Can I just say at the outset that, in general outlines & as well in several particulars, I agree with a lot of what you’ve posted here, and moreover it’s very good stuff – indeed, given the existence of those specialized law & security blogs, I haven’t seen any of those I normally check on go through the problems with anything like the intensity in your approach

[bearing in mind that Glenn Greenwald, who certainly gets all this & indeed specifically recognizes your efforts is writing to a different audience - or at least writing with different kind of demand on his audience - & moreover professor Marty Lederman has not been posting for weeks, unsquelched rumor having it that he’s being vetted for a return to the OLC, presumably with more authority than he had before - tho assuming the new chief is the woman nominated, I’m sure that’s gravy].

I have a few thoughts – well, quite a few; but I’ve responded with some on previous threads, and no doubt there’ll be more opportunities – so I’ll keep these as much as possible to your analysis here.

[1] I’m going to assume that the counsel acting for the Petitioner were not, despite the rude treatment received from the court, objectively naive & stupid, and did not attempt anything like the general criticism of professor Jon Turley [to the effect that even the FISA 1978 was/is unconstitutional - which is far from stupid of course, but goes into a larger set of issues than I think you intended to deal with here].

Supporting that take is the court’s opinion shows the Petitioner got stuck with having to attack the PAA, as it really wanted to challenge – well, let’s just say your own response @ #8 is a very strong candidate for what it wanted to challenge.

[2] Staying with that last point, whether your surmise is bang on or close enough [it’s at least the latter], the Petitioner would have chosen not to challenge the FAA by virtue of whatever it was the NSA was saying the order meant not appearing to fit what those in Congress [encompassing both chambers] had intended when they voted for it.

How could they tell? Well, not just from those on the Dem side who knew what they were talking about [which eliminates Jello], but also from at least some on both sides [Rs & Blue Dogs] who DIDN’T know what they were talking about, and by combination of the intention to adhere to talking points and the inability to avoid talking out their hats made claims which strictly couldn’t stand up to what the DoJ lawyers were saying to the court the FAA stood for.

[3] Nonetheless, assuming [as you argue in a later thread, and I agree with you] the Petitioner is an email provider, and Google, or at least one not previously involved with the government’s ongoing illegal partnership with the telcos, there is suggested some [quite understandable, and in my view quite foregive-able] naivete to the submissions on behalf of the Petitioner, both implied in & to some extent explaining the court’s rude, sarcastic, dismissive language in reference to Petitioner’s counsel.

And it strikes me that at least part of that, and maybe most of the cause the Court’s tone, might have to do with the Petitioner’s counsel challenging some ‘accepted’ thinking – which, as we know from Galileo & Darwin & el Barradei, tends to enflame the passions of established mindsets – - & interests [More on the latter below].

Experienced, even new court attorneys are only too familiar with this phenomenon: sometimes the court doesn’t get it, & that’s bad enough – but sometimes the court REFUSES TO ADDRESS IT, which goes over on impassioned, no matter how well-prepared, as a bucket of ice-water.

[4] The point could have [may have] been made that, while on its surface the PAA isn’t unconstitutional, putting the rationale for the order behind affidavit is one things, but using that vehicle, superficially designed to protect sources etc as a vehicle to hide as well the mechanics of interception & minimization is to pervert the process, and turn the exercise further away from the already-compromised checks envisioned in the FISA 1978 and the PAA 2007, but particularly the latter given the former never even envisioned the possibility of either the position the Petitioner was being placed in or the advocacy being engaged in by it.

A few threads back I did a riff on a dump truck that serves to express this type of concern in somewhat oversimplied fashion – - maybe oversimplied.

[5] This isn’t even the SECOND time I’ve expressed this, but there seems to be a glossing over of the word “unreasonable” in the 4th Amendment – & I don’t mean by you; but it’s important to reflect on the word’s meaning in the jurisprudence. I keep getting the sense, just as I have from time to time when at the defense table this comes up [I never have argued inconsistently on this.], that the word qualifies, or ONLY qualifies, the means by which the government proposes to undertake the search & seizure, and some balancing act between the “interest” of the “people” versus the interests of the affected individuals.

The word also, critically, indicates ‘rationality’, and as well, even more critically for these purposes, emphasizes [by initiating] the concept of “probable cause”. Put another way: the physical separation of the two in the phrasing of the Amendment does not operate to segregate them such that they operate or are to be interpreted independently: cause, to qualify as probable, must be reasonable in the sense of rationally flowing from a set of facts put before the court that are purported to be true.

Somehow – & it’s not just the passage of the FISA in 1978 that has brought this about, but it’s a big influence – the courts in general, and PARTICULARLY the FISA courts [as implied in this latest opinion, and the rather astounding batting record the government has put up in appearances before it, ex parte aside], have been seduced, or seduced themselves, or some of both, into this idea that ‘reasonableness’ is satisfied entirely by a logical connection between the interest sought to be advanced: intercepting the calls of X for national security reasons on the one hand – & the means by which it is proposed to advance them: by intercepting the calls of X, on the other.

Not a lot of space for discussion there.

[6] For a while I thought it might be possible the court’s snarkiness was owing to it’s being ticked off by the government’s having run around the court for years – - but on reflection I realize that’s very unlikely: the membership of the court is full of folks with pre-existing contacts in the natsec intell community, and over their years on the court, those would have been cemented; and those not already in that deep before would also develop sources – so the idea of this stuff coming to the FISC as a shock, or even much of a surprise [as compared to broader membership the federal District Court], is really a stretch.

The first thing I did when I first got clearance decades ago was arrange for guided tours of as many of the facilities and toys involved in government wiretapping as I was able to find out about, & in the throes of that I was told in passing the name of more than one judge who’d expressed a comparable interest & had his or her own tour – not all, but enough.

From then on, it was no surprise to receive visits and calls for coffee and advice on particular problems & novel ideas & new toys. The judges didn’t get those [though it seemed to me some had to have - albeit in less specific terms or less, or less-obviously focussed ways], but, in the course of a number ’special motions’, brighter, more interested judges routinely showed a high technical understanding of what was in the materials, and sometimes beyond that.

The same reflection cements my view that the court here was expressing the sort of pain many feel on being jarred from complacency.

Closer to home, America’s two major telecom companies, AT&T and Verizon, have outsourced the bugging of their entire networks – carrying billions of American communications every day – to two mysterious companies with very troubling foreign connections. In AT&T’s secret room in San Francisco, a mirror image of all data entering the building is filtered through surveillance equipment supplied and maintained by Narus. Verizon, which controls most of the rest of the country’s domestic and international communication networks, chose a different company. According to knowledgable sources, that company is Verint.

BTW, your “everything” link takes me to guitar lessons. (?)

Google, unlike AOL, Yahoo! and Microsoft, chose to fight the government order in court.
I don’t remember the final outcome, but I assume even if the government won, it was not enough.

Maybe the 2007 laws are the new work around?

Maybe they too believe this is governmental overreach in the form of unconstitutional search and seizure.
Any news of arrests of CEOs of email providers? Here’s hoping.

Remember, the particularity is not tied at all to the PAA order, so the govt can come and ask for everything based on something as flimsy as “Ramzi bin al-Shibh’s cousin has a Gmail address.” Well, since Ramzi bin al-Shibh’s cousin is hidden away in (say) Pakistan, the govt can fairly say they reasonably believe the data was located outside the US. It’s possible said cousin has snuck into the US, but they don’t think he has.

So there you’ve got all of Gmail’s emails. And only once you get that do you do the data mining (which I’m 99% sure is what the redacted procedures are about) to get teh actual emails that you’re going to read.

With each step separate, they’ve got enormous leeway to do things with the email servers once they get them. And it’s pretty clear from this structure that the email provider has no fucking clue–they’re not allowed to know–how the govt is using the data.