Caution: This is a very long reading assignment. To make it more nearly manageable, I have asked each of you to concentrate on one of eight cases and one of eleven pending bills, and to explain that case and that bill to the rest of us in class. You may each choose which case and which bill to explore; if we’re lucky, no more than two of you will select the same case and no more than one of you will select the same bill.

A. Background (Optional)

You probably know the answers to these questions, but if you've been living under a rock for the past five months, you may be hazy on the details. If you have been following the story, feel free to skip this section:

• Who is Edward Snowden? Read this and skim this.
• What is the NSA? Glance at this.
• What is FISA? Skim this and this.
• What is the FISC? Read this
• What is the USA Patriot Act? Skim this.

B. What has the NSA been doing?

Part 1:
Read all of the following news articles. Don’t bother with any accompanying video unless you want to.

• Glenn Greenwald, NSA Prism program taps in to user data of Apple, Google and others, The Guardian, June 6, 2013
• Barton Gellman and Laura Poitras, U.S., British intelligence mining data from nine U.S. Internet companies in broad secret program, Washington Post, June 7, 2013
• Glenn Greenwald and Ewan MacAskill, Boundless Informant: the NSA's secret tool to track global surveillance data, The Guardian, June 11, 2013
• Barton Gellman, NSA broke privacy rules thousands of times per year, audit finds. Washington Post, August 15, 2013
• James Ball, Edward Snowden NSA files: secret surveillance and our revelations so far, The Guardian, August 21, 2013
• James Ball, Julian Borger and Glenn Greenwald, Revealed: how US and UK spy agencies defeat internet privacy and security, The Guardian, September 5, 2013
• Ellen Nakashima, Obama administration had restrictions on NSA reversed in 2011, Washington Post, September 7, 2013
• Ellen Nakashima, Julie Tate and Carol Leonnig, Declassified court documents highlight NSA violations in data collection for surveillance, Washington Post, September 10, 2013
• Barton Gellman and Ashkan Soltani, NSA collects millions of e-mail address books globally, Washington Post, October 14, 2013
• Barton Gellman and Ashkan Soltani, NSA infiltrates links to Yahoo, Google data centers worldwide, Snowden documents say, Washington Post, October 30, 2013
• Scott Shane, No Morsel Too Minuscule for All-Consuming N.S.A., NY Times, November 3, 2013
• Barton Gellman, Ashkan Soltani and Andrea Peterson, The Switch: How we know the NSA had access to internal Google and Yahoo cloud data, Washington Post, November 4, 2013
• T.C. Sottek, The edge of the abyss: exposing the NSA's all-seeing machine, The Verge, November 12, 2013

Optional: The Electronic Frontier Foundation has assembled all of the reports and drawn a Timeline of NSA Domestic Spying. Consult it if you find that you have gotten confused.

Part 2:
Every week brings new revelations, and I have no way of predicting, as I write this assignment, what new news we will learn after I post it. Look at only one of these sources to find out what news media have reported in the past ten days:

• The Guardian newspaper’s NSA Files
• The Washington Post’s Edward Snowden and the National Security Agency leak
• Al Jazeera America’s NSA Leaks
• C|net News.com Cybersecurity
• New York Times Topics: National Security Agency
• U.S. News and World Report Topics: Organizations: NSA
• FoxNews.com NSA
• Washington Times Topic — National Security Agency
• CBS News In Depth: NSA Surveillance Exposed
• MSNBC Topics: NSA

C. Is That Legal?

Part 1:
The Obama Administration claims that all of the NSA Surveillance programs are authorized by section 215 of the Patriot Act (codified at 18 U.S.C. § 1861), section 702 of the Foreign Intelligence Surveillance Act (codified at 50 U.S.C. § 1881a), and Executive Order 12333. Take a look at all three of them.

• Read the administration’s defense of some of what the NSA has been doing.
• Skim three FISC opinions (the opinions are long; please read them carefully enough to get the gist of the Judges’ findings and conclusions; this will be important in order to understand the reading that follows):
  • March 2, 2009 Opinion by Judge Reggie Walton
  • October 3, 2011 Opinion by Judge John Bates
  • October 11, 2013 Opinion by Judge Clair Eagan

Part 2:
Select a single case from the list below. If the case has resulted in a court decision on the merits, or a final decision resolving the case on procedural grounds, read that decision and both parties’ briefs. If the case has not yet generated a decision, read the complaint (if available), the major briefs filed by both parties, and any amicus curiae briefs that intrigue you. What is the major legal theory or legal theories underlying the case? What is the government’s response? Which side do you think has the better argument, and why? Be prepared to tell the class about the case you choose.

• Shubert v. Obama (Amended Complaint filed May 11, 2008)


• Jewel v. NSA (Complaint filed September 18, 2008)


• Clapper v. Amnesty International (Petition for Certiorari filed February 17, 2012)


• ACLU v. Clapper (Complaint filed June 11, 2013)


• In re EPIC (Mandamus Petition filed July 8, 2013)


• First Unitarian Church v. NSA (Complaint filed July 16, 2013)


• In re Motion for a Declaratory Judgment of Google’s First Amendment Right to Publish Aggregate Information About FISA Orders, Case Number Misc-13-03 (scroll down to 13-03) (filed July 18, 2013)


• United States v. Under Seal 1, Under Seal 2 (Appeal docketed August 29, 2013)

D. Is it Wise?

Part 1:
Read these:

• Jack Goldsmith, We Need an Intrusive NSA, New Republic, Oct. 10, 2013
• Daniel Soar, How to Get Ahead at the NSA, London Review of Books, October 24, 2013
• Peggy Noonan, The Deep State, Wall Street Journal, October 28, 2013
• Conor Friedersdorf, The Surveillance State Puts U.S. Elections at Risk of Manipulation, The Atlantic, Nov. 8, 2013
• Nicholas Weaver, Our Government Has Weaponized the Internet. Here’s How They Did It, Wired, Nov. 13, 2013

Part 2:
Members of Congress have introduced a flurry of bills in response to the Snowden revelations. Chose only one bill from the list below. Read it, figure out what it would do and how it would work, and decide whether you think it is a good idea. Be prepared to explain it to the class and justify your assessment of its policy wisdom.

• S. 1168, Restore Our Privacy Act (Senator Sanders 6/13/13)
• H.R. 2399, Limiting Internet and Blanket Electronic Review of Telecommunications and Email Act (Representative Conyers, 6/17/13)
• H.R. 2440, FISA Court in the Sunshine Act (Representative Jackson Lee, 6/19/13)
• S. 1215, FISA Accountability and Privacy Protection Act (Senator Leahy, 6/24/13)
• H.R. 2684, Telephone Surveillance Accountability Act (Representative Lynch, 7/11/13 )
• S. 1467, FISA Court Reform Act of 2013 (Senator Blumenthal, 8/1/13)
• H.R. 3103, Intelligence Oversight and Accountability Act (Representative Thompson, 9/16/13)
• S. 1551, Intelligence Oversight and Surveillance Reform Act (Senator Wyden, 9/24/13)
• S. 1599, USA Freedom Act (Senator Leahy, 10/29/13)
• S. 1621, Surveillance Transparency Act (Senator Franken, 10/30/13)
• S. 1631, FISA Improvements Act of 2013 (Senator Feinstein, 10/31/2013)

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