DOJ may have to release U.S. secret court docs on domestic spying capability

DOJ may have to release U.S. secret court docs on domestic spying capability

Summary: The U.S. Justice Dept. may have to release a secret court opinion that determines when a U.S. resident is spied upon by the federal government.


A secret U.S. government court determines whether or not a U.S. resident, protected by Fourth Amendment rights from unwarranted and "unreasonable" searches, can be snooped on by U.S. law enforcement and intelligence agencies.

The trouble is, nobody outside a very small number of federal government officials, the intelligence community, and a bevy of politicians, knows what the court warrants and sanctions. Despite it being a federal court, it's conducted entirely in secret.

But that may change if one privacy group gets its way, blowing the lid on tens of thousands of cases that amounts to, in the words of Sen. Ron Wyden (D-OR), "dragnet surveillance."

Last year, Wyden and Sen. Mark Udall (D-CO) submitted an amendment to Congress that would have forced the U.S. Attorney General to disclose the government's interpretation of the Foreign Intelligence Surveillance Act (FISA).

While the amendment was withdrawn, the Electronic Frontier Foundation (EFF) was eventually successful in having the opinion document of the secret FISA court (FISC), which authorizes in secret the snooping of U.S. and non-U.S. residents, released to the public.

The entire document, bar one line, was redacted:

(U) The Government has provided copies of the opinions and the filings by the Government to this Committee, and the Government will continue to inform the Committee about developments in this matter.

The EFF, at least from this point, had somewhere to take its case further. The document said that the U.S. government and the U.S. Senate Intelligence Committee has "copies" of this opinion.

Now the EFF is seeking to find out what the 86-page opinion holds, which would disclose for the first time in years exactly what warrants a secret government search. But the U.S. Justice Department is fighting back and doesn't want the opinion released in any way, shape or form, on the grounds of — you guessed it — national security.

The Justice Dept. said in a memo asking for a summary judgment on the EFF case, that the "disclosure of the information withheld from [the EFF] could result in exceptionally grave and serious damage to the national security."

It also argues that should the opinion be released, the U.S.'s domestic and foreign enemies would then know how to circumvent its procedures in seeking a secret warrant. 

"Our adversaries and foreign intelligence targets with insight into the United States Government's foreign intelligence collection capabilities, which in turn could be used to develop the means to degrade and evade those collection capabilities," the memo reads.

Not content with the direction in which the Justice Dept. is heading, the EFF took up the case with the FISC directly, according to Slate. Now, FISC Judge Reggie Walton has ordered the Justice Dept. to respond by end of business on June 7 at the latest to an EFF motion requesting the release of the opinion.

This gives the Justice Dept. yet another chance to strike down the motion, but we'll see in a week's time whether or not this opinion is released or not.

(via Slate)

Topics: Privacy, Government US, Security

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.


Log in or register to join the discussion
  • Word!

    Empires always self destruct.
    State power always expands until men become slaves.
    Free people forget what it took to regain their freedom as they continually give it up.
    Prosperous societies always become complacent and forget what made them prosperous.

    "Dying societies accumulate laws like dying men accumulate remedies"
    • word up!

      Yep. And the people become willfully ignorant.

      The goobermint acts well outside any 'constitution' and according to them it's "legal." All they have to do is post a notice that they plan to do thus-and-such, and if nobody balks, it becomes "policy," which they are prepared to "enforce" as if it were "law."
      • Shh its secret

        Not just willfully ignorant.
  • Should

    Legal opinions (especially court opinions) are not, in my humble opinion, legitimate state secrets.
    John L. Ries
    • Not just a Court

      How about laws? Secret laws.
  • I agree with all the posters here so far!

    We didn't need this far reaching surveillance before 911, and we don't need it now - never did! All they needed to do is tweek the rules for sharing information inside the bureaucracy and things would have been fine - and they probably would have gone to far there too - and they did in the '60s fighting the anti-war movement and the Weathermen.
  • You can't have a representative republic...

    ...and a nation of laws if the republic doesn't know what its government is doing or how the government interprets the law. Secret laws and secret courts and secret interpretations of laws is not a representative republic, it's the same sort of totalitarianism that we once stood so strongly (at least supposedly) against.

    Sometimes I think the downfall of the USSR was a bad thing for the US of A. While the old Soviet empire was around, we had something to measure ourselves against. Without that measure, we seem well on the way to becoming the same sort of government by secret edict and secret courts without open due process we were supposed to be against.

    National security has become a tool for destruction of the core principles of the Constitution. The powerful invoke national security whenever they want to hide what they're up to. It has to end.