BR 14-01 Notice (FISC 2014)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on January 22, 2014.
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UNITED STATES FOREIGN INTELLIGENCE SURVEILI-'ANCE cotmtt APR WASIDNGTON, D.C. IN RE APPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING THE PRODUCTION OF TANGIBLE THINGS 18 Pl1 4: 5I1 . . . . "'i ;~EA~'l'FL'''", r t~d tlALL r.r r-r.:w n~ ,.. "I._._, .i\ 1•.:1 l.1 URT 0 Docket No. BR 14-01 NOTICE REGARDING DOCUMENT FROM PLAINTIFFS IN JEWEL V. NSA AND FIRST UNITARIAN CHURCH V. NSA For the Court's information, the Government submits the attached document from counsel for the plaintiffs in First Unitarian Church ofLos Angeles v. National Security Agency) No. C 13-03287-JSW (N.D. Cal.), and Jewel v. National Security Agency, No. 08-cv-4373 (N.D. Cal.). See April 15, 2014 email from Cindy Cohn (attached~ Exhibit A). As the Govenur.er.: has previously informed this Court, and as this Court has recognized, see, e.g., March 12: ~014 Opinion and Order in Docket No. BR 14-01 at 4 n.3, 6, the topics discussed in the attached document are a matter of dispute pending before the Northern District of California. The Government will promptly notify the Court of any material developments in those district court cases. See id. at 7. Dated: April 18, 2014 Respectfully submitted, Stuart F. Delery Assistant Attorney General John P. Carlin Assistant Attorney General ~~V_ Tashina Gauhar Deputy Assistant Attorney General Kathleen R. Hartnett Deputy Assistant Attorney General National Security Division U.S. Department of Justice Civil Division U.S. Department of Justice 2 .. .r:. ·. ~ . f·· . ·. . ~ .. ' .· ' : :~ : i_ .. · :.· From: To: Cc: Subject: Date: Attachments: C!ndvCohn Beanan Marcia CQV>: eatton Rodnev CQV>: Dearinger Biyan CCM: stuart delery@usdoi goy; Otrt!n John .wsm; Gj!Ugan Jim Cav> Stephanje Shattucls; Rjck Wjebe; llano M Maazel; Thomas E Moore III Govemment"s Aprll 2, 2014 filing with the FISC Tuesday, Aprll 15, 2014 8:01:07 PM sjgoature asc Hi Marcy and her colleagues, I'm writing concerning the government's April 2, 2014 Response in the FISC to the Court's March 21, 2014 Opinion and Order. We do believe that the government's response to the FISC is insufficient and that additional information should be provided to the FISC as part of the government's duty of candor to the court. I've tried to include Stuart Delery and John Carlin in the addresses above but I'm not sure if I have their correct email addresses. I would appreciate it if you would forward this along to them, since I understand that they are the counsel handling the presentation to the FISC. First, we were concerned to see that, in discuc;sing the government's preservation responsibilities under the Jewel preservation order, the government did not mention that the preservation obligation in the Order includes preservation of more than just the telephone records, including Internet content and metadata collected from access to the fiberoptic cables at AT&T facilities across the country, as alleged in the Complaint. The filing only mentions telephony metadata. As you know, the Jewel Complaint (like Hepting before it) has always alleged that both of these types of surveillance were occurring. As a result, we arc concerned that the FISC has not been put on notice that the scope of the dispute about the preservation order in Jewel (or at least the scope of plaintiffs' view of the preservation order) reaches beyond telephone records into the Internet content and metadata gathered from the fiberoptic cables of AT&T. This is especially concerning because the FISC' may have required (or allowed) destruction of some of that evidence without the knowledge that it was doing so despite the existence a preservation order covering that information issued by the Northern District of California. We do understand that the government disagrees with us about the timeframe of collection at issue in the Jewel v. NSA Complaint, but given the FISC's response to this issue with regard to the telephone records, we think it is appropriate for the government to at least inform the FISC that this same dispute exists with regard to the Internet content and metadata collection from AT&T's fiberoptic cables. Of course, the proper court to determine the scope of the government's preservation duties is the Northern District of California court, not the FISC. The parties will be briefing this before Judge White soon. Yet nevertheless, the FISC does seem to want to be kept informed about the preservation issues and disputes and we believe the government should ensure that it remains fully informed. Second, we were dismayed to see that the government's response to the FISC on pages 3-5 repeated its own arguments (plus new ones) about the scope of the Jewel complaint 'Without referencing, much less presenting, plaintiffs' counter-arguments. As you know~ especially in our reply papers (doc. 196) in support of the TRO, plaintiffs presented significant argument and evidence that contradicts the government's statement to the FISC that plaintiffs only "recently-expressed views" (pages 2, 7) regarding the scope of the preservation orders. They also also undermines the few paragraphs of the Jewel Complaint and some other documents that the government has cherry-picked to support its argument. Once again, especially given . the ex parte, non-adversarial nature of the proceedings before the FISC, we believe the government has an affirmative duty to inform the FISC that there are two sides to this dispute, and that it is hotly being disputed, rather than to simply restate its own one-sided arguments. In short, we believe that the government has not sufficiently infqrmed the FISC about the situation here. It has p.ot informed the FISC that the scope of this evidence preservation dispute about what-appears to be FISC-approved surveillance includes the Internet content and metadata, not just telephone metadata. It also has not informed the FISC that the government's arguments about the scope of the Jewel complaint are.greatly disputed by the plaintiffs--much less provided the FISC with plaintiffs' side of that dispute. We urge you to inform the FISC of these matters so that.no future rulings by the FISC concerning either the telephone metadata or the Internet content and metadata are based on a misunderstanding of the facts. Please let me know by April 20 if you plan to inform the FISC about these matters. Thank you, Cindy *"**"'*****••*****.............."'****•*•**"**••··········· Cindy Cohn Legal Director Eiectro.1ic Frontier Founrfat1on 815 Eddy Street San Franciscc, CA 9(109 · (415) 436-9333 x108 -Cjndv@eff gm -wwwettcm Join EFF! https·/lsupporters efforg/donate
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