These will be important in the struggle over what happens with Section 702.
Last night, the Department of Justice produced eighteen previously secret opinions of the Foreign Intelligence Surveillance Court (FISC). The opinions all relate to Section 702, the warrantless surveillance authority scheduled to sunset at the end of the year. The opinions were disclosed as a result of a FOIA lawsuit EFF filed last year.
We’re still working through the documents, but from our review, we know that two opinions relate to a provider challenge to a 702 directive in 2014. The provider challenged the legality of Section 702 surveillance, as well as the government’s refusal to provide it access to other FISC opinions cited in the government’s legal briefs. Although the primary ground for the provider challenge is redacted, the FISC ultimately upheld Section 702, and ordered the provider to comply.
These opinions also provide important context about the operation of Section 702 and the FISC’s oversight. And they show that 702 is a law in need of reform. The opinions show that, almost from the outset of the law in 2008, the intelligence community has overstepped the court-imposed legal restrictions on the operation of the surveillance. Most of the documents tell a story of the IC overstepping boundaries, getting reprimanded by the FISC, but nevertheless being allowed to continue and even expand surveillance under the law.
We expect to have more to say about the documents in the days to follow.