FISC Opinions on the Upstream program

Electronic Frontier Foundation v. Department of Justice, Civ. No. 12-1441-ABJ (D.D.C. filed July 26, 2012).

On July 20, 2012, a government lawyer revealed the existence of a FISC opinion that held that some of the NSA’s surveillance of the contents of communications violated the Fourth Amendment and the spirit of Section 702 of FISA, 50 U.S.C. 1881a. Six days later, the EFF sued under the Freedom of Information Act (“FOIA”) for the release of the opinion.

On August 21, 2013, the government released a redacted version of an October 3, 2011 opinion, 2011 WL 10945618, in which Judge John D. Bates of the FISC partially denied a government request for approval of telephonic and Internet surveillance, stating that the proposed upstream collection of Internet communications was “deficient on statutory and constitutional grounds.” The government also released a FISC opinion issued on November 30, 2011, 2011 WL 10947772, in which Judge Bates found that the amended minimization procedures that the government had adopted in response to the October 2011 opinion satisfied Sec. 702 of FISA and the Fourth Amendment. In addition, the government released a redacted opinion from September 25, 2012, 2012 WL 9189263, in which Judge Bates determined that the remedial measures that the NSA had adopted in regard to its previous overcollection of data “greatly reduce the risk that NSA will run afoul of [the criminal sanctions in 50 U.S.C.] section 1809(a)(2) in its handling of the past upstream acquisitions made under color of section 702.”

Although the government’s release of the three opinions on August 21, 2013 was accompanied by fanfare about its commitment to openness, over two months before the release of the opinions, the FISC had found no impediment to disclosure. Opinion and Order, In re Motion for Consent to Disclosure of Court Records or, in the Alternative, a Determination of the Effect of the Court’s Rules on Statutory Access Rights, Misc. 13-01 (FISC June 12, 2013). See also Joint Status Report, EFF v. Department of Justice, Civ. No.12-1441 (D.D.C. July 1, 2013).


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