of both parties to sit in the same room together. And so what this legislation provides -- in fact what it will mandate -- that all relevant parties sit in the same room together, and in a very short period of time, provide the Congress with solutions and recommendations for legislation to deal with what I consider to, as I said in my remarks, one of the most difficult challenges of this century, in dealing with counterterrorism and basically criminal behavior.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2015 @ 1:07pm

    The full quote:
    Finally, the suggestion that preservation of bulk call detail records can be limited solely to the plaintiffs in multiple pending putative class actions is entirely unworkable. It is ridiculous to expect us to search the records to find particular items of interest, and it is impossible for us to differentiate between relevant and irrelevant, unrelated data. We should not be expected to do so, since we're busy looking for terrorists. In the data. Um, never mind.

    reply to this | link to this | view in chronology ]

  • icon
    hjumper (profile), 12 Dec 2015 @ 9:15am

    Sounds like inefficiency

    Using "ciculus in probando" does not work for intelligent citizens. Was not this ability given to you to use on our behalf and not to our detriment? Do your jobs correctly else you suffer replacement is the point. You are now tasked to show that you are performing to our satisfaction.
    There is the proverb "you cannot both retain your cake and eat it".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Dec 2015 @ 12:40pm

    Solution is simple:
    1. If the NSA is not able to separate these conversations, they're technological nitwits and can't be trusted to retain ANYTHING. Period. NSA shouldn't be allowed to spy anymore as they haven't shown they can actually use the intel they gathered.
    2. NSA are the tech wizards we hold them for, in which case it will be no problem to retain just the parts relevant to the said legal challenges.

    Damned if they do and damned if they don't...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Dec 2015 @ 11:36am

    The NSA has stated that it's impossible to separate the phone records relevant to the lawsuits from the rest of the collection.


    I'm sure if they put their heads together and think really hard, they can do it. Maybe they can convince the tech people to help them

    reply to this | link to this | view in chronology ]


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