EFF Sues DOJ Over Its Refusal To Release FISA Court Documents Pertaining To Compelled Technical Assistance

from the EFF:DOJ::Coroner:Dr.-Nick dept

Given the heightened interest in the government's efforts to compel companies like Apple to break into their own products for them, the EFF figured it would be a good time to ask the government whether it had used FISA court orders to achieve these ends.

Naturally, the government would rather not discuss its efforts to force Apple, et al. to cough up user data and communications. Hence the secrecy surrounding its use of NSLs, subpoenas and gag orders. Hence, also, its desire to keep cases involving All Writs Acts orders under seal if possible. Hence also (also) its refusal to discuss the secret happenings in its most secret court.

The EFF filed FOIA requests with the DOJ in October of last year and followed up with more in March. The October request sought documents about FISA court decisions related to requests for technical assistance from US companies. After a few months of back-and-forth, the DOJ claimed only two responsive documents were found -- neither of which was a court decision… and neither of which would be released.

The EFF's most recent request broadened the search parameters in hopes of landing more responsive documents.

Any “decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (as defined in section 601(e)),” issued from 1978 to June 1, 2015, “that includes a significant construction or interpretation of any provision of law, including any novel or significant construction or interpretation of the term ‘specific selection term.’”
It also requested the same documents for the period of June 2015 to the present. As of this point, it has yet to receive a response.

The EFF is now suing the DOJ for wrongfully withholding responsive documents and other violations of FOIA regulations, including "performing inadequate searches."

The documents it's seeking are of significant public interest, especially now that the FBI's All Writs-enabled technical assistance demands are at the center of a second war over encryption. As staff attorney Nate Cardozo points out, the devices and services used by millions of Americans shouldn't be subject to the whims of secret courts relying wholly on government ex parte presentations and submissions.
“If the government is obtaining FISC orders to force a company to build backdoors or decrypt their users’ communications, the public has a right to know about those secret demands to compromise people’s phones and computers,” said Cardozo. “The government should not be able to conscript private companies into weakening the security of these devices, particularly via secret court orders.”

Filed Under: all writs act, doj, fisa, fisa court, foia, technical assistance, usa freedom act
Companies: eff

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  1. identicon
    Anonymous Coward, 21 Apr 2016 @ 6:16am

    You have to wonder what kind of effect this could have on the SCOTUS vacancy.

    So now you have a situation where the Cartman Court (FISA) could embarrass a number of very large corporations that have a history of diddling elected officials. It is not like you'd expect the FISA judges not to be bucking for SCOTUS themselves. So there would appear to be a conflict of interests here. Not that FISA hasn't always been a conflict of Interest since it violates the separation of powers doctrine.

    I imagine they'll have to hold a skull and bones ceremony to figure out what to do, like they did in 2000.

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