ACLU Sues Government Over Unreleased FISA Court Opinions

from the make-with-the-secrets dept

The US government is still holding onto its opacity ideals while publicly touting transparency directives. The FISA court — which presides over the NSA’s surveillance programs — has normally been completely shrouded in darkness. Things changed in 2013 after Ed Snowden began leaking documents.

Forced into a conversation about domestic surveillance, the administration responded with more transparency promises and the signing of the USA Freedom Act into law. The new law curtailed the collection of domestic business records (phone metadata and other third-party records) and required the court to make its opinions public following declassification reviews.

All well and good, but the government has apparently decided the new law only requires transparency going forward. FISA opinions dating back to 2001 still remain locked up, despite transparency promises and reform efforts.

The ACLU is now suing the government to force the release of over a decade’s-worth of FISC opinions. Many of those still withheld contain rulings on issues that are the very definition of “public interest.” The appendix to the motion [PDF] contains a list of opinions the ACLU would like to see released, including the following:

  • The order authorizing Yahoo’s bulk email scanning.
  • Rulings on the FBI’s use of NITs and other malware.
  • Orders compelling “technical assistance” to weaken encryption or hand over code to the US government.
  • Stingray deployments authorized by the FISA court.
  • Possible First Amendment violations arising from the Section 215 program.
  • A 2013 order detailing “unauthorized NSA surveillance.”

The government would like these to remain secret, which is why it’s interpreted the new law to only affect decisions reached after the implementation of the USA Freedom Act. But that runs counter to the whole point of surveillance reform and the administration’s own transparency directives: to better inform the public about the government’s actions. Transparency goes hand-in-hand with accountability and keeping these out of the public’s hands does nothing to further either goal.

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