On Wednesday the American Civil Liberties Union filed a motion with the secretive Foreign Intelligence Surveillance Court asking the court to release 23 legal opinions related to the U.S. government’s classified interpretation of surveillance law.
The ACLU partnered with Yale Law School’s Media Freedom and Information Access Clinic for a motion calling on the FISC to release all opinions that contain “novel or significant interpretations” of law issued between 9/11 and the passage of the USA Freedom Act in June 2015. The FISC court, also known as the FISA court, was created as part of the Foreign Intelligence Surveillance Act of 1978 to approve warrants against spies. However, since the 9/11 attacks the U.S. government has used the court to secretly interpret surveillance law for law enforcement and intelligence agencies. This allows the police and government bureaucracies to operate in the shadows when monitoring the clueless public.
In 2013, NSA whistleblower Edward Snowden exposed the FISA court’s authorization of mass collection of American’s phone records. When the USA Freedom Act passed, it was celebrated as a victorious end to mass surveillance, but the truth is the U.S. government continues indiscriminate monitoring in other forms. Even so, understanding the court’s view of the law will provide valuable insight.
“These court rulings are essential for the public to understand how federal laws are being construed and implemented,” the ACLU wrote in a statement. “They also show how constitutional protections for personal privacy and expressive activities are being enforced by the courts. In other words, access to these opinions is necessary for the public to properly oversee their government.”
The U.S. government is attempting to fight the release of these documents by claiming they have no obligation to declassify opinions issued before the USA Freedom Act became law. The ACLU says the secret ruling deals with several issues, including the government’s use of malware; government efforts to force tech companies to disclose source codes and weaken encryption tools; the government’s use of “Stingray” cell phone tracking tools; warrantless domestic surveillance under Foreign Intelligence Surveillance Act Section 702; and bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act.
Also on Wednesday, Yahoo officials asked U.S. Director of National Intelligence James Clapper to declassify a court order that asked the company to set up a program to scan all incoming Yahoo Mail messages. In early October it was reported that Yahoo had secretly installed custom software to search all customers’ emails, supposedly to isolate only emails containing specific data. The program was installed at the behest of the U.S. government, which used a FISA court order to legally justify the violation of privacy.
Reuters reports that Yahoo’s general counsel, Ron Bell, has asked Director Clapper to confirm the existence of the secret order and declassify it so Yahoo officials can publicly comment about the nature of the program. Tech companies like Yahoo are bound by the law to remain quiet about the nature of government surveillance requests and programs.
This has been a consistent problem with the entire FISA court from the beginning. The level of secrecy is ripe for corruption and abuse. The recently leaked Podesta emails discuss how a group referred to as “The Shadow Government” urged the FBI to drop the investigation into Hillary Clinton. Whoever or whatever this Shadow Government is, it seems the FISA court is, indeed, a part of some sort of Deep State cabal of secret courts, hidden government agencies, and a dangerously gross misinterpretation of basic privacy rights. Until the American people are fully aware of the extent of the Surveillance State, they will remain ill-equipped to dismantle it.