The American Civil Liberties Union (ACLU) has filed a motion to reveal the secret court opinions with "novel or significant interpretations" of surveillance law, in a renewed push for government transparency.
The motion, filed Wednesday by the ACLU and Yale Law School's Media Freedom and Information Access Clinic, asks the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence gathering activities in secret, to release 23 classified decisions it made between 9/11 and the passage of the USA Freedom Act in June 2015.
As ACLU National Security Project staff attorney Patrick Toomey explains, the opinions are part of a "much larger collection of hidden rulings on all sorts of government surveillance activities that affect the privacy rights of Americans."
Among them is the court order that the government used to direct Yahoo to secretly scan its users' emails for "a specific set of characters." Toomey writes:
These court rulings are essential for the public to understand how federal laws are being construed and implemented. They also show how constitutional protections for personal privacy and expressive activities are being enforced by the courts. In other words, access to these opinions is necessary for the public to properly oversee their government.
Although the USA Freedom Act requires the release of novel FISA court opinions on surveillance law, the government maintains that the rule does not apply retroactively—thereby protecting the panel from publishing many of its post-9/11 opinions, which helped create an "unprecedented buildup" of secret surveillance laws.
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Even after National Security Agency (NSA) whistleblower Edward Snowden revealed the scope of mass surveillance in 2013, sparking widespread outcry, dozens of rulings on spying operations remain hidden from the public eye, which stymies efforts to keep the government accountable, civil liberties advocates say.
"These rulings are necessary to inform the public about the scope of the government's surveillance powers today," the ACLU's motion states.
Toomey writes that the rulings helped influence a number of novel spying activities, including:
- The government's use of malware, which it calls "Network Investigative Techniques"
- The government's efforts to compel technology companies to weaken or circumvent their own encryption protocols
- The government's efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities
- The government's use of "cybersignatures" to search through internet communications for evidence of computer intrusions
- The government's use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA)
- The government's warrantless surveillance of Americans under FISA Section 702—a controversial authority scheduled to expire in December 2017
- The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act
Without these rulings being made public, "it simply isn't possible to understand the government's claimed authority to conduct surveillance," Toomey writes.
As he told The Intercept on Wednesday, "The people of this country can't hold the government accountable for its surveillance activities unless they know what our laws allow. These secret court opinions define the limits of the government's spying powers. Their disclosure is essential for meaningful public oversight in our democracy."