The ACLU has identified 23 legal opinions that contain new or significant interpretations of surveillance law — affecting the government’s use of malware, its attempts to compel technology companies to circumvent encryption, and the CIA’s bulk collection of financial records under the Patriot Act — all of which remain secret to this day, despite an ostensible push for greater transparency following Edward Snowden’s disclosures.
The opinions were written by the Foreign Intelligence Surveillance Court. On Wednesday, the ACLU and the Yale Law School Media Freedom Clinic filed a motion with the court requesting that those opinions be released.
“The people of this country can’t hold the government accountable for its surveillance activities unless they know what our laws allow,” said Patrick Toomey, a staff attorney with the ACLU’s National Security Project. “These secret court opinions define the limits of the government’s spying powers. Their disclosure is essential for meaningful public oversight in our democracy.”
Some of the opinions identified by the ACLU offer interpretations of Section 702 of the Foreign Intelligence Surveillance Act, a controversial provision that allows the government to conduct mass surveillance on American’s transnational communications. The authority is set to expire in December of 2017.
Disclosure of the opinions would shed light on how the government understands the boundaries of its spying power. Earlier this month, for example after Reuters reported that Yahoo is secretly scanning every customer’s incoming email, anonymous officials told the New York Times that that action was based on an individualized order from the secret court. Disclosure of the order would offer insight into why the government thinks that is legal. Yahoo, for its part, on Wednesday urged the Director of National Intelligence to release and explain the court order in question.
The ACLU identified the 23 still-secret opinions by combing through press clippings and publicly released opinions. A report released Tuesday by the Brennan Center for Justice, which was based on documents obtained under the Freedom of Information Act similarly found that the government has kept classified 25 to 30 significant court opinions and orders dating from 2003 to 2013.