DOJ Takes Surveillance Records Fight to 9th

SAN FRANCISCO (CN) - Despite a nearly complete victory for the Justice Department in a watchdog group's battle over whether secret court opinions authorizing the collection of call records and telephone data from ordinary citizens should be made public, the Obama administration has lodged an appeal with the 9th Circuit over a single document - a legal opinion drafted by the DOJ that considered ordering the Census Bureau to turn over its collected data to the National Security Administration.

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."

But in August, U.S. District Judge Yvonne Gonzalez Rogers ruled that the government had made its case for withholding five FISC opinions and orders issued between 2005 and 2008 authorizing the call records collection program, as well as the names of the telecommunications providers that participated.

Rogers cited "the inherent risks to national security and government investigations" as her reason to keep the FISC opinions under wraps, despite the Snowden leaks and other pieces of the puzzle that have already been widely disseminated on the Internet and in the media.

However, Rogers also found that a legal memo drafted by the Justice Department's Office of Legal Counsel - which outlined the Commerce Department's obligations to disclose census information under the Patriot Act while still adhering to prohibitions in the Census Act - had been adopted as "working law" by the DOJ and should be released.

On Monday, the Justice Department filed an appeal of that single "portion of the court's judgment dated Aug. 29, 2014 that is adverse to defendant, and the court's denial, in part, of defendant's motion for summary judgment in the court's prior order."

EFF has already said it will not appeal Rogers' decision, although it is participating in other actions against the Obama administration's mass surveillance tactics as a friend of the court.

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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