The Electronic Frontier Foundation (EFF) announced on its website today that the Justice Department will release hundreds of pages of documents related to the government’s interpretation of Section 215 of the PATRIOT Act, in response to a Freedom of Information Act lawsuit it had filed.
From the EFF’s post, titled Hundreds of Pages of NSA Spying Documents to be Released As Result of EFF Lawsuit:
In a major victory in one of EFF’s Freedom of Information Act (FOIA) lawsuits, the Justice Department conceded yesterday that it will release hundreds of documents, including FISA court opinions, related to the government’s secret interpretation of Section 215 of the Patriot Act, the law the NSA has relied upon for years to mass collect the phone records of millions of innocent Americans.
In a court filing, the Justice Department, responding to a judge’s order, said that they would make public a host of material that will “total hundreds of pages” by next week, including:
[O]rders and opinions of the FISC issued from January 1, 2004, to June 6, 2011, that contain a significant legal interpretation of the government’s authority or use of its authority under Section 215; and responsive “significant documents, procedures, or legal analyses incorporated into FISC opinions or orders and treated as binding by the Department of Justice or the National Security Agency.”
While the government finally released a white paper detailing its expansive (and unconstitutional) interpretation of Section 215 last month, more important FISA court opinions adopting at least part of that interpretation have remained secret. The results of EFF’s FOIA lawsuit will finally lift the veil on the dubious legal underpinnings of NSA’s domestic phone surveillance program.
The EFF says it filed the FOIA lawsuit nearly two years ago, on the tenth anniversary of the enactment of the Patriot Act.
In a previous post at its website describing the purpose of this particular FOIA request, the EFF indicated that it sought records to further clarify what “tangible things” are collected under Section 215.
Several senators have warned that the DOJ is using Section 215 of the PATRIOT Act to support what government attorneys call a “sensitive collection program” that may be targeting large numbers of Americans. Section 215 allows for secret court orders to collect “tangible things” that could be relevant to a government investigation – a far lower threshold and more expansive reach than a warrant based on probable cause. The list of possible “tangible things” the government can obtain is seemingly limitless, and could include everything from driver’s license records to Internet browsing patterns.
EFF’s lawsuit comes after the DOJ failed to respond to a Freedom of Information Act (FOIA) request on the interpretation and use of Section 215. The suit demands records describing the types of “tangible things” that have been collected so far, the legal basis for the “sensitive collection program,” and information on the how many people have been affected by Section 215 orders.
Interestingly, the EFF also notes that for most of the duration of the FOIA lawsuit, the government strongly resisted against disclosing even small details about its interpretation – until the Snowden leaks began.
For most of the duration of the lawsuit, the government fought tooth and nail to keep every page of its interpretations secret, even once arguing it should not even be compelled to release the number of pages that their opinions consisted of. It was not until the start of the release of documents leaked by NSA whistleblower Edward Snowden that the government’s position became untenable and the court ordered the government to begin the declassification review process.
— John Perry Barlow (@JPBarlow) June 9, 2013
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