The Surveillance State Suffers a Surprise Legal Setback
The Electronic Frontier Foundation scored a remarkable — and remarkably timely — legal victory on Wednesday. The secret court at the center of the recent NSA surveillance revelations allowed the group's push for the release of a ruling on violations of Americans' Fourth Amendment rights to move forward.
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In May, we reported on what was then a fairly sleepy issue, a distant node on the EFF's longstanding push to uncover how the NSA's intelligence-gathering systems conflicted with the Constitution. In July 2012, a letter from the Director of National Intelligence to Senator Ron Wyden of Oregon revealed that a ruling by the secret Foreign Intelligence Surveillance Court (FISC) found Fourth Amendment violations in the government's surveillance.
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In response, the EFF filed a Freedom of Information Act request for the release of the ruling, an effort that was blocked by the Department of Justice. Justice, it's worth noting, both relies on the FISC for authorization to conduct intelligence sweeps and is not eager to have those sweeps made public. Justice said that the ruling was confidential, prompting EFF to sue. In response, the agency then said that it couldn't release even part of the ruling, due to FISC's rules.
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So the EFF asked FISC if that was the case. On Wednesday, the court said: Nope, albeit in more legally appropriate language. "The Court disagrees with the Government," the decision reads, "that FISC Rule 62 prohibits the disclosure of the copies of the FISC opinion to EFF under FOIA."
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In a phone interview with The Atlantic Wire, EFF staff attorney Mark Rumold explained what comes next.
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"Now we go back to the regular district court in D.C., and we reopen the FOIA case, and we move forward," he said. "In their earlier arguments, [Justice] claimed that the only thing requiring them to withhold the opinion as a whole was the FISC's rules." Since the Freedom of Information Act requires the release of any information that can be segregated from classified data, Rumold said, "I think at this point they're going to have to release parts of the opinion."
(The speed with which this happened appears to have taken the EFF by surprise; Rumold indicates that they didn't even know that the court had a public docket until someone tweeted about it.)
Making this a substantial change from where the organization was in May — or even where it was last week. It's not clear if recent events prompted the response. It was, however, on June 7 — the day after the published leak of NSA's PRISM program — that the Department of Justice finally responded to the EFF's motion. Rumold suggested that it was Justice's "flimsy" argument that prompted the EFF's victory, but, as he noted, FISC "doesn't exist in a vacuum." After the Snowden leaks, the court faces a number of challenges aimed at revealing how it operates, including legislation introduced by eight senators on Tuesday. The EFF finds itself in the enviable position of being far ahead of the game in making a key decision public — and FISC in the happy position having passed the buck.
"Legislation requiring public disclosure of opinions by FISC is a vital component of reform going forward," Rumold said. What the group aims to do at this point is to ensure that details of the NSA and FISC's past behavior is also known. But most of all, Rumold said, the ruling sends a message to an administration that prides itself on the use of legislative and judicial authorization for its surveillance activity. With FISC acknowledging that the ruling can be made public, there's only branch of government still actively working to hide details of surveillance systems from Congress: Obama's.
Read the entire FISC decision below.
Photo: FISC presiding judge Reggie Walton is pictured during a non-secret 2007 case. (AP)
