Judge Lets Feds Keep a Lid on|Secret Court Opinion Transcripts

OAKLAND, Calif. (CN) - Transcripts from secret court opinions authorizing the collection of call records and telephone data from ordinary citizens will remain under wraps, a federal judge ruled Monday.

Privacy watchdog group Electronic Frontier Foundation had sued Justice Department under the Freedom of Information Act in 2011 for access to opinions in which the Foreign Intelligence Surveillance Court found some of the National Security Agency's surveillance unconstitutional.

In the meantime, NSA whistleblower Edward Snowden leaked the first batch of documents to media outlets and shed further light on the NSA's surveillance tactics.

This led the DOJ to declassify and release hundreds of pages of documents related the government's secret interpretation of Section 215 of the Patriot Act - which it uses to justify spying on millions of Americans' phone conversations.

Earlier this year, EFF and DOJ attorneys sparred over whether the documents that EFF had requested should be released in light of the Snowden leaks. The watchdog group argued that the information was already widely available on the Internet, while DOJ lawyers countered that "leaks to the press don't declassify documents."

After an in camera review of five FISC opinions and orders issued between 2005 and 2008, U.S. District Judge Yvonne Gonzalez Rogers said Monday that the government established a sufficient case for withholding the documents - and the names of the telecommunications providers participating in the call records collection program.

"The FISC orders are properly withheld to protect intelligence sources and methods used by the government to gather intelligence data," Rogers wrote. "The orders discuss specific techniques authorized by the FISC, the details of the underlying investigations, and details concerning how the government operationally and technically implements the FISC-authorized techniques, which the government continues to employ. Disclosure of the documents would reveal intelligence activities or methods described in the FISC orders could allow targets of national security investigations to divine what information was collected when, as well as gaps in surveillance, thus providing a roadmap for evading surveillance. As set forth in DOJ's evidence, the withheld information, in combination with already-public information, would allow targets of government investigations to evade surveillance, thereby jeopardizing national security. Moreover, based on the court's review the documents must be withheld in full and contain no reasonably segregable information."

And despite that the fact that former government officials have already named which phone companies are participating in the data-collection program, disclosure remains unwarranted, Rogers said.

"The inherent risks to national security and government investigations of identifying the specific telecommunications carriers is not mitigated by the government's declassification of general information about the call record collection program," the 13-page ruling states. "As the 9th Circuit has recognized, official confirmation of the existence of or general information about an intelligence program does not eliminate the dangers to national security of compelling disclosure of the program's details."

Rogers did find it necessary, however, to order the release of a legal memo drafted by Justice Department's Office of Legal Counsel, outlining the Commerce Department's obligations to disclose census information under the Patriot Act, balanced against prohibitions in the Census Act.

"The census memorandum was cited as legal authority and adopted as the working law of DOJ," Rogers wrote. "The court's in camera review confirms that DOJ cited the census memorandum in an application to the FISC, referencing it as DOJ's legal position on the census-related issues therein, and contrasting it with other legal issues argued in the application. DOJ offered the Census Memorandum as a statement of the law to bolster its legal arguments concerning matters unrelated to the subject of the census memorandum itself. Thus, DOJ cited the census memorandum in the context of carrying out its duties, and in connection with matters completely unrelated to the OLC's provision of advice to the Department of Commerce. Moreover, DOJ has indicated that it will continue to rely on the census memorandum in other contexts as necessary."

Coincidentally, the Office of the Director of National Intelligence announced on Monday that the Justice Department has declassified and released 38 documents, all relating to the NSA's now-discontinued program to catch bulk electronic communications metadata through the FISC-authorized Pen Register Trap and Trace (PRTT) provision.

One such document is a heavily redacted, 117-page opinion in which FISC Judge John Bates reluctantly gives the NSA permission to continue the bulk collections while excoriating the Obama administration for overcollecting and using data that previous secret court rulings prohibited.

Much of Bates' exploration of the NSA's problems in complying with the FISC court's restrictions has been blacked out, but he pointed to "poor management" as a root cause.

"The government has provided no comprehensive explanation of how so substantial an overcollection occurred," Bates wrote in his memorandum, for which even the issue date has been redacted. "The government has said nothing about how the systemic overcollection was permitted to continue, [redacted]. On the record before the court, the most charitable interpretation possible is that the same factors identified by the government [redacted] remained unabated and in full effect: noncommunication with the technical personnel directly responsible [redacted] resulting from poor management. However, given the duration of this problem, the oversight measures ostensibly taken since [redacted] to detect overcollection, and the extraordinary fact that NSA's end-to-end review overlooked unauthorized acquisitions that were documented in virtually every record of what was acquired, it must be added that those responsible for conducting oversight at NSA failed to do so effectively."

The NSA ditched the metadata collection program authorized by the PRTT provision after a 2011 review found it was "no longer meeting NSA's operational expectations," the Office of the Director of National Intelligence said.

The Justice Department and EFF next face off in October when hearings continue in Jewel v. NSA, another case fighting the NSA's surveillance of Internet and phone records in the United States.

EFF has already accused the government of destroying surveillance records relating to the Jewel case, something the government acknowledged in a hearing in June - claiming that NSA databases are purged on a regular schedule.

But the watchdog group recently revealed that DOJ lawyers asked the judge hearing that case, U.S. District Judge Jeffrey White, to remove information from the transcript of the June hearing. The government also asked White to make his ruling - which allows the government to continue purging its databases - secret.

The government wanted to make these changes privately, before the plaintiffs or plaintiffs' attorneys with the Electronic Frontier Foundation could look at the transcripts, court documents show.

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