Electronic Activists Publish Secretive Federal Court Docs

SAN FRANCISCO, Calif. (CN) – Electronic-privacy advocates published several previously classified documents that shed light on the practices of a secretive but powerful federal court.

The Electronic Frontier Foundation, an organization that advocates for civil liberties in the digital world, released a trove of documents relating to the operation of the U.S. Foreign Intelligence Surveillance Court on Wednesday.

The EFF obtained the documents through a federal Freedom of Information Act lawsuit it filed in last year.

The documents are FISC opinions that mostly relate to Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008, signed into law by former President Barack Obama. Section 702 authorizes the targeting of non-U.S. citizens that are reasonably believed to be outside of the United States, but the ancillary effects of the amendment have created some of the controversial bulk data collection mechanisms administered by the National Security Agency.

Aaron Mackey, attorney for the EFF, told Courthouse News the opinions show that as soon as the 702 program was started, the FBI, CIA and NSA violated their own protocols, often collecting information from American citizens without a warrant.

“The intelligence agencies were consistently out of compliance with their own rules,” Mackey said.

As the EFF continues to comb through the documents, they note a 2014 challenge to 702 from an unnamed communications provider, such as a telephone company or internet service provider.

The provider questioned the legality of one element of the 702 program, which is unclear due to redactions. When the provider came before the court, the U.S. Department of Justice cited previous, sealed FISC opinions.

“It’s hard to overstate how unlike any other court that is,” Mackey said. “Obviously, it gives one side an immense advantage.”

Again, redactions cloud the precise process and outcome, but the provider was eventually order to comply.

“These opinions also provide important context about the operation of Section 702 and the FISC’s oversight,” wrote Mark Rumold, a senior staff attorney for the EFF, on its website. “And they show that 702 is a law in need of reform. The opinions show that, almost from the outset of the law in 2008, the intelligence community has overstepped the court-imposed legal restrictions on the operation of the surveillance.”

The documents were produced after the EFF sued the U.S. Department of Justice in April of last year. The two parties met and the government agreed to begin disclosing documents relating to various FISC opinions. The DOJ will hand over two more batches of documents, according to an agreement forged between the parties.

The court case continues as the EFF must mull further action surrounding whether it believes more documents are being withheld or whether all of the redactions are legal, Mackey said.

The EFF continues to push for FISC decisions to be made public as the court has evolved from merely processing warrants to deciding the constitutionality of major surveillance programs, all the while shielded from public view.

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

The news outlet also reported that 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.

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

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

Mackey said that the 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, should usher in a new, more transparent era for the court.

“This court does not operate within the framework of traditional checks and balances we have in a constitutional republic,” Mackey said.

 

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