UPDATE: Late tonight, the government released to EFF the "Raw Take" opinion and the 2008 FAA opinion, described below. Those opinions are available here (pdf) and here (pdf). We are reviewing the documents and will post our analysis, along with other documents released by the government, shortly.
Later today, the government is scheduled to release two landmark opinions on NSA spying issued by the secret Foreign Intelligence Surveillance Court. The documents are being released as a result of FOIA lawsuit filed by EFF last year, seeking disclosure of many of the surveillance court's still-secret, yet significant, opinions.
As we wrote in January, the two opinions we are expecting the government to disclose today are:
First, the so-called "Raw Take" order from 2002. The existence of this opinion was first disclosed in a New York Times article based, in part, off the Snowden disclosures. As the Times described the opinion, it "appears to have been the first substantial demonstration of the court’s willingness after Sept. 11 to reinterpret the law to expand government powers." The order, apparently, "weakened restrictions on sharing private information about Americans, according to documents and interviews." Beyond what has been reported in the Times article, not much more is known about the opinion.
The second opinion that remains secret is a 2008 FISC opinion concerning the legality and constitutionality of surveillance under the FISA Amendments Act (FAA). This opinion, described as the "Rosetta Stone" of FAA surveillance by those familiar with it, purportedly represents the FISC’s full assessment of the range of legal issues presented by NSA surveillance under Section 702 of the FAA—a provision of law authorizing the government to conduct warrantless surveillance within the United States of overseas targets. Importantly, the opinion likely discusses the constitutionality of the NSA’s upstream surveillance operations—currently, the only federal court decision on this topic. Despite this opinion's centrality to understanding FAA surveillance, it has remained secret for nearly 7 years.
Of course, it's possible the government will again refuse to release these significant opinions to the public. We expected the government to release at least one of the opinions to us in January after a federal court ordered them to release the documents in stages. However, the interim deadline came and went, and the government failed to release either opinion. Today is the final deadline given by the court.
The past two years—through a combination of leaks, FOIA requests and lawsuits, and discretionary government releases—have resulted in an unprecedented level of transparency around the NSA's domestic surveillance programs. Of course, far too much remains secret, but disclosure of these two opinions would continue a positive trend toward transparency and greater public oversight of the NSA's domestic surveillance operations. But, if the government fails to release the opinions today, it will signal a full reversion back to the unnecessary and unjustifiable secrecy claims that dominated the public discussion prior to June 2013.
Nothing but a full and clear release of these opinions will suffice, and EFF will fight in court to ensure the public is given access to what it deserves: how and in what way the government has interpreted federal surveillance law and the Constitution.
We'll update this post later in the day with any documents we receive.