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The state secrets privilege in challenges to government surveillance programs

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  1. Howard Gilbert says:

    It is obviously no secret to anyone who has paid a phone bill that the phone company generates call records. It is easy to understand that these records could be transmitted to the NSA. From yesterday’s government statement:
    “The metadata acquired and stored under this program may be queried only when there is a reasonable suspicion, based on specific and articulated facts, that an identifier is associated with specific foreign terrorist organizations. In 2012. less than 300 unique identifiers met this standard and were queried. … The program is subject to strict controls and oversight: the metadata is segregated and queries against the database are documented and audited. Only a small number of specifically-trained officials may access the data; the Foreign Intelligence Surveillance Court reviews the program every 90 days; and the data must be destroyed within 5 years.”

    So there are two pieces to the program. The part that has been disclosed and about which there is no plausible state secret is that some business records of some phone companies are transferred from the phone companies to a segregated government system where they are not immediately available for analysis. Then the secret part is which phone companies are involved and the 300 identifiers, what they are, how they were gathered, and how the queries are executed.

    The problem from a litigation point of view is that the records in question appear to be no less secure and confidential in the segregated government system than they were in the phone company, yet this transfer is the only thing that has been disclosed. It is not plausibly a state secret, but it is also not plausibly illegal, especially since it was conducted pursuant to a order of a Federal District court judge. The state secret doctrine protects the queries, but unless you can prove in advance you were one of the 300 you don’t get even that far.

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