Government Dealt Blow in Effort to Stop Release of Secret Info on Unlawful Surveillance
|
Posted
Friday, June 14, 2013, at 4:54 PM
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.
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.
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.”
No comments:
Post a Comment