Court ruling that NSA spying violated 4th Amendment remains secret

EFF sues US to uncover details of court decision on phone and e-mail spying.

by Jon Brodkin - Aug 30, 2012 11:40 pm UTC

Last month, a letter to Congress noted that “on at least one occasion” a secretive US court ruled that National Security Agency surveillance carried out under a 2008 act of Congress violated the Fourth Amendment’s restriction against unreasonable searches and seizures. But the actual ruling remains secret. Decisions handed down by the US’s Foreign Intelligence Surveillance Court (FISC) are classified “because of the sensitive intelligence matters they concern,” the letter from the Office of the National Intelligence Director to Sen. Ron Wyden (D-OR) states.

The explanation wasn’t good enough for the Electronic Frontier Foundation, which filed a Freedom of Information Act (FOIA) request for details on the FISC ruling or rulings. Today, the EFF followed that up with a lawsuit against the Department of Justice in US District Court in Washington, D.C., saying its July 26 FOIA request has not been processed within the 20-day deadline.

Details on a government ruling that the NSA violated the Constitution could help the EFF in its broader fight against warrantless wiretapping authority granted by the Foreign Intelligence Surveillance Amendments Act of 2008. While the FISA amendments in 2008 were designed to aid anti-terrorist operations, the EFF says it "gave the NSA expansive power to spy on Americans' international e-mail and telephone calls." The EFF lawsuit filed today says the FISC ruling or rulings should be made public because it concerns “possible questions about the government’s integrity which affect public confidence.” The lawsuit asks for a decision ordering the DOJ to make the records available immediately.

In an accompanying statement, the EFF said the requested records could also help Congress decide whether to allow the surveillance program to continue. "The surveillance provisions in the FAA [FISA Amendments Act] will sunset at the end of this year unless Congress reauthorizes the law,” the EFF said. “The pending congressional debate on reauthorization makes it all the more critical that the government release this information on the NSA's actions.”