EFF Seeks Answers from Secret Court in Ruling on NSA Spying Violations

Tuesday, September 4, 2012, by Anne Marie Tosco

The public may soon learn the details of the secret court ruling that the National Security Agency (“NSA”) violated the Fourth Amendment when it conducted illegal surveillance of e-mails and telephone calls. The Electronic Frontier Foundation (“EFF”), a non-profit defender of digital rights, sued the United States Department of Justice (“DOJ”) on August 30, 2012, demanding the decision of the United States Foreign Intelligence Surveillance Court (“FISC”) be made available by the DOJ immediately. The lawsuit follows the DOJ’s failure to process the EFF’s Freedom of Information Act Request for documents concerning the FISC’s ruling within the 20-day deadline.

 The FISA Amendments Act of 2008 authorized the NSA to secretly observe, without a probable cause warrant, the telephone calls and e-mails of “persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” The acquisition of this information is subject to targeting and minimization procedures, and is subject to the Fourth Amendment to the Constitution. Senator Rob Wyden, a member of the Senate Intelligence Committee, received national security clearance to make public statements concerning the NSA’s abuses of the FISA Amendments Act in violation of the Constitution. Wyden is suggested to have learned of the illegal activity in briefings from the intelligence community.

The Electronic Frontier Foundation (“EFF”) sued the United States Department of Justice (“DOJ”) on August 30, 2012, demanding the decision of the United States Foreign Intelligence Surveillance Court (“FISC”) that the NSA conducted illegal e-mail and telephone surveillance in violation of the Fourth Amendment be made available by the DOJ immediately.

 Wyden was permitted to divulge that while the FISC “has repeatedly held that collection carried out pursuant to the FISA Section 702 minimization procedures . . . is reasonable under the Fourth Amendment,” it has also held at least once that some collection carried out pursuant to this section is unreasonable under the Fourth Amendment. Wyden also stated, “I believe that the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.” The details of this occasion are currently a secret, as the decisions of the FISC are “classified because of the sensitive intelligence matters they concern.” The statements divulged by Wyden were declassified because “the public interest in disclosure outweighs the damage to the national security . . . .”

 The EFF sought written opinions and orders from the FISC discussing illegal government surveillance and any corresponding briefings to Congress regarding those activities. In its complaint, it describes the records requested as involving questions of the government’s integrity. In light of the fact that FISA will expire on December 31, 2012, unless reauthorized, the EFF believes that the release of this information will play a crucial role in the debate over reauthorizing the legislation.  Mark Rumold, an EFF Open Government Legal Fellow, warns, “When law-breaking is allowed to remain secret, there’s no accountability or way to monitor future abuses. It’s time for the government to come clean and tell use about the NSA’s unconstitutional actions.”

 The battle between national security, government transparency, and individual privacy is in the spotlight once again as the EFF awaits a response from the DOJ.