Government Set to Release Declassified FISC Opinions

Written by: Mike Yang

The Department of Justice today is set to release a set of documents detailing previously classified opinions from the secret Foreign Intelligence Surveillance Court regarding government surveillance of U.S. citizens.
The release is the result of a FOIA request and lawsuit filed by the EFF in 2016 and the opinions are directly related to the Section 702 surveillance programs conducted by the NSA and FBI. That section of the Foreign Intelligence Surveillance Act allows the government to collect certain records as part of terrorism and other investigations. Under the USA Freedom Act, the government was required to declassify significant FISC opinions, and the EFF’s suit seeks to have those opinions made public.
“It’s long past time for the government to come clean about how Section 702 operates, and fully understanding the program’s legal underpinnings and the involvement of the FISC, as reflected in these still-secret FISC opinions, is a critical part of that,” Mark Rumold, a senior staff attorney at the EFF, said.
“The public has a fundamental right to know, read, and understand the decisions of the federal courts. That’s true whether the opinions concern national security surveillance or more mundane issues. Secret courts, and secret legal opinions, are fundamentally inconsistent with our democratic system — a point the USA FREEDOM Act recognized and corrected. Hopefully, tomorrow’s disclosures will move us one step closer to closing the chapter in nation’s history on secret surveillance law.”

The Section 702 surveillance program has been at the center of many controversies and political debates since Edward Snowden first revealed its existence publicly several years ago. Under the language of the FISA law, “Section 702 cannot be used to intentionally target any U.S. citizen, or any other U.S. person, or to intentionally target any person known to be in the United States”. However, documents made public in the last couple of years have shown that the Section 702 program has been used to collect records on Americans.

Intelligence officials have told Congress that they will provide an estimate of the number of Americans affected by this program, but in a hearing last week, Director of National Intelligence Dan Coats said that won’t be happening because it’s “infeasible”.