U.S. Spy Court Pushed to Release Sealed Records

By Brandi Buchman

WASHINGTON (CN) – The American Civil Liberties Union wants the federal government to unveil a trove of secret, sealed court records that contain crucial information about National Security Agency surveillance programs.

In a newly public motion, the civil-rights stalwart asks the Foreign Intelligence Surveillance Court to release records, “opinions and orders containing novel or significant interpretations of the law,” issued between Sept. 11, 2001 and June 2015.

The ACLU alleges that the shrouded rulings “appear to address a range of novel surveillance activities,” including those that have already come up for debate before, such as with the government’s use PRISM and Upstream data-collection operations.

PRISM can operate as a storage hub for real-time communication between companies like Google or Facebook to targeted accounts. Upstream, which serves as the agency’s digital search and seizure tool,  allows the government to capture the internet communications of U.S. citizens and other residents as the data travels through the internet’s infrastructure.

In the 39-page document, dated Oct. 19, the civil-rights group argues that the public has a right to inspect the sealed records.

The trove includes information on the NSA’s bulk-search email records captured in Yahoo customer communications; information on the government’s use of malware; and information on its “use of cyber signatures as a basis for surveillance conducted pursuant to the Foreign Intelligence Surveillance Act.”

Regarding specific opinions, the ACLU wishes to records on how the FISA court forced tech company Lavabit to disclose its source code, and how the FBI and CIA have been able to monitor the spending habits of Americans or other terrorist threats to national security under protections laid out in the Patriot Act.

Setting its position squarely, the ACLU emphasized that, over the last 15 years, the court has expanded its “programmatic approval and review of government surveillance activities that affect countless Americans,” while avoiding public transparency by leaned unconstitutionally on a statutory time limit.

“The government has taken the position that its statutory disclosure obligation does not apply to opinions that predate the [USA FREEDOM Act’s] passage on June 2, 2015,” the ACLU wrote. “As a result, a number of significant opinions and orders of this court issued prior to [that date] remain secret.”

Later in the brief, the ACLU notes that “the significant legal interpretations of this court are subject to the public’s First Amendment right of access.”

“No proper basis exists to keep that legal analysis secret,” the motion continues.

Under the protection of the USA FREEDOM Act, the federal government gives itself the authority to install roving wiretaps in coordination with the NSA. The act was implemented two years after Edward Snowden published a cache of classified memos revealing the institute’s use of bulk-data-collection program.

This is not the first time the ACLU has challenged the opacity of the foreign intelligence court. A similar motion filed by the organization two years ago asked the court to disclose its records of interpretation on the vague language found in Section 215 of the Patriot Act. Section 215 specifically allows for the court’s collection of tangible items, like a driver’s license or internet browsing patterns, to be brought forward as evidence in an investigation.

The ACLU won the right to sue the NSA directly just last month, claiming that the organization violated its rights and privileged communications when it spied on them.

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