SAN FRANCISCO (CN) – The federal government is concealing a policy on when it must notify criminal defendants that evidence used against them was obtained through a secret government spying program, the American Civil Liberties Union claimed in court Wednesday.
The ACLU lawsuit seeks records on the Department of Justice’s policy regarding when it must tell individuals that their emails, phone calls and other data were seized and searched without a warrant.
“DOJ has a track record of failing to inform individuals about the surveillance of their communications even when notice is expressly required by law,” the ACLU says in its 35-page complaint. “Accordingly, the public interest in the release of the DOJ policy documents at issue is substantial.”
The ACLU says the Justice Department has withheld records it asked for in a Freedom of Information Act request filed on Feb. 6 this year. The request sought records on a DOJ policy memorandum titled, “Determining Whether Evidence Is ‘Derived From’ Surveillance Under Title III or FISA.”
That memo reportedly outlines the department’s position on when it must inform surveillance targets about how information about them was collected under Title III of the Wiretap Act and Section 7 of the Foreign Intelligence Surveillance Act, or FISA. Those statutes authorize “hundreds of thousands of secret wiretaps and other searches” each year, according to the ACLU.
“The government’s searches under FISA and Title III are generally invisible to the individuals whose privacy they impact,” the ACLU says in its complaint. “Unlike traditional searches of a person’s home, electronic searches rarely leave any sign, and thus individuals whose privacy has been invaded are entirely dependent on the government’s provision of notice.”
For five years, the Department of Justice had a policy of not notifying criminal defendants when evidence used against them was obtained through secret government surveillance, according to a New York Times report published in October 2013 and cited in the complaint.
The Justice Department changed its policy after former Solicitor General Don Verrilli Jr. found in 2013 that there was no legal justification for refusing to disclose such information.
However, the Justice Department’s new policy has remained shrouded in secrecy, making it impossible to determine if prosecutors actually adhere to that directive, the ACLU says.
As few as 10 criminal defendants have received notice that they were the subject of surveillance under Section 702 of FISA, the ACLU says in its complaint. That means there is good reason to suspect “that DOJ is still failing to give individuals notice” as the law requires, especially since the government collects hundreds of millions of communications under Section 702 of FISA each year, the ACLU says.
“FBI agents around the country routinely search these Section 702 databases for information about Americans in criminal investigations, as well as in virtually every national security-related investigation,” the complaint states.
The ACLU says such disclosures are necessary to fully inform the public about when the government will notify them that their private information was seized without a warrant. The records are also critical to inform the ongoing public debate about the reauthorization of Section 702 of FISA, which is set to expire in December 2017.
“This information bears on whether the government’s controversial surveillance powers should be reformed, whether individuals have an opportunity to seek judicial review of this surveillance in the public courts, and whether Congress should act to strengthen existing notice requirements,” the ACLU declares in its lawsuit.
The civil liberties group seeks a court order directing the Justice Department to immediately disclose the requested records.
The ACLU is represented by Linda Lye and Matthew Cagle of the American Civil Liberties Union Foundation of Northern California.
The Department of Justice did not immediately respond to an email seeking comment Wednesday afternoon.