"EFF Takes FOIA Fight Over Secret Wiretaps to the Foreign Intelligence Surveillance Court"

by Sabrina I. Pacifici on May 22, 2013

“Today, EFF filed a motion in a secret court. This secret court isn’t in a developing nation, struggling beneath a dictatorship. It’s not in a country experimenting for the first time with a judiciary and the rule of law. And, as Wired recently noted, it’s “not in Iran or Venezuela, as one might expect.” No, the court is here, in the United States (it’s in Washington, D.C., in fact). It’s called the Foreign Intelligence Surveillance Court (or the FISC), and it reviews the federal government’s applications to conduct surveillance in national security cases. It’s comprised of 11 district court judges from around the country, and its opinions and orders are the law of the United States, like other federal courts. But the FISC is different from typical courts in one fundamental way: almost everything about the FISC is secret. In fact, just being able to publicly say that we filed a motion with the FISC is unusual. Most proceedings are done ex parte (in this context, meaning just with the government and the judge), and any non-governmental parties involved in proceedings are typically forbidden from ever disclosing it. Even when the FISC finds that the government has acted illegally, so far, that illegality has been been kept hidden from public scrutiny and accountability. EFF is trying to change that. We filed a lawsuit under the Freedom of Information Act (FOIA) after the Department of Justice refused to disclose a FISC opinion we requested. The FISC opinion held that the government engaged in surveillance that was unconstitutional and violated the spirit of federal surveillance laws. We only know the opinion exists because Senators, like Ron Wyden and Mark Udall, essentially forced the government to publicly acknowledge its existence.”

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