Memorandum of Law in Support of Plaintiffs’ Motion for a Preliminary Injunction

ACLU v. Clapper 1:13-cv-03994-WHP (S.D.N.Y.)

US District Court Southern District of New York: Amnesty USA v. Clapper

Memo in Support of Motion for Summary Judgement 

Memorandum In Support Of Motion For Summary Judgment

Amnesty, Int'l v. Clapper 1:08-cv-06259-JGK (S.D.N.Y.)

Created by Joe Ferguson, Loyola University Chicago School of Law

We write to urge you to ensure that any new cybersecurity information sharing bill considered in the Senate in 2013 at least maintains the privacy protections from Title VII, the information sharing title of S. 3414, the Cybersecurity Act of 2012. We agree that the protections in Title VII of S. 3414 last year should be considered the privacy floor, and not the ceiling for any cybersecurity legislation. To that end, we would strongly oppose any effort to bring to the Senate floor the information sharing provisions of last year’s SECURE IT bill, or otherwise weaken privacy safeguards.

We the undersigned support ending the bulk collection of all types of data under all legal authorities, while preserving the requirement of prior court approval for surveillance under the Foreign Intelligence Surveillance Act. We recognize the substantial step in this direction the House Judiciary Committee and House Permanent Select Committee on Intelligence took in unanimously passing the USA FREEDOM Act (H.R. 3361). The bill includes several components critical to meaningful reform... We respectfully urge you to oppose efforts to weaken these or other provisions in this historic bill.

To Director of National Intelligence Coats: The undersigned organizations write to express our dismay at your decision to abandon the effort to estimate the number of Americans whose communications are incidentally collected pursuant to Section 702 of the Foreign Intelligence Surveillance Act. We ask that you reconsider.

To Chair Goodlatte and Ranking Member Conyers: ... If Director Coats remains steadfast in his efforts to evade oversight by the public and this Committee, we urge you to use all powers at your disposal to obtain this number.

... As you consider the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), we strongly urge reforms to ensure this surveillance tool is not improperly co-opted for purely domestic law enforcement purposes, and oppose any reauthorization that does not include substantial reforms. This is critical given America’s history of selective targeting, persecution, and abuse directed at persons of color, religious minorities, and dissidents when the government has obtained surveillance powers absent adequate checks and oversight.

While full details regarding the bill have not yet been made public, the undersigned groups write to express our concern that the reform as described by the New York Times and The Hill would leave the so-called “backdoor search loophole” wide open. We urge you to ensure that any reform proposal include a full fix requiring all agencies to obtain a warrant based on probable cause to search Section 702 data for information about U.S. citizens and residents in all investigations.

The government uses the backdoor search loophole to conduct warrantless searches for the information of individuals who are not targets of Section 702, including U.S. citizens and residents. Unfortunately, the Section 702 reform bill introduced last week, the USA Liberty Act [H.R. 3989], fails to address many of the concerns raised in our letter. We cannot support the USA Liberty Act at this stage without further changes to strengthen the warrant requirement for searching databases containing Section 702 information.

On behalf of a broad coalition of civil liberties organizations, we write in support of the USA RIGHTS Act [S. 1997], legislation that contains meaningful reforms to Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), which is set to expire at year’s end. These reforms are imperative given our government’s historical abuse of surveillance authorities, contemporary noncompliance with this authority, and the danger posed by potential future abuses.

The undersigned privacy, civil rights, civil liberties, and government oversight organizations write in strong opposition to the FISA Amendments Reauthorization Act of 2017 (S. 2010). This legislation is masquerading as a moderate “reform” bill. In fact, however, it would reauthorize Section 702 of the Foreign Intelligence Surveillance Act for eight years without making any meaningful reforms to better protect privacy. Indeed, in some respects, the bill represents an expansion of the government’s surveillance authorities under Section 702.

The undersigned groups write to express our strong opposition to H.R. 4478, as amended by the manager’s amendment introduced by Representative Nunes, which is scheduled to be considered at 4 p.m. today. We urge you to vote “no” on this bill. Some have suggested this bill is reform—but it is just the opposite. This bill fails to meaningfully address the litany of abuses that have occurred under Section 702, risks codifying current illegal practices, and could be read as expanding surveillance under Section 702. As such, we believe it is markedly worse than the current Section 702 statute.

The undersigned civil society groups write to express our concerns about recent reports of an order issued under the Foreign Intelligence Surveillance Act (FISA) that compelled Yahoo! to scan the emails of all of its users, in real time, for a “signature” associated with a foreign power. We believe such a massive scan of the emails of millions of people, particularly if it involves the scanning of email content, could violate FISA, the Fourth Amendment, and international human rights law, and has grave implications for privacy. 

NACDL undersigns a letter on November 30, 2012 urging Senators to vote “no” on S. 3276, the FAA Sunsets Extension Act of 2012, which would extend the FISA Amendments Act (FAA) until June 1, 2017.