EFF Sues to Get Secret Court Rulings Showing Feds Violated Spy Law

The Electronic Frontier Foundation sued the government Thursday demanding a judge order the feds to release documents allegedly showing the National Security Agency unlawfully surveilled Americans’ e-mails and telephone calls.

Specifically the EFF wants the government to make public a secret court ruling that found that the feds had broken a 2008 wiretapping law that was intended to legalize President George W. Bush’s warrantless wiretapping program.

The public first learned of that ruling thanks to three damning statements U.S. Sen. Ron Wyden (D-Oregon) obtained national security clearance to make public. Wyden, a member of the Senate Intelligence Committee, presumably learned of the lawbreaking in briefings from the intelligence community.

The statements concerned alleged abuses of the FISA Amendments Act, a 2008 law that allows the government to conduct widespread e-mail and phone surveillance inside the United States, without probable-cause warrants, targeting people or groups “reasonably believed to be located outside the United States to acquire foreign intelligence information.” In other words, the government can collect all e-mails and phone calls from the United States to Lebanon, so long as the target is a suspected terrorist group in Lebanon. If the government collects e-mails that are sent by people believed to be American, the person’s identity is supposed to be given a pseudonym or “minimized.”

The government is required to get approval from a secret court known as the Foreign Intelligence Surveillance Court or FISC for both wide-net and targeted surveillance performed inside the United States.

Here are the statements Wyden was authorized to divulge:

• “A recent unclassified report noted that the [FISC] has repeatedly held that collection carried out pursuant to the FISA Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.”

• “It is also true that on at least one occasion the [FISC] held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.”

• “I believe that the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the [FISC] has reached this same conclusion.”

In short, Wyden is trying to say that the NSA has found a way to collect a ton of information on Americans and sift through it in a way that he considers to be illegal. And, in at least one secret decision by a secret court, judges agree with him.

On July 26, the EFF sought documents under a Freedom of Information Act claim to support Wyden’s statements, including classified FISA court opinions, reports and any documents connected to congressional briefings about the topic. The government did not forward any documents, so the EFF sued in federal court in the District of Columbia.

Kathleen Turner, the legislative director at the Office of the Director of National Intelligence, told Wyden in a letter authorizing his statements that the FISA court’s opinions are classified.

She also told Wyden that “The government has remedied these concerns and the FISC has continued to approve the collection as consistent with the statute and reasonable under the Fourth Amendment.” (.pdf)

The FISA Amendments Act, expiring at year’s end, authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”

The FISA Amendments Act, which the Obama administration said was its top intelligence priority, generally requires the Foreign Intelligence Surveillance Court to rubber-stamp terror-related electronic surveillance requests that ensnare Americans’ communications. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application.

Committees in the House and Senate have agreed to reauthorize the act for up to five years. No floor votes have been taken.