So, maybe you heard that the Electronic Frontier Foundation via FOIA obtained a copy of Judge Bates' October 3, 2011 Memorandum Opinion and Orders from the Foreign Intelligence Surveillance Court.
I must first, one professional to another, recognize and salute some very fine and apparently thorough redacts-personship: Nicely redacted yo'!
the court's review is
complicated by recent
state revelations
upstream collection
may acquire just a single
message or contain
multiple discrete
communications of no
collection target
fundamentally
shifting the Court's view of the
scope of collection
must reexamine
presumptions underlying
prior approvals
Footnote 14:
The Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.March 2009: The Court's "authorization of NSA's bulk acquisition of telephone . . . records . . . in the so-called 'big business records' matter 'ha[d] been premised on a flawed depiction of how the NSA uses . . . metadata,'" fostered,
from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government's submissions, and despite a government-devised and Court-mandated oversight regime.[citation redacted] Contrary to the government's repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been 'so frequently and systematically violated that it can fairly be said that this critical element of the overall . . . regime has never functioned effectively.' Id.The last paragraph of this footnote is entirely redacted. Structural analysis suggests (and the first paragraph states) it is the account of another event, after March 2009, in which the Court similarly expressed, in a not unclassified memorandum, the limits of its ability to exercise oversight of some other specific not-unclassified program, due to specific not unclassified misrepresentations by the program's proponents. Or it recounts even more egregious malfeasance by the proponents.
Footnote 17:
The FBI and the CIA do not receive unminimized communications that have been acquired through NSA's upstream collection of Internet communications. Sept. 7, 2011 Hearing Tr. at 61-62. Accordingly. . . ."
The Court will continue to credit those agencies' assertions and conclude their procedures "meet the statutory and constitutional requirements."
Later:
That provision required the FBI [redacted]
The new language proposed by the government would allow the FBI to [redacted] The government has advised the Court that this change was prompted by the fact that [redacted] Nevertheless, the current procedures require the FBI to [redacted]. The change is intended to eliminate the requirement of [redacted].
(that is the bit in the picture above)
Footnote 21:
The government is still in the process of developing its internal procedures and will not permit NSA analysts to begin using United States-person identifiers as selection terms until those procedures are completed.
Elsewhere:
But, for the first time, the government has now advised the Court that the volume and nature of the information it has been collecting is fundamentally different from what the Court had been led to believe.
Footnote 23:
The government describes an Internet "transaction" as "a complement of 'packets' traversing the Internet that together may be understood by a device on the Internet and, where applicable, rendered in an intelligible form to the user of that device."
Elsewhere:
At issue here are the personal [redacted] communication of U.S. persons and persons in the United States. A person's "papers" are among the four items that are specifically listed in the Fourth Amendment as subject to protection against unreasonable search and seizure. Whether they are transmitted by letter, telephone or e-mail, a person's private communications are akin to personal papers. Indeed, the Supreme Court has held that the parties to telephone communications and the senders and recipients of written communications generally have a reasonable expectation of privacy in the contents of those communications.
What's that redacted word or short phrase? Also, gosh, I don't think that all the other courts have been viewing electronic communications as "papers" under the Fourth Amendment
As to the rest, well it is chock full of distinct assessments of disparate programs, and procedures for minimizing in targeting, collection and retention U.S. person information for distinct agencies and operators under three or four layers of rules and authorizations: Rules of the Foreign Intelligence Surveillance Court, the Foreign Intelligence Surveillance Act, and the Fourth Amendment of the U.S. Constitution, at least. And the almost entirely opaque technical distinctions among signifiers of types of things being collected, their relation to common-usage "communications," and the various ways they may be categorized with respect to parties party to the transmission, the transaction, the communication, or any of the many ways a person may relate to an Internet transaction, and the statutory and otherwise recognized exceptions to the relevant standards. And some disappointing determinations that, due to some redacted technical minutia, these overbroad, vacuum-cleaner operations have, nevertheless, to the court's satisfaction, been narrowly tailored and reasonably designed to minimize inadvertent collection.
This all bears some close reading and research to work on making sense of some of the jargon, and maybe a flowchart . . . to aspire to understand the particular categorizations and their respective rationalizations under the "traditional" jurisprudence.
Note to Journalists and Congresspersons:
When interviewing or soliciting testimony from representatives of offices, agencies, administrations, secretariats, departments, ministries and bureaux of the State, first become familiar with the syntax employed in the controlling sections of the constitutions, articles, opinions, writs, memoranda, statutes, charters, orders, directives, regulations, guidelines or consensus statements which empower and direct the subject body to act in the subject field of activity, with particular heightened attention to employment of nouns and verbs of common usage used in a technical fashion or otherwise constrained or diverted from their common meaning.
There's also that bit about the Fourth Amendment that you may have seen highlighted by all the other outlets. Much of it is worth reading; some needful bits redacted.
Notwithstanding certain discussion of programs no doubt now discontinued and superseded, what is most interesting about this document -- note: this is not among the Snowden-leaked documents, although it has been referred to among those documents; it was declassified by the government in a FOIA response -- is its demonstration of the impotence of the court as an oversight body: The oversight court's identification of a pattern of misrepresentations on the part of government proponents, and, specifically, of the Attorney General and Director of National Intelligence on whose specific certifications as to the appropriately-targeted reasonableness of the methods, targets and minimization procedures, and their lawyers, who participated in misleading the court.
Rendering the opinion, Judge Bates recognizes in Footnote 14 that the present case is the most recent in an apparent pattern of misrepresentations by the proponents of surveillance programs requiring the Court's imprimatur, and then goes on to credit all the assertions made by proponents of the programs, to render an opinion on the facts thereby determined, as though to say, "Fooled me once, shame on me. Fooled me twi[redacted] Assuming the government does not intentionally mislead, an opinion of a court of law would look like this."