Debate Over Mass Surveillance Hampered by Undisclosed FISA Court Decisions
By Electronic Frontier Foundation
San Francisco - In a continuing campaign to uncover the government’s secret interpretations of the surveillance laws underlying the National Security Agency (NSA)’s spying programs, the Electronic Frontier Foundation (EFF) today filed another lawsuit against the Department of Justice, demanding that the government hand over key Foreign Intelligence Surveillance Court (FISA court) opinions and orders.
“We can’t have an informed debate about mass surveillance with access to only half the story,” EFF Staff Attorney Mark Rumold said. “The government’s secret interpretation of laws and the Constitution needs to end. Disclosure of the opinions we’ve requested will be an important step towards providing the public with the information it needs to meaningfully debate the propriety of these programs.”
In recent months, the U.S. intelligence community has sought to repair its image by posting FISA court decisions and other documents on a new Tumblr site, icontherecord.tumblr.com. While this looks like an altruistic attempt to provide transparency, government officials often fail to acknowledge that the documents are primarily being made public in response to successful FOIA litigation from organizations such as EFF.
So far, EFF’s FOIA lawsuits have forced the government to disclose FISA court opinions detailing how the NSA violated court orders and the Fourth Amendment, as well other troubling facts and insight about the operations of these programs. We have also learned of the existence of other records and opinions that EFF believes should be made public.
“With all the disclosures that have taken place over the past year, there’s no valid reason these opinions are still secret,” EFF Senior Counsel David Sobel said. “The government’s refusal to provide these opinions looks more like an attempt to control public opinion about the NSA’s operations, rather than protecting any legitimate intelligence sources or methods. ”
EFF has yet to receive key documents in response to four outstanding FOIA requests. Among the most significant records EFF is seeking in this FOIA suit:
- The FISA court’s “Raw Take” order, which was revealed in documents released by Edward Snowden. According to the New York Times, this secret 2002 order weakened restrictions on sharing private data, allowing federal intelligence agencies to share unfiltered information about Americans.
- Two FISA court opinions from 2007 that first authorized, then later stopped, the NSA’s warrantless content collection program approved by President George W. Bush.
- The first FISA court opinion from 2008 that analyzed the legality of NSA surveillance under Section 702 of the FISA Amendments Act.
EFF has also requested any still-secret Foreign Intelligence Surveillance Court of Review (FISCR) decisions and appeals from the FISCR to the Supreme Court on NSA surveillance.
For the complaint: https://www.eff.org/document/eff-v-doj-fisc-opinion-foia-2014
For more information and the underlying FOIA requests: https://www.eff.org/foia/fisc-orders-illegal-government-surveillance
