Victory: Government Finally Releases Secretive Court Rulings Sought By EFF

More than seven years after Congress mandated it and EFF sued to pry them loose, the government released seven heavily-redacted but previously classified rulings from the Foreign Intelligence Surveillance Court that shed new light on how the secret court interprets key provisions of the laws that authorize mass surveillance.

The Office of the Director of National Intelligence (ODNI) released the redacted versions as required by the USA FREEDOM Act of 2015. More details about the rulings are below. But before diving in, it’s important to understand the significance of the disclosure given the government’s long-standing refusal to make these rulings public. You can also read previously released opinions here.

The government’s concession came after years of pressure, activism, and litigation from EFF and other groups that sought to hold the Executive Branch to the law.

In addition to reforming the country’s mass surveillance programs, USA FREEDOM required the government to release all significant opinions and orders of the FISC and the secret appeals court, the Foreign Intelligence Surveillance Court of Review (FISC-R). EFF fought to include this provision in the law with the hope that the disclosures would finally allow the public, including civil rights and civil liberties groups, as well as legal scholars, to access court rulings that determine people’s rights to be free from surveillance.

Disclosure was essential because after 9/11, the FISC’s role expanded. Congress originally created the FISC to operate as a warrant court, approving government requests for surveillance on individualized foreign targets. But after 2001, on top of continuing to approve individual surveillance requests, the court became a “meta-arbiter” that approved the government’s mass surveillance programs or the procedures used to operate them. Some of the FISC’s ruling authorized programs that illegally scooped up the data of millions of Americans and people outside the United States

When Congress passed USA FREEDOM, we expected that the government would move quickly to release these opinions. Instead, the government resisted transparency. First, the government argued that USA FREEDOM’s transparency mandate did not apply to FISC rulings issued prior to the law’s passage in 2015.

The government’s position defied logic and the clear text of USA FREEDOM. So in 2016, EFF sued under the Freedom of Information Act to force the government to disclose all significant FISC opinions. The government ultimately agreed to search for FISC opinions issued between 2003 and 2015, but continued to take the position that USA FREEDOM did not mandate their release.

EFF’s litigation resulted in the disclosure of more than 70 previously secret FISC rulings, including details of a provider’s Kafka-esque fight against a mass surveillance order, rulings showing that FISC judges have difficulty understanding the government’s surveillance activities and whether they are legal, and that the government misuses individualized FISA surveillance orders.

The government, however, successfully convinced a court that it could keep six FISC opinions entirely secret on the grounds that their disclosure would harm national security. After ODNI released the opinions last week, the government confirmed that six of the seven opinions made public were the ones kept secret in EFF’s lawsuit. The government also said that the seventh opinion released last week should have been disclosed to EFF in response to our suit, meaning it remained secret for years for no reason.

Last week’s disclosure is a major victory for transparency and a vindication of USA FREEDOM. The government’s concession came after years of pressure, activism, and litigation from EFF and other groups that sought to hold the Executive Branch to the law. It should not have taken seven years for the government to disclose these rulings.

Yet there is still more work to be done regarding FISC transparency. Although the government states that the seven opinions represent the last of the court’s historic, significant opinions, we disagree. Because the opinions were issued between 2003 and 2015, there are decades of other FISC rulings that occurred in the years since Congress created the court in 1978. So as Congress debates whether to renew the government’s mass spying powers, it should continue to push for greater FISC transparency going back to the court’s origins.

Digging into the newly released FISC rulings

The seven newly released opinions and orders are heavily redacted, but they reveal new details about the FISC’s resolution of several different legal and technical questions, which often resulted in the court approving new ways for the government to access people’s private data.

Court expands FBI access to personal data obtained under FISA

For example, an October 8, 2008 order expanded the number of FBI officials who could access U.S. person’s data obtained via the government’s surveillance programs—or what EFF calls a backdoor search. The court ultimately approved giving FBI officials within the National Counter Terrorism Center access to FISA materials, but only after going through some mental gymnastics to find that doing so would not run afoul of legal limits designed to limit disclosure of personal information swept up by the surveillance.

The court found that even though the FBI retained the information because it suspected domestic crime, rather than for a foreign intelligence purpose, the additional access didn’t violate FISA’s minimization procedures. This was kosher, according to the court, because the FBI counter terrorism officials had a foreign intelligence purpose, rather than a law enforcement purpose. Of course, the only reason the FBI retained people’s data in the first place was to pursue domestic law enforcement investigations, calling into question the court’s reasoning. But as a practical matter, the court approved broadening the number of people within the FBI who could access people’s data via the FBI’s backdoor searches.

Another set of opinions show the true breadth of a since-sunsetted provision of FISA, known as Section 215, that officials used to conduct the telephone records mass surveillance program.

Opinions show breadth of 215’s misuse

An August 20, 2008 opinion approved the government’s use of other unique phone identifiers, rather than traditional phone numbers, for purposes of its bulk collection of phone call records. The telephone records surveillance program was illegal in multiple respects, as it stretched FISA’s terms beyond meaning and also violated the First and Fourth Amendments by allowing the government to map people’s associations and invaded their privacy. Yet the court in 2008 had little trouble in permitting the government to use unique International Mobile Subscriber Identity (IMSI) numbers for its surveillance.

And in another order (the government redacted the date), the FISC used Section 215 to authorize the government’s ongoing collection of information from a third party on a daily basis. It’s not clear what type of data or third party was subject to the demand, but the order notes in passing that the government had sought similar information from the third party via a National Security Letter (NSL), an administrative subpoena issued by the FBI that is unconstitutional because it can gag recipients from saying anything about the legal demand. Almost comically, the FISC order describes NSLs as “non compulsory,” implying that recipients are free to disregard those FBI demands. That would be news to the many NSL recipients, including EFF clients, who have long fought against NSL gag orders.

Both 215 orders show why the provision was ripe for abuse by the government. It’s one reason why EFF continues to call for further surveillance reforms, even after Congress failed to renew Section 215 in 2020.

Redactions make understanding other opinions difficult

Redactions make understanding the importance of some of the newly released opinions difficult, though two opinions (here and here) appear to be related to another opinion the government released to EFF in 2018 as part of our FOIA litigation. We cannot connect the opinions directly to that earlier release, but as we wrote at the time, those opinions showed how even FISC judges had difficulty getting straight answers from the government about the breadth of its spying.

A March 5, 2010 order involves a nitty-gritty analysis of whether the surveillance sought by the government concerned wire or radio communications, as FISA defines “wire communication” but does not define “radio communication.” The court ordered the government to submit legal briefing as well as detailed technical descriptions about its surveillance to help it resolve the definitional issue.

Finally, the seventh released order (the government redacted the date) appears to be a classic FISA warrant that also included a technical assistance order.