Government Dealt Blow in Effort to Stop Release of Secret Info on Unlawful Surveillance

Future Tense
The Citizen's Guide to the Future
June 14 2013 4:54 PM

Government Dealt Blow in Effort to Stop Release of Secret Info on Unlawful Surveillance

109742273
Sen. Ron Wyden

Photo by Mark Wilson/Getty Images

Last week, a series of document leaks exposed the National Security Agency’s secret spying programs to intense public scrutiny and criticism. Now the covert surveillance efforts of the U.S. government have been dealt yet another blow—in a legal case involving the unconstitutional monitoring of Americans’ communications.

Ryan Gallagher Ryan Gallagher

Ryan Gallagher is a journalist who reports on surveillance, security, and civil liberties.

On Wednesday, the Foreign Intelligence Surveillance Court rejected an ongoing attempt by the Justice Department to prevent the release of a classified 2011 FISC opinion detailing unlawful surveillance. The existence of the opinion was first disclosed last year by Sen. Ron Wyden, D-Ore., who revealed that there was at least one case in which the FISC had found the government conducted spying that had circumvented the law and was “unreasonable under the Fourth Amendment,” which is supposed to prevent unreasonable searches and seizures.

Advertisement

Prompted by Wyden’s statement, the Electronic Frontier Foundation launched an effort obtain a copy of the FISC opinion through Freedom of Information Act litigation. But the case hit a roadblock when the government claimed an obscure rule prevented it from releasing the opinion, even if it wanted to, because publication would have to be first approved by the FISC judge who authored it. This led EFF to take up the case with the FISC directly, filing a motion asking for the disclosure to be authorized.

On Wednesday, EFF was successful. In what the rights group hailed as an unprecedented victory, FISC Judge Reggie Walton ruled that the government’s argument was invalid and that “the court has not otherwise prohibited the government's disclosure” of the opinion.

With the government’s central argument for refusing to disclose the opinion shattered, the Justice Department will likely now have to produce at least some of the relevant information, even if it’s heavily redacted. The DoJ had not responded to a request for comment at the time of publication. But the DoJ has said in court filings that the opinion “implicates classified intelligence sources” and has suggested that if forced to release it, the department will attempt to use exemptions in FOIA law to withhold certain parts of the opinion that it claims could cause “exceptionally grave and serious damage” to national security if revealed.

The secret opinion’s existence has taken on new significance this month, as leaked documents  published by the Guardian and the Washington Post revealed previously clandestine surveillance programs operated by the NSA. The NSA system code-named PRISM is particularly relevant here. PRISM operates under the Foreign Intelligence Surveillance Act’s section 702, a controversial 2008 amendment that sets out how the government can spy on “persons reasonably believed to be located outside the United States.” PRISM monitors communications sent using the services of Google, Microsoft, Facebook, Yahoo, and other tech firms. This surveillance is targeted specifically at foreigners, but it can in some cases “incidentally” sweep up Americans' communications.

The opinion that the EFF is seeking also relates directly to FISA section 702. According to Sen. Wyden, it shows how “minimization procedures” designed to remove data on innocent U.S. citizens from NSA databases were not being followed properly. Its disclosure could help shed light on the scope of FISA orders and the extent to which systems like PRISM operate as dragnets that can gather innocent users’ private data.

The PRISM system is only a single piece of the NSA’s vast surveillance infrastructure. Indeed, following a classified counter-terrorism briefing Wednesday after the NSA leaks, some lawmakers suggested the recent disclosures had barely scratched the surface of the NSA’s spy efforts. "I don't know if there are other leaks,” said Rep. Loretta Sanchez, D-Calif. “But I will tell you that I believe it's the tip of the iceberg.”

Future Tense is a partnership of SlateNew America, and Arizona State University.

TODAY IN SLATE

Politics

Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

Stop Panicking. America Is Now in Very Good Shape to Respond to the Ebola Crisis.

The 2014 Kansas City Royals Show the Value of Building a Mediocre Baseball Team

The GOP Won’t Win Any Black Votes With Its New “Willie Horton” Ad

Sleater-Kinney Was Once America’s Best Rock Band

Can it be again?

Technocracy

Forget Oculus Rift

This $25 cardboard box turns your phone into an incredibly fun virtual reality experience.

One of Putin’s Favorite Oligarchs Wants to Start an Orthodox Christian Fox News

These Companies in Japan Are More Than 1,000 Years Old

Trending News Channel
Oct. 20 2014 6:17 PM Watch Flashes of Lightning Created in a Lab  
  News & Politics
Politics
Oct. 20 2014 8:14 PM You Should Be Optimistic About Ebola Don’t panic. Here are all the signs that the U.S. is containing the disease.
  Business
Moneybox
Oct. 20 2014 7:23 PM Chipotle’s Magical Burrito Empire Keeps Growing, Might Be Slowing
  Life
Outward
Oct. 20 2014 3:16 PM The Catholic Church Is Changing, and Celibate Gays Are Leading the Way
  Double X
The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don't Work at Facebook. My Doctors Want Me to Freeze My Eggs.
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
  Arts
Brow Beat
Oct. 20 2014 9:13 PM The Smart, Talented, and Utterly Hilarious Leslie Jones Is SNL’s Newest Cast Member
  Technology
Technocracy
Oct. 20 2014 11:36 PM Forget Oculus Rift This $25 cardboard box turns your phone into an incredibly fun virtual-reality experience.
  Health & Science
Bad Astronomy
Oct. 21 2014 7:00 AM Watch the Moon Eat the Sun: The Partial Solar Eclipse on Thursday, Oct. 23
  Sports
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.