In Response to EFF Lawsuit, Government Ordered to Release Secret Surveillance Court Documents Today

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EFF.orgUpdate: The gov­ern­ment released two new FISC opin­ions this evening, both of which con­cern the tran­si­tion of NSA sur­veil­lance to the over­sight of the FISC in 2007. Nei­ther of the two doc­u­ments, avail­able here and here, is the Raw Take order or the 2008 FAA order. The gov­ern­ment has one addi­tion­al pro­duc­tion dead­line in this case on March 2, 2015.

Since 2011, EFF has fought to shed light on the government’s secret rein­ter­pre­ta­tion of fed­er­al sur­veil­lance laws. Much of our fight has focused on the legal opin­ions of the For­eign Intel­li­gence Sur­veil­lance Court (FISC), the fed­er­al court that over­sees many of the intel­li­gence community’s domes­tic sur­veil­lance pro­grams.

In Sep­tem­ber, in response to our Free­dom of Infor­ma­tion Act law­suit, a fed­er­al dis­trict court in Wash­ing­ton, D.C. ordered the gov­ern­ment to review and pro­duce a series of opin­ions from the secret court. Today, the gov­ern­ment is sched­uled to pro­duce some of those doc­u­ments.

We’ve sued the gov­ern­ment three sep­a­rate times to force dis­clo­sure of sig­nif­i­cant opin­ions of the FISC. These law­suits have pro­duced numer­ous pre­vi­ous­ly secret FISC deci­sions, includ­ing: opin­ions show­ing the gov­ern­ment had repeat­ed­ly vio­lat­ed court-imposed restric­tions on sur­veil­lance, uncon­sti­tu­tion­al sur­veil­lance con­duct­ed under the FISA Amend­ments Act, and the tran­si­tion to FISC over­sight over NSA sur­veil­lance author­i­ties.

Our third law­suit sought the dis­clo­sure of a num­ber of still-secret and sig­nif­i­cant FISC opin­ions. While the gov­ern­ment has not indi­cat­ed which opin­ion it intends to pro­duce today, two sig­nif­i­cant opin­ions remain secret.

First, the so-called “Raw Take” order from 2002. The exis­tence of this opin­ion was first dis­closed in a New York Times arti­cle based, in part, off the Snow­den dis­clo­sures. As the Times described the opin­ion, it “appears to have been the first sub­stan­tial demon­stra­tion of the court’s will­ing­ness after Sept. 11 to rein­ter­pret the law to expand gov­ern­ment pow­ers.” The order, appar­ent­ly, “weak­ened restric­tions on shar­ing pri­vate infor­ma­tion about Amer­i­cans, accord­ing to doc­u­ments and inter­views.” Beyond what has been report­ed in the Times arti­cle, not much more is known about the opin­ion.

The sec­ond opin­ion that remains secret is a 2008 FISC opin­ion con­cern­ing the legal­i­ty and con­sti­tu­tion­al­i­ty of sur­veil­lance under the FISA Amend­ments Act (FAA). This opin­ion, described as the “Roset­ta Stone” of FAA sur­veil­lance by those famil­iar with it, pur­port­ed­ly rep­re­sents the FISC’s full assess­ment of the range of legal issues pre­sent­ed by NSA sur­veil­lance under Sec­tion 702 of the FAA—a pro­vi­sion of law autho­riz­ing the gov­ern­ment to con­duct war­rant­less sur­veil­lance with­in the Unit­ed States of over­seas tar­gets. Impor­tant­ly, the opin­ion like­ly dis­cuss­es the con­sti­tu­tion­al­i­ty of the NSA’s upstream sur­veil­lance operations—currently, the only fed­er­al court deci­sion on this top­ic. Despite this opinion’s cen­tral­i­ty to under­stand­ing FAA sur­veil­lance, it has remained secret for near­ly 7 years.

Of course, it’s pos­si­ble the gov­ern­ment won’t release any­thing today. In fact, in this law­suit, the gov­ern­ment has already claimed that a FISC opin­ion address­ing crim­i­nal vio­la­tions of fed­er­al sur­veil­lance laws by gov­ern­ment offi­cials must remain secret. We ful­ly intend to fight for dis­clo­sure of that opin­ion in court. And, if the gov­ern­ment decides to with­hold either the Raw Take order or the 2008 FISC order, we promise to fight those with­hold­ings as well. But our hope is that the gov­ern­ment will save us all the time and expense of tax­pay­er dol­lars, and release the opin­ions with­out a lengthy court bat­tle.

The pub­lic has a fun­da­men­tal right to know, read, and under­stand the deci­sions of the fed­er­al courts. That’s true whether the opin­ions con­cern nation­al secu­ri­ty sur­veil­lance or more mun­dane issues. Secret courts, and secret court opin­ions, are inim­i­cal to our demo­c­ra­t­ic sys­tem. Hope­ful­ly, today’s dis­clo­sures will move us one step clos­er to end­ing the government’s secret sur­veil­lance law prac­tices.



Relat­ed Cas­es
FISC Orders on Ille­gal Gov­ern­ment Sur­veil­lance