Hundreds of Pages of NSA Spying Documents to be Released As Result of EFF Lawsuit
Electronic Frontier Foundation has won the release of hundreds of previously classified documents detailing activities of the country's long-secret spy court that authorizes domestic surveillance programs. EFF officials said they'll receive the documents in disk form and it will take some hours for technicians to upload the documents to the civil liberty group's website laterTuesday.
The group's lawsuit
against the government seeking the documents was languishing for years until former intelligence worker Edward Snowden released detailed information about the domestic surveillance program earlier this year, reigniting public debate and prompting widespread calls for more public information about the surveillance programs and the secret federal court that authorizes them.
The EFF's lawsuit against telecommunication companies for allegedly participating in the surveillance was tossed out when Congress granted the industry immunity. EFF lawyers called the Snowden disclosure a "tipping point" for the Obama administration that "forced their hand" for more disclosure.
In a major victory
in one of EFF's Freedom of Information Act (FOIA) lawsuits, the Justice Department conceded yesterday that it will release hundreds of pages of documents, including FISA court opinions, related to the government’s secret interpretation of Section 215 of the Patriot Act, the law the NSA has relied upon for years to mass collect the phone records of millions of innocent Americans.
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Like our lawsuit over that 2011 FISA opinion—where the government posted the results on Director of National Intelligence’s new Tumblr account—the Justice Department may attempt to portray this release as being done out of the goodness of its heart and as a testament to its commitment to transparency. While we applaud the government for finally releasing the opinions, it is not simply a case of magnanimity. The Justice Department is releasing this information because a court has ordered it to do so in response to EFF’s FOIA lawsuit, which was filed on the tenth anniversary of the enactment of the Patriot Act—nearly two years ago.
For most of the duration of the lawsuit, the government fought tooth and nail to keep every page of its interpretations secret, even once arguing it should not even be compelled to release the number of pages that their opinions consisted of. It was not until the start of the release of documents leaked by NSA whistleblower Edward Snowden that the government’s position became untenable and the court ordered the government to begin the declassification review process.
The Obama administration's decision in the case comes just two weeks after it declassified three secret FISA opinions — including one in response to a separate EFF lawsuit in the federal court in Washington. In that October 2011 FISA opinion, Judge James D. Bates rebuked government lawyers for repeatedly misrepresenting the operations of the National Security Agency's surveillance programs. He said the government's "upstream" collection of data — taken from internal U.S. data sources — was unconstitutional. Portions of that order remain blacked out.
On Wednesday, while the Justice Department said it would declassify documents in the California case, it asked a judge in the Washington case to rule that it can continue to black out those materials in the October 2011 FISA opinion. Among other reasons given, the government says that disclosure could damage national security.