Thread by @GeorgeCroner

I confess that I am a devotee of @emptywheel and follow her on Twitter. I also acknowledge that she and I come at foreign intelligence electronic surveillance from different perspectives. I began writing on FISA much later than her and my first foray was openly advocating the /1

reauthorization of Section 702 in 2017. However, I don't disagree with her on the importance of the notice requirement, in general, or on the Moalin court's reference to E.O. 12333 surveillance as included within that notice requirement.

That said, I don't see this language /2

working an earth-shattering change in government notice practice even if endorsed broadly by the courts. Given that any targeting of US Persons, even those abroad, is now covered by FISA (§ 704), any US Person collection will be "incidental" or would otherwise require a FISA /3

order. This is the same "incidental" collection obtained through lawfully targeted 702 acquisitions for which notice is handled by the statutory provisions found in FISA § 1806, and the occasions where DoJ has provided notice of Section 702 collection in connection with /4

a criminal proceeding are famously few. The assumption is that DoJ is fudging the notice requirement through generously interpreted "parallel construction" and other avoidance techniques. I don't pretend to be aware of all the data relevant to this "notice" debate /5

but I feel reasonably confident in suggesting that nothing short of concerted judicial enforcement accompanied by frequent use of sanctions will change this approach. I also feel reasonably confident in saying it is unlikely that the federal courts will never adopt such a /6

uniform approach and, if they did, the executive branch will respond with "interpretive" changes, more parallel construction of evidence, and, if necessary, the increased use of the state secrets privilege to protect sources and methods. Just my take on this particular issue. /7