Critical Releases in Homeland Security: April 16, 2014

"Beginning in the summer of 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been widely published. The reports have focused on two main NSA collection activities approved by the Foreign Intelligence Surveillance Court (FISC) established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As public awareness of these programs grew, questions about the constitutionality of these programs were increasingly raised by Members of Congress and others. This report provides a brief overview of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each. A handful of federal courts have addressed the Fourth Amendment issues raised by the NSA telephony metadata program. FISC opinions declassified in the wake of the public's awareness of the NSA telephony metadata program have found that the program does not violate the Fourth Amendment. Similarly, in 'ACLU v. Clapper', the federal District Court for the Southern District of New York held that a constitutional challenge to the telephony metadata program was not likely to be successful on the merits. However, in 'Klayman v. Obama', the federal District Court for the District of the District of Columbia disagreed and held that there is a significant likelihood that a challenge to the constitutionality of the NSA telephony metadata program would be successful."

"As outlined in a May 21, 2013, memorandum from the participating Inspectors General, the objectives of this review were to determine: [1] The extent of the information available to the U.S. government concerning the relevant individuals and events preceding the Boston Marathon bombings; [2] Whether the sharing of this information was complete, accurate, and in compliance with U.S. counterterrorism and information sharing, policies, regulations, and U.S. laws; and [3] Whether there are weaknesses in protocols and procedures that impact the ability to detect potential threats to national security. In furtherance of these objectives, the Offices of Inspector General (OIGs) sought to develop a chronology of the events leading up to the bombings based on information that was known to the U.S. government prior to April 15, 2013. We also sought to identify what additional information existed and may have been available to the U.S. government before the bombings. In considering whether information that existed prior to the bombings was 'available' to the U.S. government, the OIGs took into account the limited facts known to U.S. government agencies prior to the bombings and the extent of the government's authority under prevailing legal standards to access that information. As a result, the scope of this review included not only information that was in the possession of the U.S. government prior to the bombings, but also information that existed during that time and that the federal government reasonably could have been expected to have known before the bombings."