Monday, September 25, 2023
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Judge Will Review Gov’t Surveillance Records

WASHINGTON (CN) - A federal judge ordered the Justice Department to explain why it withheld certain surveillance records and to submit unredacted versions for a private assessment of whether they can be released.

The Foreign Intelligence Surveillance Act (FISA), which authorized the government to use pen registers and trap and trace devices for foreign-intelligence gathering, was established in response to "the revelations that warrantless electronic surveillance in the name of national security has been seriously abused," according to a U.S. Senate committee report.

FISA required the attorney general to make a semiannual report on the use of the surveillance devices, including information on the number of applications granted and modified under the FISA and the total number of installations approved and denied under emergency circumstances.

The Electronic Privacy Information Center (EPIC) filed a Freedom of Information Act request in October 2013, seeking records about the pen registers and trap and trace devices used for the surveillance of telephone and internet activity.

It specifically sought the release of the FISA semiannual reports, which reportedly include the National Security Division's descriptions of the scope of the Foreign Intelligence Surveillance Court's jurisdiction. The reports also discuss FISA process improvements.

EPIC sued in December 2013, asking for a court order requiring the U.S. Department of Justice to provide responsive documents within 20 days. The group's preliminary injunction request was denied, but U.S. District Judge Ketanji Brown Jackson ordered the parties to submit status reports.

Jackson ruled Thursday that supplemental filings are needed to establish whether specific surveillance documents sought by EPIC contain sensitive details about FBI techniques and procedures used in national security investigations.

The judge denied EPIC and the government's cross-motions without prejudice, finding that the motions are not sufficiently tailored to a discussion of the remaining challenged withholdings.

The Justice Department was ordered to submit supplemental declarations and an updated Vaughn index on the specific withholdings from a portion of one document and the redacted sections of the 25 semiannual reports to Congress. A Vaughn index must identify each document withheld, state the claimed exemption and explain how disclosure would cause harm.

In addition to giving reasons for the withholding of documents, Jackson ruled that the government must also submit specific documents for ex parte submission and a private review by the judge.

The Justice Department must submit unredacted versions of the disputed documents "to determine whether there is any reasonably segregable information that DOJ must still produce," Jackson wrote in the 10-page ruling.

"The arguments in this matter have been nothing short of a continuously moving target," the judge wrote. "It was not until this court's recent hearing on the ripe cross-motions for summary judgment that clarity arrived with respect to precisely which withholdings are still in EPIC's crosshairs."

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