36. Id. (describing the “Business Records Order” as a victory for the NSA and the metadata program, as well as explaining that “the FISA court issued a secret opinion ratifying the N.S.A.’s” argument that it should be able to “force phone companies to regularly hand over their entire databases”); Perlroth and Markoff, “N.S.A. May Have Hit Internet Companies at a Weak Spot,” supra note 33.
37. Lizza, “State of Deception,” supra note 30, at 50 (“Internet metadata can include e-mail and I.P. addresses, along with location information, Web sites visited, and many other electronic traces left when a person goes online.”); id. at 60 (explaining that the NSA notified the Intelligence Committee “it was indefinitely suspending the program” while providing “little explanation” for its change of heart); “John Inglis Explains Why (US-Based Collection of) Internet Metadata Doesn’t Work,” emptywheel, Jan. 10, 2014, www.emptywheel.net/2014/01/10/john-inglis-explains-why-us-based-collection-of-internet-metadata-doesnt-work/ (“NSA couldn’t meet the Court’s requirements that it not collect content that is also routing information, because the telecoms, from which NSA collected this data, only had access to the data the NSA wanted at a content level.”).
38. See, e.g. James Ball, “NSA Stores Metadata of Millions of Web Users for up to a Year, Secret Files Show,” The Guardian, Sept. 30, 2013, www.theguardian.com/world/2013/sep/30/nsa-americans-metadata-year-documents.
39. Glenn Greenwald et al., “Microsoft Handed the NSA Access to Encrypted Messages,” The Guardian, July 11, 2013, www.theguardian.com/world/2013/jul/11/microsoft-nsa-collaboration-user-data.
40. See, e.g., James Ball and Spencer Ackerman, “NSA Loophole Allows Warrantless Search for US Citizens’ Emails and Phone Calls,” The Guardian, August 9, 2013, www.theguardian.com/world/2013/aug/09/nsa-loophole-warrantless-searches-email-calls (quoting government officials stating U.S. persons are not targeted under 702 and that the program is focused on foreign targets); Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 (2014), 7, 82–83 (describing this “incidental” collection of U.S. persons’ information as “clearly contemplated by Congress at the time of drafting” and is neither “accidental, or … inadvertent”) (hereinafter PCLOB, 702 Report); [Redacted], 2011 WL 10945618, at *1 (FISA Ct. Oct. 3, 2011), https://lawfare.s3-us-west-2.amazonaws.com/staging/s3fs-public/uploads/2013/08/162016974-FISA-court-opinion-with-exemptions.pdf (approving minimization procedures that are “limited to ‘the targeting of non-United States persons reasonably believed to be located outside the United States’” [quoting Certification (redacted)]); Brett Logiurato, “John Oliver’s First Night Hosting ‘The Daily Show’ Was Brilliant,” Bus. Insider, Jun. 11, 2013, 8:53 a.m., www.businessinsider.com/john-oliver-daily-show-debut-june-10-jon-stewart-nsa-scandal-2013-6. Several sources indicate that the NSA applies this standard in a 51 percent foreignness test. See, e.g., Joshua A. T. Fairfield and Erik Luna, “Digital Innocence,” Cornell L. Rev. 99 (2014): 1024 (“Reportedly, NSA analysts use search terms designed to create at least 51% confidence in a target’s ‘foreignness’—hardly a rigorous standard and one virtually guaranteed to collect domestic communications.” (footnote omitted) (quoting Barton Gellman and Laura Poitras, “U.S., British Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program,” supra note 3)). But see Kenneth Anderson, “Readings: NSA Report on the 702 Program,” Lawfare, April 19, 2014, www.lawfareblog.com/readings-nsa-report-702-program (“This is not a 51% to 49% ‘foreignness’ test. Rather the NSA analyst will check multiple sources and make a decision based on the totality of the information available.”).
41. Laura K. Donohue, “Section 702 and the Collection of International Telephone and Internet Data,” Harv. J.L. & Pub. Pol’y 38 (2015): 144–46 (describing E.O. 12333’s approval procedures); Nate Raymond and Aruna Viswanatha, “New Documents Show Legal Basis for NSA Surveillance Programs,” Reuters, Sept. 29, 2014, www.reuters.com/article/2014/09/29/us-nsa-surveillance-idUSKCN0HO1YQ20140929 (explaining that E.O. 12333 “was intended to give the government broad authority over surveillance of international targets”); John Napier Tye, “Meet Executive Order 12333: The Reagan Rule That Lets the NSA Spy on Americans,” Wash. Post, July 18, 2014, www.washingtonpost.com/opinions/meet-executive-order-12333-the-reagan-rule-that-lets-the-nsa-spy-on-americans/2014/07/18/93d2ac22-0b93-11e4-b8e5-d0de80767fc2_story.html (“No warrant or court approval is required, and such collection never need be reported to Congress.”); Charlie Savage, “Reagan-Era Order on Surveillance Violates Rights, Says Departing Aide,” N.Y. Times, Aug. 13, 2014, www.nytimes.com/2014/08/14/us/politics/reagan-era-order-on-surveillance-violates-rights-says-departing-aide.html (“Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.”); see also id. (“Aware of leak prosecutions … [Tye] has spent $13,000 on lawyers to make sure he stays within the lines.”).
42. PCLOB, 702 Report, supra note 40, at 137–38, 159 (describing the FBI’s use of 702 data for criminal prosecutions and recommending placing limits on what FBI can do with information intercepted under 702); Liberty and Security in a Changing World: Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies (2013), 145–50, (providing recommendations for improving privacy of intercepted communications of U.S. persons); letter from Hon. John D. Bates, Dir., Admin. Office of the U.S. Courts, to Sen. Dianne Feinstein, Chairman, U.S. Senate Select Comm. on Intelligence, Jan. 13, 2014, at 2, www.feinstein.senate.gov/public/index.cfm/files/serve/?File_id=3bcc8fbc-d13c-4f95-8aa9-09887d6e90ed.
43. See, e.g., James Ball, “NSA Stores Metadata of Millions of Web Users for up to a Year, Secret Files Show,” The Guardian, Sept. 30, 2013, www.theguardian.com/world/2013/sep/30/nsa-americans-metadata-year-documents; James Risen, “N.S.A. Gathers Data on Social Connections of U.S. Citizens,” N.Y. Times, Sept. 28, 2013, www.nytimes.com/2013/09/29/us/nsa-examines-social-networks-of-us-citizens.html (discussing the “social network diagrams” created using “bank codes, insurance information, Facebook profiles, passenger manifests, voter registration rolls, and GPS location information, as well as property records and unspecified tax data” and citing NSA officials).
44. Barton Gellman and Ashkan Soltani, “NSA Collects Millions of E-mail Address Books Globally,” Wash. Post, Oct. 14, 2013, www.washingtonpost.com/world/national-security/nsa-collects-millions-of-e-mail-address-books-globally/2013/10/14/8e58b5be-34f9-11e3-80c6-7e6dd8d22d8f_story.html.
45. See Unclassified Report on the President’s Surveillance Program (2009), 19–30, https://fas.org/irp/eprint/psp.pdf; Lizza, “State of Deception,” supra note 30, at 53.
46. Unclassified Report on the President’s Surveillance Program, supra note 45, at 10, 13; Lizza, “State of Deception,” supra note 30, at 53; Office of the Inspector General, National Security Agency, ST-09-0002 Working Draft (2009), 25, http://nsarchive.gwu.edu/NSAEBB/NSAEBB436/docs/EBB-023.pdf.
47. See Jack Goldsmith, The Terror Presidency (2007), 85–90 (describing the views of Cheney and his Counsel, David Addington, on the need to restore the power of the presidency); Preserving the Rule of Law in the Fight Against Terrorism: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 60 (2007) (statement of Jack Landman Goldsmith) (“One of the reasons that the administration did not consult more with Congress is that it believed doing so on any particular issue would imply a lack of inherent or exclusive Executive power, and might result in restrictions imposed by Congress that tied the President’s hands in ways that prevented him from thwarting the terrorists.”). The president is required to keep Congress informed of intelligence activities, 50 U.S.C. § 3091(a)(1) (2012). If the president determines that information involved in a required brief to Congress is extraordinarily sensitive, he may limit reporting to only “the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate,” id. § 3093(c)(2), a group informally called the “Gang of Eight”; Kathleen Clark, “The Architecture of Accountability: A Case Study of the Warrantless Surveillance Program” B.Y.U. L. Rev. 2010: 395n173.
48. Unclassified Report on the President’s Surveillance Program, supra note 45, at 12, 19–20.
49. Id. at 11.
50. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582–84, 587, 590–91 (1952); id. at 635–38, 645–46 (Jackson, J. concurring) (“When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.”).