FAA Section 702 developments

Back in February, I posted about the first brief on the merits challenging the constitutionality of Section 702 of the FISA Amendments Act of 2008, in the criminal case against Jamshid Muhtorov in the U.S. District Court for the District of Colorado.  Since then, there have been many developments on the 702 front.

In the Muhtorov case itself, the government has filed its responsive brief, defending the constitutionality of the law.

There has also been extensive briefing on the issue in another criminal case, United States v. Mohamud, No. 10-475, in the District of Oregon.  Here are Mohamud’s opening brief; the government’s response; and Mohamud’s reply.

Meanwhile, on March 19 the Privacy and Civil Liberties Oversight Board held a very informative and interesting hearing on Section 702.  The transcript of the hearing, which I highly recommend, is here.  Links to the video and audio recordings, and to the written submissions of the witnesses, are collected here.

The Director of NSA’s Civil Liberties and Privacy Office issued this report last month on the Agency’s compliance with Section 702.

And finally, my colleague Laura Donohue has just uploaded what I believe is the first comprehensive academic treatment of Section 702.  Laura addresses the history of the statute, its constitutionality, and questions about whether the government’s and FISC’s application of Section 702 is consistent with the statute. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).