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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Filed Under: doj, fisa, fisa amendments act, foia, secret interpretation
Companies: eff

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  1. This comment has been flagged by the community. Click here to show it
    horse with no name, 12 Jun 2013 @ 11:57pm

    Re: Re: Re: Re: 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.

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