Update: The government released two new FISC opinions this evening, both of which concern the transition of NSA surveillance to the oversight of the FISC in 2007. Neither of the two documents, available here and here, is the Raw Take order or the 2008 FAA order. The government has one additional production deadline in this case on March 2, 2015.
Since 2011, EFF has fought to shed light on the government's secret reinterpretation of federal surveillance laws. Much of our fight has focused on the legal opinions of the Foreign Intelligence Surveillance Court (FISC), the federal court that oversees many of the intelligence community’s domestic surveillance programs.
In September, in response to our Freedom of Information Act lawsuit, a federal district court in Washington, D.C. ordered the government to review and produce a series of opinions from the secret court. Today, the government is scheduled to produce some of those documents.
We’ve sued the government three separate times to force disclosure of significant opinions of the FISC. These lawsuits have produced numerous previously secret FISC decisions, including: opinions showing the government had repeatedly violated court-imposed restrictions on surveillance, unconstitutional surveillance conducted under the FISA Amendments Act, and the transition to FISC oversight over NSA surveillance authorities.
Our third lawsuit sought the disclosure of a number of still-secret and significant FISC opinions. While the government has not indicated which opinion it intends to produce today, two significant opinions remain secret.
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 won’t release anything today. In fact, in this lawsuit, the government has already claimed that a FISC opinion addressing criminal violations of federal surveillance laws by government officials must remain secret. We fully intend to fight for disclosure of that opinion in court. And, if the government decides to withhold either the Raw Take order or the 2008 FISC order, we promise to fight those withholdings as well. But our hope is that the government will save us all the time and expense of taxpayer dollars, and release the opinions without a lengthy court battle.
The public has a fundamental right to know, read, and understand the decisions of the federal courts. That’s true whether the opinions concern national security surveillance or more mundane issues. Secret courts, and secret court opinions, are inimical to our democratic system. Hopefully, today’s disclosures will move us one step closer to ending the government’s secret surveillance law practices.