Haven't looked into the XKeyscore thing yet (at first glance it looks like a database similar to PRISM, which would tell little to nothing about collection or use, but still...) but some more relevant news, mostly from the
Lawfare roundup.Diane Feinstein has outlined some proposed reforms to the NSA metadata collection program. They are mostly about greater (but still limited) disclosure, but there are two significant substantial points;
●the ideological diversity of the FISA court be increased (86 percent of judges appointed to the court by Chief Justice John G. Roberts Jr. have been Republicans and the vast majority were prosecutors, according to media reports); and
●the FISA court review each query of the database as soon as practicable to determine its propriety under the law.
It's not immediately clear to me how much of a change the second would be (searches of the database already appear to have judicial review of some sort) but the former could be significant.
Especially if paired with the following proposal. From the
Senate hearing testimony of
James Carr [pdf];
The proposal I made in the op-ed piece is whether it would be worthwhile for the judges of the Foreign Intelligence Surveillance, when a government FISA application raises a new or novel issue of constitutional or statutory interpretation, to have discretion to designate a previously security-cleared attorney to challenge the government’s request.
Essentially it turns the FISA court from a warrant hearing where the government just submits its case to the judge into an adversarial court whenever there might be a substantial issue in front of it. This doesn't exist in normal search warrant hearings - ever - but as he points out a person has the opportunity to challenge a normal warrant that has been executed against them (at which time they become aware of it). A FISA can never be challenged in this way, so it would make sense to have an addition layer of protection front-loaded into them.
I've actually seen a couple of versions of this proposal but can't find the older articles again now. Once more, fuck google for killing reader and fuck feedly for not having a search function.
Finally,
the fifth circuit held that searches based on locational data from cell phones are not unconstitutional. OK, little contorted there, but basically a magistrate had held that such a search would violate the fourth amendment. The fifth circuit said it doesn't, although such a search may still not be constitutional for other reasons.
The held that locational data generated when you make a call from a cell phone is unprotected under the fourth because it is a business record of information 'knowingly conveyed' by the user. This only applies to cases where the cell company keeps such records and where the records deal with calls made by the user.
This is significant because it's similar to the pen register metadata rules, where logging calls made by a phone is unprotected under the fourth amendment. In this case the ruling is a bit narrower but still means the government has significant leeway when collecting metadata.
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Topic: NSA Leaks - GHCQ in court for violation of human rights (Read 105793 times)