Watchdog Demands Info From Secret Court

SAN FRANCISCO (CN) - A federal lawsuit Tuesday shows the strident debate over balancing privacy and security in a world rife with digital communications shows no signs of abating.

The Electronic Frontier Foundation sued the Department of Justice, seeking access to documents from the nation's most secretive court — the Foreign Intelligence Surveillance Court — dealing with the federal government's efforts to compel technology companies to provide access to devices such as the iPhone, and software-related communications.

"The court is deciding important questions in secret and the public have a right to know," said EFF attorney Aaron Mackey. "Initially this court was designed as a warrant court, to allow the government to perform surveillance on targets in foreign countries. Now it decides whether broad surveillance programs enacted by the government are constitutional.

"These programs are highly controversial and should be subject to public debate."

The surveillance court has processed nearly 34,000 applications for warrants since 1979 and denied only 11 of them, according to the Washington Post.

During the first 23 years of the court's existence it processed about 600 warrant applications a year. Since the Sept. 11, 2001 terror attacks, the warrant requests have nearly tripled, to about 1,700 a year, according to the Post.

Congress established the Foreign Intelligence Surveillance Court in 1979 to approve or deny applications for warrants in national security investigations.

Unlike most courts, where most proceedings and rulings are a matter of public record, the Foreign Intelligence Surveillance Court operates with strict secrecy.

However, Mackey says that passage of the USA Freedom Act of 2015, after Edward Snowden's revelations that the National Security Agency collected bulk data about U.S. citizens' communications, a new era should have begun for the surveillance court.

"Congress required more transparency in relation to these programs, and we believe our requests fit squarely within the new provisions of the USA Freedom Act," Mackey said.

In October 2015, the EFF asked the surveillance court to provide any "opinions or orders regarding any applications submitted to the court that included requests for technical assistance under FISA."

The EFF was looking for documents containing evidence the Department of Justice was requesting decryption of private communication devices, such as smartphones, or any communication—related software, Mackey said.

The surveillance court told EFF it found only two such records, and refused to release them, citing confidentially provisions. The EFF appeal was denied.

"We had two basic arguments: The court didn't conduct an adequate search and they misinterpreted our order to be solely about the iPhone, when it was much broader than that," Mackey said.

The EFF made a follow-up request in March, which the surveillance court has not yet acknowledged, according to the complaint.

The nonprofit EFF wants the Department of Justice ordered to conduct a more comprehensive search and release the documents.

Mackey said the EFF is not positive such documents exist, but recent high-profile incidents, such as the investigation of the iPhone 5 belonging to Syed Farook, who killed 14 people in San Bernardino, indicate that the government is trying to compel companies to do this.

The New York Times and others have reported that the federal government has asked technology companies for software source code so law enforcement can exploit security flaws.

Microsoft also has sued the Department of Justice this month, claiming it unconstitutionally prohibits tech companies from telling customers when the government reads their emails and other data.

"EFF seeks to inform the public about the extent to which the government has used FISA and the FISC to compel private companies into providing assistance that would undermine the safety and security of millions of people who rely on software and the devices that run them, such as the iPhone, every day," the complaint states.

The Department of Justice did not respond to a request for comment on Tuesday.

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