Government Says Secret Court Opinion on Law Underlying PRISM Program Needs to Stay Secret

Editor’s Note: The following article was originally published at EFF.org.

Electronic Frontier Foundation

Electronic Frontier Foundation

In a rare public filing in the secret Foreign Intelligence Surveillance Court (FISC), the Justice Department today urged continued secrecy for a 2011 FISC opinion that found the National Security Agency’s surveillance under the FISA Amendments Act to be unconstitutional.  Significantly, the surveillance at issue was carried out under the same controversial legal authority that underlies the NSA’s recently-revealed PRISM program.

EFF filed a suit under the Freedom of Information Act in August 2012, seeking disclosure of the FISC ruling.  Sens. Ron Wyden and Mark Udall revealed the existence of the opinion, which found that collection activities under FISA Section 702  “circumvented the spirit of the law” and violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. But, at the time, the Senators were not permitted to discuss the details publicly. Section 702 has taken on new importance this week, as it appears to form the basis for the extensive PRISM surveillance program reported recently in the Guardian and the Washington Post.

Edward Snowden released documents to The Guardian's Glenn Greenwald detailing the illegal NSA spying on American citizens.

Edward Snowden released documents to The Guardian’s Glenn Greenwald detailing the illegal NSA spying on American citizens.

The government sought to block EFF’s FOIA suit by arguing that only the FISC, itself, can release the opinion.  In an effort to remove that roadblock, EFF filed a motion with the FISC on April 22 seeking the surveillance court’s consent to disclosure, should the document be found to be otherwise subject to release under FOIA.  In its response filed with the FISC today, the government offers a circular argument, asserting that only the Executive Branch can de-classify the opinion, but that it is somehow prohibited by the FISC rules from doing so.

The government’s argument is guaranteed to make heads spin. DOJ earlier argued that it lacks discretion to release the FISC opinion without the FISC’s consent, but DOJ now argues that if the FISC were to agree with EFF, “the consequence would be that the Government could release the opinion or any portion of it in its discretion.”  But FISC material is classified solely because the Executive Branch demands that it be, so release of the opinion has always been a matter of Executive discretion.

Frankly, it’s difficult to understand what DOJ is saying. The Government seems to have a knee-jerk inclination towards secrecy, one that often – as in this case – simply defies logic. The government’s bottom line is this: their rules trump the public’s statutory rights. But it’s not the province of the Executive branch to determine which rights citizens get to assert.

The events of the past week have demonstrated that the public is angry about the NSA’s domestic surveillance program. EFF hoped the public outcry might lead the government to rethink its position in this case (and, notably, DOJ has in two other EFF cases). But, for now, the government is digging in its heels and refusing to budge. But a democracy demands more. When the government acts unconstitutionally, the public has a fundamental right to review, understand, and correct that government action. Despite the DOJ’s filing today, EFF intends to keep fighting against the government’s secret surveillance practices.

EFF is a member-supported organization that fights for your privacy and digital civil liberties, and we’ve opposed NSA spying programs for years.  Please consider making a donation to end unchecked government surveillance!

  • David Sobel (EFF.org)
  • https://www.eff.org/about/staff/david-sobel
  • David Sobel is Senior Counsel at EFF's Washington, DC office, where he directs the FOIA Litigation for Accountable Government (FLAG) Project. David has handled numerous cases seeking the disclosure of government documents on privacy policy, including electronic surveillance, encryption controls and airline passenger screening initiatives. He served as co-counsel in the challenge to government secrecy concerning post-September 11 detentions and participated in the submission of a civil liberties amicus brief in the first-ever proceeding of the Foreign Intelligence Surveillance Court of Review. David is co-editor of the 2002 and 2004 editions of Litigation Under the Federal Open Government Laws. He is a recipient of EFF's Pioneer Award (2003) and the American Library Association's James Madison Award (2004), and has been inducted into the First Amendment Center's National FOIA Hall of Fame (2006). David was formerly counsel to the non-profit National Security Archive, and, in 1994, co-founded the Electronic Privacy Information Center, where he directed FOIA litigation and focused on government surveillance and collection of personal information. David is a graduate of the University of Michigan and the University of Florida College of Law. Follow David's work at the URL noted above.


  • Mark Rumold (EFF.org)
  • https://www.eff.org/about/staff/mark-rumold
  • Mark is a staff attorney at EFF, working primarily on the FOIA Litigation for Accountable Government (FLAG) Project. His legal interests include the First Amendment, information privacy, and the ways technology can improve how we structure government. He received his law degree from Boalt Hall and his undergraduate degree from Northwestern University. Follow Mark's work at the URL noted above.


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