On Monday, the US Department of Justice will release to the public hundreds of additional pages of government documents concerning its use of Section 215 of the Patriot Act, the provision of law the NSA relies on to collect the call records of millions of Americans.
The disclosures will follow closely on the heels of yesterday’s reports in the New York Times and Wall Street Journal that the CIA, too, has been using Section 215 to collect, in bulk, the sensitive financial information of millions of Americans making overseas financial transfers. The Times reported that "Several officials also said more than one other bulk collection program has yet to come to light." While it is not clear whether the documents released on Monday will contain information about the CIA's program, we're hopeful that the government will take the opportunity to finally be forthcoming with the American public about all secret bulk collection programs operating under Section 215.
Monday’s disclosures are the result of a Freedom of Information Act lawsuit filed by EFF over two years ago. The suit has already forced the government to release thousands of pages of FISA court opinions, internal executive branch reports, congressional briefings, and other documents concerning Section 215. Documents released as part of the suit have shown the NSA repeatedly misled the FISA court concerning the operation of the bulk call records program, nearly leading the court to terminate the program altogether; that no NSA employee or official knew precisely how and under what circumstances the call records of millions of Americans were being searched; and that the NSA obtained cell-site location information of Americans in bulk without previously seeking the authorization of either the FISA court or the NSA's congressional oversight committees.
The additional disclosures on Monday will mark the final, scheduled government release of documents in EFF’s FOIA lawsuit on Section 215. In addition to the records disclosed as a result of this suit, earlier this year, EFF forced the government to disclose a 2011 FISA court that declared portions of the NSA’s domestic surveillance operation to be unconstitutional. That litigation is still ongoing, although the government has represented that more information—including further portions of a partially redacted footnote concerning yet another misrepresentation to the FISA court—could soon be released.
With previous releases, the government has posted the documents to its Tumblr, IContheRecord, claiming that the disclosures were spurred only by President Obama's directive to declassify information and "the interest of increased transparency." Thus far, they've neglected to mention they were also under a court order to do so.
The past few months have seen the tides turn dramatically in EFF’s ongoing battle against secret surveillance law. In fact, earlier this year, the government refused to disclose even the number of pages in the documents it was attempting to withhold from us. Now, numerous FISA court opinions are widely available to the public, some nearly without redaction.
We have come a long way, but there is still far too much that remains secret. Last week, we filed a brief with the FISA court on behalf of ProPublica seeking disclosure of more court opinions on NSA surveillance; next week, we’ll argue in the DC Circuit that secret surveillance memos of the Department of Justice’s Office of Legal Counsel can’t be shielded from public scrutiny. And we’ll keep using FOIA and the federal courts to fight for the public’s right to know how its government has secretly interpreted federal surveillance law.