Lawfare: ODNI Releases Three FISC Opinions by Cody M. Poplin:
The Office of the Director of National Intelligence released three redacted Foreign Intelligence Surveillance Court opinions (FISC) yesterday, respectively on a pen register and trap-and-trace case, Section 702 certifications, and the Government’s first application for orders requiring the production of call records under the USA FREEDOM Act.
In the New York Times, Charlie Savage digs into the November opinion of Judge Thomas F. Hogan reauthorizing Section 702 surveillance. In his 80-page opinion, Judge Hogan “rejected a legal challenge to rules permitted FBI agents, when working on domestic criminal cases, to search emails written by Americans that the government intercepted without a warrant in the name of gathering foreign intelligence.” Hogan ruled that the searches comply with both the Constitution and the FISA Amendments Act. Hogan did however order the government to begin reporting every time an FBI agent, while working on an ordinary criminal matter, queried the 702 database for an American suspect’s private messages and read one of them. The ruling marks the first time that the court reviewed the program after hearing arguments from the newly instituted Amicus Curiae created under the USA Freedom Act.
In a separate part of his opinion, Judge Hogan said that he was “extremely concerned” that the NSA continued to hold data that it was supposed to release, and suggested that NSA analysts “potentially” violated the law by failing to delete the information. Hogan also wrote that he was concerned by the FBI’s failure to screen out information protected by attorney-client privilege.