Here’s how privacy advocates shined light on the NSA’s unconstitutional surveillance

August 22, 2013
Logo for the Electronic Frontier Foundation, the privacy advocates whose FOIA request resulted in Wednesday's disclosure. (Electronic Frontier Foundation)
Logo for the Electronic Frontier Foundation, the privacy advocates whose FOIA request resulted in Wednesday's disclosure. (Electronic Frontier Foundation)

After a legal battle that went on over a year, the federal government was forced to reveal a Foreign Intelligence Surveillance Act Court (FISC) opinion that showed the National Security Agency (NSA) engaged in unconstitutional surveillance practices, including the collection of tens of thousands of Americans' online communications. The Switch talked to Mark Rumold, a staff attorney at the Electronic Frontier Foundation (EFF) who worked on the case, hours after the opinion was released Wednesday night. This interview has been lightly edited for clarity and length. 

Andrea Peterson: How did the Freedom of Information Act lawsuit come about?

Mark Rumold: In the summer of 2011, Congress was set to start debating whether or not the FISA Amendments Act (FFA) should be reauthorized. Senator Ron Wyden (D-Ore.) put a hold on the reauthorization bill in the Senate and in what I can only assume were some back channel negotiations, he got the Director of National Intelligence (DNI) to declassify three statements. One of those statements was that the Foreign Intelligence Surveillance Act Court (FISC) had held that the surveillance conducted under FAA had violated the Fourth Amendment, another was that it had violated the spirit of federal law, and the last was just the DNI throwing something in there for good measure: that the problems the FISC had identified had been fixed and they were no longer engaging in illegal and unconstitutional surveillance.

Senator Wyden got these statements declassified and he released the letter that had those statements in them. Based on that letter, we submitted a FOIA request for the opinion. One of the basic rules about classification is that you can't classify information to conceal illegal conduct. So just from the outset, if we know that a FISC opinion held that what the government was doing was unconstitutional and had violated the FFA, we thought we had a pretty good chance of getting at least part of the opinion.

Can you walk me through the basic timeline and the government's reaction to the FOIA suit?

We filed suit in August 2012 and essentially the government dragged their heels. They dragged their heels for the entire period that the FFA was up for reauthorization and the entire period that the opinion itself could have provided useful information for the public and for Congress to debate whether the FFA should be reauthorized.

Kind of shockingly, during the entire debate they withheld the opinion, they withheld all records. Even though they had represented to the court that they were considering releasing parts of it, they still withheld it. What ended up happening was that while the suit was happening -- while we were waiting for the opinion to be partially released -- Congress reauthorized the FFA Act. They did it on Dec. 28, so in a pretty limited session with limited debate. The president signed it on Dec. 30.

And then on Jan. 3, they released documents to us -- they didn't produce the documents released today obviously --  and it wasn't even a release really. It was the reports from Congress and they were entirely redacted. This has kind of been that attitude that the administration has had.

When you say entirely redacted, are you saying page upon page of redacted information?

It's fair to say it was a joke, what they released to us. And a bad joke at that because what they were withholding was the opinion they released that basically said the NSA has been misleading the FISC and has been collecting purely domestic communications of Americans -- tens of thousands of times. It's information that was intentionally concealed from the public. This wasn't a coincidence, right?


This is a representative example of the documents about the FISC order the government released to EFF earlier in the litigation process. (Electronic Frontier Foundation)

So five days after the law was reauthorized they released these documents to us. After that we waited for the government to file a summary judgment motion outlining the reasons they felt they were justified in withholding this information from us.

When they did that we were pretty surprised by one of their arguments -- indeed it was their primary argument -- that it wasn't the executive branch that was deciding to withhold the opinion, it was the judicial branch. [The executive branch claimed] the FISC itself had placed a restriction on the executive branch that prohibited the executive branch from releasing the documents.

And my understanding is that later on, the FISC itself ruled quite differently?

Yeah, and in fact, the FISC had ruled quite differently earlier. In 2008 the FISC had said that if the public wants access to our opinions they need to go through FOIA. Which is exactly what we were doing. So when we saw the court's response we were fairly surprised and we thought, "Here's an easy way to clear this up -- we'll just go to the FISC and ask for the court's consent to release these opinions and ask the court to weigh in on whether or not it is in fact prohibiting the release of this."

We filed a brief [with the FISC] in May of this year, the government responded, and after the government's response but while the motions were under submission in the FISC, the disclosures started happening. So, that changed the litigation and the amount of classified information the government had acknowledged and was willing to declassify. So based on that, the FISC very quickly ruled in our favor.

I don't actually want to suggest the FISC ruled in our favor because of the disclosures -- I think the FISC would have ruled in our favor regardless, the arguments the government was making were crazy. But the FISC ruled in our favor and it went back to the District Court and there was some jostling originally about how the case would proceed.

The government wanted an open-ended stay in the case so it could decide what to release and when and we argued that, "Look, we're in the most robust debate on surveillance that has occurred in the us since the 1970s and the Church Committee and if FOIA is going to have a role and purpose to play in the United States then it has to be this time that FOIA is applied and that the government has to move quickly and make their decisions quickly.

The court ultimately agreed with us and the court ordered them to make decisions by Aug. 12 about what to release. When that day rolled around the government asked for a nine-day extension so they could do it in what they called "an intelligent manner" and we agreed to that nine-day extension. And today the opinion was finally released.

What has your reaction been to the actual opinion?

There's a lot to process. That's my initial reaction. But I'll say that I'm pleasantly surprised by the amount of information that the administration made available. This was honestly less redacted than I thought it would be -- and I'm happy about that. It means that finally within the executive branch it's starting to resonate that the public is not happy with the type of surveillance that is going on, the public isn't happy with being kept in the dark. And that it's time to come clean with the public about what's going on.

But obviously it shouldn't have taken litigation and a massive leak to make this happen. It should have happened in the first place. That being said, I find the opinion itself pretty troubling for a number of reasons. Not the least of which is the tenor of the opinion is that the FISC has been lied to by the government, the government is misrepresenting the way it's operating it's surveillance programs, and the court knows it. There's a sense in the opinion that the court caught them this time because they were forthright with the court, but that the court wasn't happy at all about the role it was being placed in and the type of candor it was getting from the executive branch.

President Obama has suggested that the surveillance programs were transparent because they received FISC oversight -- it seems like you don't think this order helps that argument?

It's a contradiction in terms to say that a secret court yields transparent oversight. But giving the president the benefit of the doubt, what I imagine that what he meant was that the program receive oversight from all branches of government and that's why in his opinion the surveillance is legitimate.

But yes, I'd say this opinion shows quite to the contrary that the court wasn't particularly happy with the representations that the government was providing to it. The court felt that it had been mislead multiple times in the past, and, that as Judge Walton said the other day in an article in the Post, the court just isn't equipped to handle the type of oversight that it was being charged with doing.

What type of reforms do you think are necessary to give that oversight?

I think it's premature to figure out what reforms we need. We don't know the whole story at this point. Senator Wyden called some of the disclosures that have come out "just the tip of the iceberg." There's so much that is still hidden about these type of surveillance programs and the representations that the government has made to the courts, and the public, and Congress. We need a full investigation before intelligence reforms can be made to these laws.

What will the Electronic Frontier Foundation's next steps be?

We currently have four lawsuits pending, two of which are for more information about the NSA's surveillance programs. We have one that concerns section 215, the provision of FISA that the government was using to collect the calling records of all Americans. And we have this lawsuit, the FISC opinion lawsuit, it remains to be seen if there are more records that are responsive to our request that the government may ultimately produce.

We also have two other lawsuits: One, Jewel v. NSA which has been pending since 2008 which challenges basically what was described in some depth in the Wall Street Journal yesterday -- the NSA's collection of communications information from telecom provider's fiber optic backbone. We're moving forward with that in September. We've also filed a new lawsuit last month called First Unitarian v. NSA and it challenges the domestic collection of call records.

Do you have any final thoughts today?

The one takeaway that I'd like folks to have is that the issues may be complicated, there may be a lot of new information that comes to light on different days and it may be difficult to keep track of, but it's really important that we get this right and we get it right now. People, if they're uncomfortable with the type of surveillance that's going on, with the things that they hear about, they need to speak up and they need to let their elected officials know that this kind of dragnet collection and bulk collection of their communications information just isn't acceptable. It's illegal, it's unconstitutional, and we have to put an end to it now.

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.
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