Jennifer Granick's blog

Yesterday, I wrote generally about the problems with section 702 of the FISA Amendments Act (FAA). Today I focus on categories of information—including content—that NSA collects under section 702 but maybe never minimizes—meaning one of the few safeguards for U.S. person privacy is non-existent. In short, since the thirteen-page 702 minimization procedures only apply to communications, and since today's NSA probably excludes unshared cloud-stored data from the definition of communications, it's possible no minimization rules apply to protect American privacy. Read more about Reforming 702: Does NSA Minimize Cloud Files?

I've written a lot about the problems with the FISA Amendments Act and section 702, which is the legal basis for the PRISM surveillance program and involves warrantless collection of communications contents via targeting non-U.S. individuals or entities reasonably believed to be located abroad.

Important FAA Amendments Need Public Support Read more about Time to Reform the FISA Amendments Act Section 702

Yesterday, Professor Richard Epstein wrote a post for Just Security recommending unmodified continuation of the NSA’s bulk phone records collection. Today, I responded to his post, and explained why I think Richard's position is a surprising divergence from what I understand his values to be. Read more about Don’t Close Your Eyes to Surveillance Dangers: A Response to Richard Epstein

Yesterday's report from the independent Privacy and Civil Liberties Oversight Board, or PCLOB, confirms what Christopher Sprigman and I said back in June of last year in our New York Times Op Ed “The Criminal NSA”. The NSA’s telephone record metadata program, in which it collects the calling records of almost everyone inside the United States, is illegal. Amend that: it’s screamingly illegal. Flat out. Read more about Told Ya So: NSA's Collection Of Metadata Is Screamingly Illegal

Cross posted from Just Security. Read more about New Report Questions Value of Section 702 Warrantless Surveillance

When should courts follow legal precedent and when should the law change?  This is a debate that underlies this month’s contrary decisions about the constitutionality of government collection of telephone call metadata under section 215 of the USA PATRIOT Act.  And despite this week’s dual holdings in favor of the government—on this issue and on the issue of laptop border searches—a judicial consensus may be emerging that the Fourth Amendment must evolve along with technology and government surveillance capabilities. Read more about Prediction for 2014: The Fourth Amendment Evolves to Regulate Mass Surveillance

Yesterday, I wrote that the report from the President’s Review Group on Intelligence and Communications Technologies--"Liberty And Security In A Changing World”—suggests reforms that would improve U.S. surveillance law’s protection of the rights of foreigners.  My non US-person friends seem underwhelmed, so I thought I’d take a moment to elaborate on the changes I’m talking about.  Read More.
  Read more about Foreigners and the Review Group Report: Part 2

Today’s report from the President’s Review Group on Intelligence and Communications Technologies–”Liberty And Security In A Changing World”—is impressive in a number of ways.  Importantly, it pushes consideration of the privacy and civil liberties rights of non-U.S. persons into the policy debate. Old-school national security wonks commonly express distain for the idea that the U.S. Read more about President's Review Board Says Protect Thy Neighbor’s Privacy

Today, the federal District Court for the District of Columbia held that the NSA's bulk telephone metadata collection program under the USA PATRIOT Act violates the 4th Amendment. This is a tremendously important ruling--the first time a public court has had the chance to rule on programs revealed by former NSA contractor Edward Snowden. Given the program's constitutional infirmities, it is more important than ever that Congress end this misuse of the USA PATRIOT Act. However, Deputy Attorney General James Cole testified earlier this week before the Senate Judiciary Committee that the NSA might continue its bulk collection of nearly all domestic phone call records, even if Congress does just that. The USA FREEDOM ACT has bipartisan sponsorship from dozens of lawmakers, all of whom agree that the core purpose of the bill is to end NSA dragnet collection of Americans’ communication data. Yet, Cole said that the reform legislation wouldn’t necessarily inhibit the NSA’s surveillance capabilities because “it’s going to depend on how the court interprets any number of the provisions that are in [the legislation].” Comments like this betray a serious problem inside the Executive Branch. The Administration and the intelligence community believe they can do whatever they want, regardless of the laws Congress passes, so long they can convince one of the judges appointed to the secretive Foreign Intelligence Surveillance Court (FISC) to agree. This isn’t the rule of law. This is a coup d’etat. Read more. Read more about A Common Law Coup d'Etat: How NSA's Creative Interpretations Of Law Subvert Congress And The Rule of Law

Cross-posted from Just Security.

By Jennifer Granick and Thomas Earnest Read more about Latest Snowden Documents Show NSA Tracks Americans’ Cell Location Data

In the latest news report based on documents revealed by Edward Snowden, we’ve learned that the NSA creates profiles of porn viewing, online sexual activity and more from its vast database of Internet content and transactional data as part of a plan to harm the reputations of those whom the agency believes are radicalizing others through speeches promoting disfavored—but not necessarily violent—political views. Read more about NSA SEXINT is the Abuse You’ve All Been Waiting For

In a new post over at Just Security, I look at the recently declassified Foreign Intelligence Surveillance Court (FISC) opinions on bulk collection of Internet "metadata". These opinions show that, once again, the NSA has conducted illegal spying. The new documents reveal the National Security Agency’s (NSA) systemic violation of rules for domestic collection and use of Internet metadata. Read more about It’s Just a Matter of Time Before Somebody Gets Hurt: New Just Security Post

NOVEMBER 1 UPDATE: I fixed the chart to correctly reflect that both bills authorized Amici participation and also allow the Constitutional Advocate to initiate and appeal to the FISA Court of Appeals. Read more about A Tale of Two Surveillance Reform Bills

Over at Just Security, I have a new post looking at the legal issues and new amici briefs in the Lavabit case. Read more about New Post: Hands Off Encryption! Say New Amici Briefs in Lavabit Case

I have a new post up at Just Security today.  In it, I point to the fact that ongoing NSA revelations show that significant  surveillance activities are taking place without either Foreign Intelligence Surveillance Court (FISC) or congressional oversight, even though these policies directly impact Americans’ privacy.  For example, this past Sunday, the Washington Post reported that the Read more about New Just Security Post: We All Go Down Together