FISA Court Says DOJ's Claim That It Can't Reveal Secret Interpretation Of The Law Is Wrong

from the onward dept

We’ve written a few times about the EFF’s lawsuit against the government, trying to reveal the FISA Court’s secret interpretation of the FISA Amendments Act (which is at the core of the NSA surveillance dragnet of all phone record data). The DOJ has warned how this would be the end of the world and, more recently, said that it can’t reveal the ruling because the FISA court has said that it must be secret, while an earlier ruling from the FISA court said that the FISA court can’t reveal such rulings — only the DOJ can. The EFF sought clarification, and now the FISA court has more or less said that the DOJ’s argument is full of it, and yes, the DOJ can reveal such things without violating the laws protecting FISA court rulings.

The Court disagrees with the Government that FISC Rule 62 prohibits the disclosure of the copies of the FISC Opinion to EFF under FOIA…. The Government contends that Rule 62 has the effect of placing copies of the Opinion in its possession “under this Court’s seal.”… The term “seal,” however, does not appear in Rule 62, and contrary to the Government’s contention, Rule 62 neither explicitly nor implicitly places the Government’s copies of the Opinion “under seal.”

Rule 62 contains four subsections, all of which generally concern the “Release of Court Records,” but each address a distinct situation… None of these provisions is applicable here.

This doesn’t mean the case is over, but it does mean that the DOJ can no longer use the excuse that even if it’s required to disclose the FISC ruling under the FOIA that it can’t because FISC rulings are secret under that FISC Rule 62.

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Comments on “FISA Court Says DOJ's Claim That It Can't Reveal Secret Interpretation Of The Law Is Wrong”

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51 Comments
gorehound (profile) says:

Troll The NSA 7PM EST

Everyone post forbidden words now:
Assassination Attack Domestic security Drill Exercise Cops Law enforcement Authorities Disaster assistance Disaster management DNDO (Domestic Nuclear Detection Office) National preparedness Mitigation Prevention Response Chemical spill Suspicious package/device Toxic National laboratory Nuclear facility Nuclear threat Cloud Plume Radiation Radioactive Leak Biological infection (prevent) Chemical burn Biological Epidemic Hazardous material incident

Anonymous Coward says:

Re: Troll The NSA 7PM EST

Assassination Attack Domestic security Drill Exercise Cops Law enforcement Authorities Disaster assistance Disaster management DNDO (Domestic Nuclear Detection Office) National preparedness Mitigation Prevention Response Chemical spill Suspicious package/device Toxic National laboratory Nuclear facility Nuclear threat Cloud Plume Radiation Radioactive Leak Biological infection (prevent) Chemical burn Biological Epidemic Hazardous material incident

Rapnel (profile) says:

Re: Re: Troll The NSA 7PM EST

Assassination Attack Domestic security Drill Exercise Cops Law enforcement Authorities Disaster assistance Disaster management DNDO (Domestic Nuclear Detection Office) National preparedness Mitigation Prevention Response Chemical spill Suspicious package/device Toxic National laboratory Nuclear facility Nuclear threat Cloud Plume Radiation Radioactive Leak Biological infection (prevent) Chemical burn Biological Epidemic Hazardous material incident

Lick Man says:

Kid Gloves

When are “reporters” going to take off the kid gloves with this administration? They are treating Obama/Holder like they are untouchable…

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”
Martin Luther King, Jr.

Anonymous Coward says:

Re: Kid Gloves

Remember that revolving door between MPAA and government. Too many leaks, and they might not get those laws passed. It’s not hard to decide that FOX/Newscorp, ABC/Disney, TNT/Time Warner, etc are not going to let the gravy train go completely for the benefit of one story. This is probably why the Guardian led the way in breaking stories against the US for both Wiki-leaks and the Snowden leak,; though from past experiences, I can’t say any news isn’t biased at all.

Anonymous Coward says:

Too much noise from the coop!

For the peace of mind of the little people, it would be well for the Department of Agitprop to (forthwith!) establish a Department of Getting Our Frickin’ Story Straight, for the express purpose of replacing the Department of Chickens With Heads Cut Off. Time is of the essence, as the natives are growing restless as a result of inundation with conflicting disinformation from functionaries from different Departments that use different emphasis on their different code words and phrases that may or may not mean the same or different things.

Cluck. And also clukk!

Anonymous Coward says:

It’s rather ironic here that the FISA court seems more interested in getting their interpretations made public than the DoJ is. Sure at some level it’s just finger pointing and buck passing, each side saying “No, it’s his job!”. But the FISA is shooting genuine holes in the DoJ’s arguments that it can’t reveal the information, when it could pretty easily sit back and leave things at the “the DoJ says the secrets must stay secret because they’re secret” stage for quite a while if they really didn’t want the information revealed.

Anonymous Coward says:

Re: Re:

Here’s what I think, most Judges are elected into office, while the Attorney General is selected by the President. Since the backlash of the minimal news that has been available on the 10 second clips of national TV, Judge’s are trying to distance themselves from the political backlash, and the Attorney General is hoping for a gravy retirement.

out_of_the_blue says:

Courts don't actually have any power to enforce their rulings.

Ever think about that? A court is nothing but clerks, some of whom write opinions. But to put those opinions into action depends ENTIRELY on the executive branch. The only power a court wields is moral power — but that only works when the executive branch at least pretends to follow some moral order. So if DOJ doesn’t want to take action, that’s pretty much the end of the matter.

And we’re at the stage where the DOJ that says some crooks on Wall Street are “too big to prosecute” may well say that even the Supreme Court is “too little to obey”. The rubber-stamping may go on, but it’ll be just to keep some lawyer pals in cushy office.

horse with no name says:

Re: Re: Re:2 The new Techdirt story layout format

The minute I had to read your garbage. My guess your minute is realising Masnick was right and you couldn’t do anything about it except whine like a baby who had his binky taken away.

Actually no. I think that Mike Masnick works on truthiness, which is to say that he uses small pieces of truth as the basis for some interesting stories and points of view, most of which don’t seem to add up to much. The current NSA SURVEILLANCE! deal is just that, a little bit of truth, and then dozens of posts repeating and rephrasing various suppositions rather than facts, building mountains out of turd piles.

The best part is if anyone tries to argue, two things happen: The peanut gallery like you dive in and make personal attacks and get insulting, rather than looking and the opposition opinion, and the someone from the Techdirt staff usually jumps in, points to the one small element of truth that underlies the who structure of poop, and says “look, see, it’s true!” – and the schmucks (like you) buy it.

So no, I am not whining. I am laughing, loud and long. Ask Mike about the 1st amendment arguments against copyright (and how that played out). It’s a great example of truthiness and opinion crashing and burning in front of the courts.

Anonymous Coward says:

Re: Re: Re:4 The new Techdirt story layout format

That is to say, its kind of hypocritical of you to make attacks onthe author/ this website and not expect the same in return. Ifyou have an opinion, bring it. But you arent, you’re doing exactly what your first post rails against, noisy rumblings.

No matter how you slice it, your posts, by their nature, invite this type of response and you know it. We laugh longer and harder at you, sad to say.

Anonymous Coward says:

Re: The new Techdirt story layout format

NSA Surveillance (add mumbly text here) 4th amendment (more mumbly text) illegal recording (mumbly text) outrage / troubling / concerned (mumbly text) what other revelations will come out soon?

Follow this layout, and you too can write a Techdirt story!

Canned Mike, baby!!

Anonymous Coward says:

Senate Appropriations: Cybersecurity Hearing

I’m about halfway through watching video [CSPAN] of the Senate Appropriations Committee Hearing on Cybersecurity which was held earlier today.

The NSA Director, General Keith Alexander, is one of the witnesses testifying at this hearing.

It’s worth noting the questions that have already come from, among others, Senators Patrick Leahy (Vermont) and Mike Johanns (Nebraska). But it’s the questioning from Oregon’s Senator Jeff Merkley that touches directly on the FISA Court’s interpretation of the law.

Senator Merkley’s time starts about 1:23:00 in the CSPAN video. He refers, among other things, to the bill he introduced Tuesday, S.1130 (although not by number), and gets some kind of statement of support for that bill from General Alexander.

Worth watching?and I’m only halfway through the video. Haven’t watched any questions beyond Mr Merkley yet.

Anonymous Coward says:

Re: Senate Appropriations: Cybersecurity Hearing

Oregon’s Senator Jeff Merkley that touches directly on the FISA Court’s interpretation of the law.

For the convenience of those following along at home, here is:

50 U.S.C. ? 1861(b) Recipient and contents of application

Each application under this section?

?.?.?.?.

(2) shall include?

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation?.?.?.?.

Rapnel (profile) says:

Re: Re: Senate Appropriations: Cybersecurity Hearing

Well, yeah, naturally we’ve authorized ourselves to investigate the world for everything. Surveillance helps us do that. Everything is, after all, rather tangible and very, very relevant to everything.

… (thinks: “Damn, and I could’ve just taken that gig putting kids in jail for profit.”…

“Approved.”

Anonymous Coward says:

Re: Re: Senate Appropriations: Cybersecurity Hearing


Sen. Feinstein: [~01:57:00] ?

? Just to be corrected, if I need to corrected, I would like to just quickly read my understanding of ? 215 ?

? [~01:58:00] ? under ? 215 NSA collects phone records ?

? [~01:59:00] ? Is that a fair description? Or can you correct it in any way?

Gen. Alexander: That is accurate, Senator.

Sen. Feinstein: Thank you.


“collects”

“collects phone records”

Jason says:

Re: Senate Appropriations: Cybersecurity Hearing

A SUMMARY

Merkley: Here’s my phone. You have my data. What is the legal basis for you storing MY data?

General: Um, I really, uh, want to um, I feel like that would be good information to have…uh.,.but I have to check. I’m not sure if it’s safe for me to tell you why. If can’t I’ll give you summary of why I can’t…unless of course that’s too dangerous…uh…I just want to make sure I answer this correctly…uh…yeah I will either do that or at the very least in the NOT TELEVISED SESSION tomorrow, I’ll give you at least a vague reason why I can’t.

Chair: Actually we don’t really care, just send him a note that says whatever, okay? Okay Merkley? Will that shut you up?

Merkley: Okay, but my bill….I mean what you’re saying seems to suggest that this legal basis should be public. That’s what my bill was about. So you would support that?

General: Um…uh..Yeah, I don’t know.

Anonymous Coward says:

so yet again, a security body, acting for ‘the good of and on behalf of the people’ can take a law, twist it round, inside out, upside down, simply so that they can then interpret that law in a way it was not drafted, it a way it was not implemented, in a way it was never intended, just so it can be used against members of the public in a way that suits said security body. not bad for a democratic nation that has freedom, supposedly, as one of it’s main desires in life!

obama bin lyin says:

assassination attemp against a communist watermelon from germany

I love this blast every nsa red flag keyword sh*t. Here goes…nuclear materials dirty bombs and gravy make for a great dinner only if you have taters and weapons of mass destruction. the nuclear launch codes are ready for you mr president. kill murder death blow up. SWAT teams military regime mercenaries government documents Edward Snowden is a national treasure. nogalez cartel Mexican army smuggle across your moms ass crack cocaine cops attack everybody eats bodies dies then government does fema camps and forces in chips and dip. facility lockdown 24 7 airplane national preparedness my assassination watermelon no more GMO. WHO is PORK WHO Foot and mouth FMD. virus outbreak from rich politicians with vaccines. CDc plagued with liars and killers. Thank you all be here all night…or will I.Lmao

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