Im_not_JB

Absolutely! If you read the published list he linked, you'll see, "...you should determine whether your company maintains the following types of information..." Under an NSL, the gov't can't demand prospective collection of data, nor are there any mandatory data retention timelines.

Essentially. Courts have various tools they can use to get what they deem necessary (subject to some reasonableness constraints). This can include, fines, jail time, or other demands. A recent high profile example of this was when a Federal Judge in Kentucky jailed Kim Davis for not signing SSM licenses.

The content/non-content distinction is more relevant for what I'm getting at. Your emails are content, and they are still your private correspondence subject to the warrant requirement. Smith v. Maryland and United States v. Miller were concerning non-content business records. These things are subject to administrative subpoenas (like NSLs) without probable cause. They are still specific and targeted, though. And like collection of information under any authorities, there may be incidental collection on others. (The typical example, involving content, is that when the FBI gets a warrant and a court order for a wiretap on Tony Soprano, sometimes Carmela uses the phone - she's innocent and there is no suspicion on her; her information is incidentally collected and subject to minimization procedures.)

Do you think the content/non-content divide is tenable? If it is tenable, do you think we should overturn these cases on non-content as a matter of law or policy? If so, do you have any other line in mind, or would you just apply the warrant requirement to everything that used to be subject to a mere subpoena?

Given that Smith v. Maryland and United States v. Miller are Fourth Amendment cases, it's hard to say that we should "go back to" the Fourth Amendment. Do you just mean that we should overturn these cases and use a warrant standard for all metadata/non-content/business records? Or do you have some other distinction in mind, maybe that preserves access to banking information (like Miller; noting that this type of collection via laws like FATCA likely helped prevent Americans from being implicated in the Panama Papers), but protects other types of information?

How did you interpret the recent OIG report that indicated that Upstream also uses targeted selectors?

Section 702 of FISA and Executive Order 12333. Those kinds of dragnet, suspicionless searches runs afoul of both the Constitution and international law.

Section 702 and EO 12333 are regarding foreign intelligence. Do you think suspicionless searches should ever be allowed for foreign intelligence gathering? Do you think Article II authorizes it? Do you have a measure in mind for how much incidental collection of data belonging to US citizens makes such collection unconstitutional? Is the line stronger or weaker than domestic collection on innocent people that is incidentally swept up during a search which is justified by a warrant for a particular target?