December 22, 2012 | By Mark Rumold

2012 in Review: EFF’s Fight Against Secret Surveillance Law

As the year draws to a close, EFF is looking back at the major trends influencing digital rights in 2012 and discussing where we are in the fight for free expression, innovation, fair use, and privacy. Click here to read other blog posts in this series.

It seems like a fairly straightforward principle: when the government interprets a law in a way that affects citizens, the public is entitled to know the interpretation and understand its effects.

But when it comes to the federal government’s interpretation of electronic surveillance laws, apparently, the general rule just doesn’t seem to apply (or so the Department of Justice seems to think). In 2012, EFF pushed back, taking the DOJ to court for refusing to disclose how they interpret various surveillance laws. Over the past year, EFF litigated three Freedom of Information Act lawsuits -- each concerning a different law used, and secretly interpreted, by the government but shielded from disclosure and the public’s scrutiny.

In the first case, EFF sued the Department of Justice for an Office of Legal Counsel legal opinion on the FBI’s authority to obtain a person’s call record information without using valid legal process. The lawsuit stemmed from a report, written by the Inspector General of the DOJ, that took the FBI to task for its use of so-called “exigent letters” – essentially, notes the FBI would give to phone service providers for information on a person’s subscriber or call history records. The problem? There’s a federal law that requires the FBI to do a bit more than just hand the service provider a note to get that information. Notwithstanding the federal law, and notwithstanding the Inspector General’s severe rebuke, both the FBI and OLC maintained that the FBI had not broken the law; in fact, the OLC opinion said the FBI was not compelled to use any legal process to obtain call records in some circumstances. However, those circumstances – and the laws supporting that interpretation – have not been disclosed. So EFF sued to get them. Unfortunately, this Fall, a district court in Washington, D.C. agreed with the government that the memo could be withheld. But EFF has appealed to the D.C. Circuit, and this Spring we’ll ask the court to reconsider and order the disclosure of the memo.

The second case involves the government’s interpretation and use of Section 215 of the USA PATRIOT Act. Section 215 gives the FBI authority to ask a secret court, the Foreign Intelligence Surveillance Court, for an order to access “any tangible things” relevant to a national security investigation. Needless to say, Section 215 provides the FBI with very broad power to compel phone records, hospital records, education records—anything, really—so long as it’s relevant to an investigation. But for years, Senators briefed on the government’s interpretation of Section 215 have repeatedly complained that the government has secretly re-interpreted this broad authority in a way that would “shock” and “stun” the American public. So, on the 10th Anniversary of the PATRIOT Act’s passage, EFF filed suit to find out how the government had interpreted the provision. Despite releasing thousands of pages about the FBI’s use of 215 over the course of the year, the government has still refused to disclose the records containing the legal interpretations and analysis of Section 215. A federal district court in Oakland, California will hear arguments on the case in February.

And, in the third case, EFF is fighting for access to secret court opinions holding government surveillance unconstitutional. This summer, at the urging of Senator Ron Wyden, the government disclosed for the first time (PDF) that the secret FISA Court held, on at least one occasion, that surveillance conducted under the FISA Amendments Act had violated the Fourth Amendment. The opinions also held that the government’s surveillance had violated the spirit of the law. EFF filed suit in September, hoping to compel disclosure of those FISA Court opinions before the critical FISA Amendments Act re-authorization debate. Unfortunately, the DOJ has stalled the case until at least early January (after the December 31 reauthorization deadline), but we’re still hopeful that that the case will make public much-needed information on the government’s unconstitutional use of its surveillance authorities.

With these cases, we hope to shed light on how the government is using its electronic surveillance authorities and to reaffirm a simple point, fundamental to our democracy: the people have a right to know to how the government interprets laws. And, in 2013, we’ll keep fighting for the public’s right to know what their government is up to – from secret surveillance law, to domestic drone flights, to the government’s use of biometric information, EFF will continue the fight for greater government transparency. We hope you’ll join us and support our fight for the right to know.   

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