EFF Victory Results in Release of Secret Court Opinion Finding NSA Surveillance Unconstitutional

Posted: August 22, 2013 by tallbloke in Accountability, FOI, government, Legal, Philosophy, Politics

Well done Electronic Frontier Foundation. Cyber-bullies like the NSA need to be told to EFF off.


In response to EFF’s FOIA lawsuit, the government has released the 2011 FISA court opinion ruling some NSA surveillance unconstitutional.

For over a year, EFF has been fighting the government in federal court to force the public release of an 86-page opinion of the secret Foreign Intelligence Surveillance Court (FISC). Issued in October 2011, the secret court’s opinion found that surveillance conducted by the NSA under the FISA Amendments Act was unconstitutional and violated “the spirit of” federal law.

Today, EFF can declare victory: a federal court ordered the government to release records in our litigation, the government has indicated it intends to release the opinion today, and ODNI has called a 3:00 ET press conference to discuss “issues” with FISA Amendments Act surveillance, which we assume will include a discussion of the opinion.

It remains to be seen how much of the opinion the government will actually make available to the public. President Obama has repeatedly said he welcomes a debate on the NSA’s surveillance: disclosing this opinion—and releasing enough of it so that citizens and advocates can intelligently debate the constitutional violation that occurred—is a critical step in ensuring that an informed debate takes place.

Read the rest here

  1. tallbloke says:

    It’s your internet. If you don’t defend it, it’ll soon be their internet.

  2. tallbloke says:


    On Wednesday, the Department of Justice published three declassified documents on a new government website hosted on Tumblr called “IC (Intelligence Community) On The Record.”

    In a press call that preceded the release of the documents, three senior intelligence officials defended their record. The general counsel of the Office of the Director of National Intelligence, Robert Litt, portrayed the documents as evidence of an intelligence agency working within the rules, and making few mistakes.

    “This is not an egregious overreaching by a greedy agency seeking to spy on Americans,” he said. “It’s an inadvertent collection of a relatively small number of US person communications.”

    At least one of the documents, however, did spend a fair amount of time criticizing the NSA for overreaching and changing its story.

    The longest document is a previously-secret October 2011 document from the Foreign Intelligence Surveillance Act Court (FISC), which shows that the NSA had “frequently and systematically violated” its own oversight requirements. The agency collected as many as 56,000 e-mails and communications by Americans with no connection to terrorism.

    The federal judge authoring the opinion, FISC Judge John Bates, concluded that there is no way to know with certainty how far the government’s intelligence and surveillance capabilities have actually gone. In his 85-page opinion, Bates noted that his court originally approved the NSA’s ability to capture a more limited and targeted amount of data.

    “In conducting its review and granting those approvals, the Court did not take into account NSA’s acquisition of Internet transactions, which now materially and fundamentally alters the statutory and constitutional analysis,” the judge wrote.

  3. hunter says:

    So for approaching three years the Federal Govt. of the US has flagrantly ignored the Constitution and used pretend laws to rationalize this action.
    Impeach, remove from office. vote out of office, imprison and confiscate the assets of and the assets of their families for doing this.
    WE are in charge.
    Buy the way, the irony of finding this out on a British blogsite and having to post this on a British blogsite does not escape me, and only makes me more angry. Where are the )(*&%^!!%^&^(*&^^***!#!!$ journalists?
    If Bush had done this, it would be the ONLY news being reported.

  4. NikFromNYC says:

    Republicans are already fully exposed to climate skepticism, including the details. Democrats are not, since they are statist authoritarians and only listen to authority. However, young Democratic privacy hawks such as hang out on Reddit and the BoingBoing.com blog and who overlap with hipsters and entrepreneurs on Kickstarter and the whole “Makers” movement hate Big Brother aspects of government and they also hate Republican anti-science efforts (War on Drugs destruction of neuroscience testing in humans, stem cell funding bans, Creationism) and puritanism. Since most skeptics are more science buffs than political wonks, this means that suddenly with the latest NSA scandals brewing, skeptics have a good chance of finally pulling Democrats in, mostly urban hipsters who are kind of geeky and would thus enjoy having some older seasoned nerds to chat with. They still worship the likes of Bill McKibben and backwards “skepticism” gurus who have never reversed their early bashing of AGW skeptics, so there’s lots of work to do. Even the Wikileaks guys plugged Rand Paul this week though! The Obama lightworker spell has suddenly worn off and that was causes great inertia among young urban voters to even considering skeptical arguments. Now Obama is Nixon!

  5. tallbloke says:

    Nice analysis Nik. I think you are right and that this could bring about an awakening in young U.S. Dems. At its crudest the question is simply “If Obama has been lying about this, what else has he been lying about?” It’s good to have you and Hunter weigh in here, because the UK has all but a news blackout on what the opinion of ordinary folk in the US is concerning their surveillance by the State. Over here, a lot of people shrug and seem to accept it as a necessary evil, and I would guess the same is true over there. In the past the US citizenry has had a strong reputation for the defence of personal liberty though, and I would hope they aren’t so far under the thumb of the state since the introduction of ‘homeland security’ measures that they are too afraid to speak up.

    Many people seem to have taken their eye of the ball because it’s all too uncomfortable to look at. We are sleep-walking into authoriatarianism. WAKE UP!

    Welcome to the self policed parade
    Welcome to the neo-golden age
    Welcome to the days you’ve made

    – Hawkwind – Space Ritual – 1972 –

  6. Joe Public says:

    Cameron’s passive acquiescence of NSA’s harvesting of UK citizens’ data could lead a cynic to wonder what details of his old surfing habits the Americans know about.

  7. tallbloke says:

    Joe, NSA surveillance of UK and European phone calls has been an open secret for a long time:
    Eight miles from my home. When I forget what I said on the phone to someone I just ring Menwith Hill and ask for a replay.

  8. Berényi Péter says:

    Is the existence of a secret court constitutional in the US? Amazing.