Nov 102009

Kim Zetter of Threat Level reports on how the government’s motion to vacate prior rulings in Horn v. Huddle may seriously impact other pending cases such as al-Haramain v. Obama.

In Horn v. Huddle, the government settled a 15-year old lawsuit filed by a former DEA agent who claimed he was subjected to illegal eavesdropping. But as part of the settlement, Horn agreed not to oppose the government’s motion to vacate previous rulings in the case by the D.C. courts.

“The opinions will be a valuable resource for litigants and courts as these issues arise in other cases,” the lawyers wrote in their brief (.pdf) Friday.


The Justice Department is “willing to pay absolute top dollar [in the D.C. case] to get out from some very damaging opinions” says Jon Eisenberg, attorney for the plaintiffs in the Al-Haramain case. “They are desperate to make the decisions go away and to deprive me of the ability to cite those decisions in the future.”

Although district court opinions aren’t binding elsewhere, they are regularly published and cited in other cases.

The D.C. rulings could help convince the California court to let plaintiffs view and use the classified document in their case, Eisenberg says. He notes that the D.C. rulings could be particularly persuasive to the San Francisco judge in the Al-Haramain case because they come from U.S. District Judge Royce Lamberth, head of the Foreign Intelligence Surveillance Court until 2002, who is overseeing the coffee table case. The intelligence court is responsible for approving government requests for wiretaps and other types of surveillance in the U.S. in cases involving foreign spying and terrorism.

“When Judge Lamberth speaks on a matter of national security, people listen,” Eisenberg told Threat Level.

Read more on Threat Level.

Sep 242009

Bob Egelko reports:

After years of wrangling over legal procedures, the lawyer for a defunct Islamic charity laid out his case Wednesday that former President George W. Bush’s secret wiretapping program was illegal – an argument that an Obama administration attorney refused to discuss.

“May the president of the United States break the law in the name of national security? … We’re asking this court to say, ‘no,’ ” Jon Eisenberg, lawyer for the Al-Haramain Islamic Foundation, told a federal judge in San Francisco.


Chief U.S. District Judge Vaughn Walker, who has rebuffed Bush and Obama administration requests to dismiss the suit, did not reveal his views on the legality of the program. But he told a government lawyer that Al-Haramain had presented strong evidence that it had been wiretapped and had the right to sue.

Read more on SFGate.  Paul Elias of Associated Press provides additional background on the case.

Court-related documents and files can be found on EFF’s site.

Photo credit:  Lea Suzuki/Chronicle

Aug 222009

The Obama administration, trying to derail a lawsuit over former President George W. Bush’s authority to wiretap Americans without court permission, has refused to take a position on the program’s legality and says a federal judge can’t decide that question because the crucial facts are national secrets.

A ruling on whether Bush exceeded his constitutional powers would be “an improper advisory opinion” because there’s no proof – without delving into confidential, off-limits evidence – that the government wiretapped the plaintiff in the suit, the Justice Department said late Thursday.

“Information protected by the state secrets privilege is necessary to litigate the matter,” government lawyers told Chief U.S. District Judge Vaughn Walker in San Francisco. Walker has scheduled a hearing Sept. 23 to decide whether to dismiss the suit or proceed to a ruling on whether the surveillance program was legal.

Read more on San Francisco Chronicle

Related: Court filing [pdf], courtesy of Threat Level.

Jul 182009

They sometimes call national security the third rail of politics. Touch it and, politically, you’re dead.

The cliché doesn’t seem far off the mark after reading Mark Klein’s new book, “Wiring up the Big Brother Machine … and Fighting It.” It’s an account of his experiences as the whistleblower who exposed a secret room at a Folsom Street facility in San Francisco that was apparently used to monitor the Internet communications of ordinary Americans.

Read the Robert McMillan of IDG News Services interview with Mark Klein. The interview includes some interesting discussion of the media’s response when Klein tried to get the story out, and I can see that I need to add Klein’s book to my summer reading list.

Jul 102009

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
President Barack Obama, December 20, 2007

“We owe the American people a reckoning.”
Attorney General Eric Holder, June 13, 2008

And thus began the latest round in Al-Haramain v. Obama, a case seeking a ruling that the Terrorist Surveillance Program implemented during Bush’s administration was illegal. Al-Haramain, a now-defunct Saudi charity, claims that they and their lawyers were wiretapped in phone calls to Saudi Arabia without a warrant after the charity had been designated an organization that funded terrorist operations.

What makes this case somewhat unique is that the plaintiffs reportedly had hard evidence in their hands, accidentally provided by the government. Once the government realized its error, it reclaimed the documents and got the court to agree that no reference could be made to the documents and that they could not be used in any shape or manner. The plaintiffs, then, had to find another way to demonstrate that they were “aggrieved persons” under FISA and would, hence, having standing to bring suit. Relying on publicly available materials, including interviews and statements given by government officials, the plaintiffs provided what they hope will establish that they have standing to bring suit. The government has tried repeatedly to get the case dismissed on grounds that to defend against the suit, they would have to reveal state secrets.

The court will hear oral arguments on September 1.

Documents can be found on EFF’s site.

Jun 202009

The Canadian government has been trying to modernize its surveillance and wiretapping laws for years now, to take into account the growth of cellphone and internet communications. Canada’s current telephone wiretap laws are more than 30 years old. Public Safety Minister Peter Van Loan said in June 2009 that the current legal framework was designed “in the era of the rotary telephone.”

This article
by CBCNews provides a brief history of relevant Canadian law and mentions specific laws in other countries.

The big brouhaha, of course, is over two specific bills introduced this week in Canada, C-46 and C-47:

C-46: Investigative Powers for the 21st Century Act. Full-text here.


The enactment amends the Criminal Code to add new investigative powers in relation to computer crime and the use of new technologies in the commission of crimes. It provides, among other things, for
(a) the power to make preservation demands and orders to compel the preservation of electronic evidence;
(b) new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;
(c) a warrant to obtain transmission data that will extend to all means of telecommunication the investigative powers that are currently restricted to data associated with telephones; and
(d) warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake.

The enactment amends offences in the Criminal Code relating to hate propaganda and its communication over the Internet, false information, indecent communications, harassing communications, devices used to obtain telecommunication services without payment and devices used to obtain the unauthorized use of computer systems or to commit mischief. It also creates an offence of agreeing or arranging with another person by a means of telecommunication to commit a sexual offence against a child.

The enactment amends the Competition Act to make applicable, for the purpose of enforcing certain provisions of that Act, the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents relating to the transmission of communications or financial data. It also modernizes the provisions of the Act relating to electronic evidence and provides for more effective enforcement in a technologically advanced environment.

The enactment also amends the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act.

C-47: Technical Assistance for Law Enforcement in the 21st Century Act. Full text here.


This enactment requires telecommunications service providers to put in place and maintain certain capabilities that facilitate the lawful interception of information transmitted by telecommunications and to provide basic information about their subscribers to the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, the Commissioner of Competition and any police service constituted under the laws of a province.

Jun 172009

The National Security Agency is facing renewed scrutiny over the extent of its domestic surveillance program, with critics in Congress saying its recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged, current and former officials said.

The agency’s monitoring of domestic e-mail messages, in particular, has posed longstanding legal and logistical difficulties, the officials said.


Representative Rush Holt, Democrat of New Jersey and chairman of the House Select Intelligence Oversight Panel, has been investigating the incidents and said he had become increasingly troubled by the agency’s handling of domestic communications.

In an interview, Mr. Holt disputed assertions by Justice Department and national security officials that the overcollection was inadvertent.

“Some actions are so flagrant that they can’t be accidental,” Mr. Holt said.

Read more in The New York Times.

Update 1: The Associated Press has some responses to the story from senators who question its accuracy.