Surveillance court orders transparency review of its NSA opinions

A U.S. surveillance court has ordered government agencies to review the court’s own opinions related to the legality of a massive telephone records collection program at the National Security Agency in preparation for possible publication of those opinions.

The U.S. Foreign Intelligence Surveillance Court (FISC) on Friday ordered government lawyers and intelligence officials to review the court’s opinions related to the scope and constitutionality of Section 215 of the Patriot Act, the statute that the NSA has cited as its authority for its mass collection of U.S. telephone records in recent years.

At the request of the American Civil Liberties Union and Yale Law School’s Media Freedom and Access Information Clinic, the court ordered the U.S. government to review the court’s opinions for possible declassification, giving lawyers until Oct. 4 to do so.

Despite government objections about the ACLU’s standing in the case, the civil rights group does have an interest in seeing the court decisions, wrote FISC Judge Dennis Saylor.

“The ACLU’s active participation in the legislative and public debates about the proper scope of Section 215 and the advisability of amending that provision is obvious from the public record and not reasonably in dispute,” Saylor wrote. “Nor is it disputed that access to the Section 215 Opinions would assist the ACLU in that debate.”

The ACLU praised the court’s decision. “We are pleased that the surveillance court has recognized the importance of transparency to the ongoing public debate about the NSA’s spying,” Alex Abdo, attorney with the ACLU National Security Project, said in a statement. “For too long, the NSA’s sweeping surveillance of Americans has been shrouded in unjustified secrecy. Today’s ruling is an overdue rebuke of that practice. Secret law has no place in our democracy.”

Representatives of the NSA and the U.S. Office of Director of National Intelligence (ODNI) didn’t immediately respond to a request for comments on Friday’s court order.

Friday’s order doesn’t cover opinions requested by the ACLU through a Freedom of Information Act lawsuit filed in October 2011 in a New York court. The ACLU had requested a wider release of documents in this request to the FISC.

This week, the ODNI released several FISC opinions addressing NSA violations of court-imposed limits on its surveillance programs.

The government has agreed to release more documents in October.

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