Secrecy

Resources

Foreign Intelligence Law Collection — Professor Laura K. Donohue, the Agnes N. Williams Research Professor at Georgetown University Law Center, in collaboration with the Georgetown University Edward Bennett Williams Law Library, has developed a collection that includes foreign intelligence-related statutory and regulatory instruments; the legislative histories for statutory changes to the Foreign Intelligence Surveillance Act (FISA); publicly available and declassified opinions and orders issued by the Foreign Intelligence Surveillance Court (FISC) and Foreign Intelligence Surveillance Court of Review (FISCR); FISA-related cases in non-specialized Article III courts; statutorily-required reports on the operation of FISA and formal correspondence between FISC and Congress; FISC/FISCR Rules of Procedure; and an annotated bibliography of secondary sources related to FISA, FISC/FISCR, and foreign intelligence law.

ACLU Supreme Court Petition Challenging Secrecy of U.S. Surveillance Court 20 April 2021

Panel Discussions

The Patriot Act Turns 20: Taking Stock and Rethinking Surveillance Powers — What were the key civil liberties concerns back in the fall of 2001 and how have government surveillance activities changed over the last two decades? With the benefit of 20 years of experience, what authorities does the government need to keep the country safe while preserving civil liberties and civil rights in the U.S. and abroad? Should there be a comprehensive reexamination of government #surveillance authorities today? What changes should be made?

On October 5th, CDT hosted a discussion to tackle these questions and others that began with a fireside chat between former U.S. Senator Russ Feingold, the lone “no” vote in the Senate against the Patriot Act, and Laura Murphy, who managed the ACLU’s Legislative Office in Washington, D.C. during the bill’s passage. Their talk will be followed by a panel discussion and public Q&A session with:

* Laura Donohue, Director of Georgetown University’s Center on National Security and the Law, Designated FISA Court Amicus Curiae

* Chris Fonzone, General Counsel, Office of the Director of National Intelligence (ODNI)

* Sharon Bradford Franklin, Co-Director of the CDT Security & Surveillance Project, former Executive Director of the Privacy and Civil Liberties Oversight Board (PCLOB)

Moderated by Shane Harris, Washington Post intelligence and #nationalsecurity reporter and author of The Watchers: The Rise of America’s Surveillance State and @War: The Rise of the Military-Internet Complex.

Publications 

“Secrets and Lies — Exposed and Combatted: Warrantless Surveillance Under and Around the Law 2001-2017.” Secrecy and Society 2(1). https://scholarworks.sjsu.edu/secrecyandsociety/vol2/iss1/

This article was written over the period of June 2017 to March 2018.  Before June 2013, civil society and much of Congress were largely in the dark about the extent of the surveillance activities of the National Security Agency and the circumlocutions of statute undertaken by the White House and the Department of Justice. After the releases by Edward Snowden to specific journalists, the mendacity of Intelligence Community lawyers and leaders, the evasions of the law and manipulation of the FISA Court by the White House working with the Justice Department, and the scope of the violations of the Fourth Amendment protections of U.S. Persons (USPs) became increasingly apparent.

In order to understand the context for the “Snowden disclosures” and what they have meant for Executive Branch accountability, it is necessary to understand the course of efforts to rein in – or at least secure some (often minimal) oversight of – the U.S. Intelligence Community. These initiatives include the Foreign Intelligence Surveillance Act (FISA) and the amendments thereto, including, for the purposes of this article, the USA PATRIOT Act, the USA Freedom Act, and the FISA Amendments Act (FAA) and its reauthorizations. The article reviews the changes that were initiated in the Executive Branch (and to a lesser extent in the Legislative Branch), the role civil society played in pushing and utilizing greater transparency, and what the changes mean for government accountability to the public.

As news articles appear about the ongoing activities of the Intelligence Community in the areas covered in this article, they will be noted here.  It is strongly advised that one read “Secret and Lies” before taking any government statements at face value–or thinking the words necessarily mean what they appear to mean.


NSA Reports Data Deletion, NSA Press Release Release No: PA-010-18 ,28 June 2018. “…on May 23, 2018, NSA began deleting all call detail records (CDRs) acquired since 2015 under Title V of the Foreign Intelligence Surveillance Act (FISA). The Government relies on Title V of FISA to obtain CDRs, which do not include the content of any calls. In accordance with this law, the Government obtains these CDRs, following a specific court-authorized process. NSA is deleting the CDRs because several months ago NSA analysts noted technical irregularities in some data received from telecommunications service providers. These irregularities also resulted in the production to NSA of some CDRs that NSA was not authorized to receive. Because it was infeasible to identify and isolate properly produced data, NSA concluded that it should not use any of the CDRs. … The root cause of the problem has since been addressed for future CDR acquisitions, and NSA has reviewed and revalidated its intelligence reporting to ensure that the reports were based on properly received CDRs.

NSA criticized for ‘increased risk’ of jeopardizing civil liberties, Fifth Domain, Justin Lynch, 25 July 2018.  The National Security Agency is at an “increased risk” of jeopardizing civil liberties and the privacy of American citizens, according to an inspector general report that comes just months after a controversial program that collects emails and phone calls was extended. The NSA watchdog said that agency analysts performed “noncompliant” searches using the organization’s Foreign Intelligence Surveillance Act Authority, which were caused by “human error, incomplete understanding of the rules, and gaps in guidance.”According to the report, which covered the period from October 1, 2017, to March 31, 2018 the unauthorized searches were related to the FISA’s counterterrorism authority. …The inspector general also criticized the agency for “incomplete” documentation of internal processes related to foreign dissemination of FISA data, which “increases the risk of noncompliance.”In another example, the NSA watchdog said that three open-source capabilities of the agency posed similar risks to citizens, as well as spreading classified material.

 

 

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