Gov’t must give up 5 secret surveillance docs for court

[rhoenix]

In a key transparency case, a federal judge has ordered the United States government to hand over four orders and one opinion from the Foreign Intelligence Surveillance Court (FISC) published in secret between 2005 and 2008. US District Judge Yvonne Gonzalez-Rogers will then review those documents in private.

The case, known as Electronic Frontier Foundation v. Department of Justice, hinges on which, if any, documents from the FISC should be made public. The original lawsuit (PDF) dates back to October 2011, when the EFF asked the government to handover “all reports, memoranda, guidance, presentations, legal briefs, e-mails or any other record” pertaining to Section 215 of the PATRIOT Act.

Following the Snowden revelations, we’ve learned that this is the crucial section of US law that governs the routine metadata handover program from Verizon (and presumably other telcos) to the US government. However, EFF v. DOJ case began nearly two years before Snowden.

Since Snowden's information first became public, however, the government has released some documents, and the EFF has narrowed its request to just five FISC orders. In November 2013, documents released by the government showed that some FISC judges sharply criticized the National Security Agency's record of compliance with rules the court had set out for handling its giant database of phone calls and other data. One judge said that the NSA’s “record of compliance with these rules has been poor.”

The EFF and the DOJ faced off in federal court in Oakland, California earlier this month—EFF attorney Mark Rumold asked the judge to review the FISC’s orders, and decide which ones must be released.

The court is now moving in that direction.

As the judge wrote in her Friday order (PDF):

Here, the Court finds that an in camera inspection of the subject documents is warranted. The evidence in the record shows that some documents, previously withheld in the course of this litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably segregable portions of those documents would have been required. Further, the withholding followed an Order from this Court expressing concern that the agency had failed to explain sufficiently why the withheld documents “would be so replete with descriptions of intelligence activities, sources and methods that no portions thereof would contain” reasonably segregable and producible, non-exempt information.

Further, the Court finds that the public’s interest in the documents withheld is significant. The scope and legality of the government’s current surveillance practices of broad swaths of its citizenry is a topic of intense public interest and concern.

The plot thickens.