One of the biggest challenges for transparency advocates is that many of the federal government’s surveillance programs are so secret that government officials will not even acknowledge their existence. The Electronic Frontier Foundation (EFF) has been challenging surveillance secrecy for years. In June, EFF staff attorney Mark Rumold spoke with Reason TV’s Zach Weissmueller about the organization’s most recent victory and what’s next in the fight to unmask federal snooping.
Q: The purpose of EFF’s lawsuit against the Department of Justice is to get the details of a ruling against the government by the Foreign Intelligence Surveillance Court [FISC]. When did EFF file this lawsuit, and what are the latest developments in the case?
A: In the run-up to the re-enactment of the FISA [Foreign Intelligence Surveillance Act] Amendments Act in 2012, Sen. Ron Wyden [D- Ore.] pushed the executive branch very hard to declassify three statements. One of them was that the FISC had held that some of the executive branch’s surveillance under the FISA Amendments Act was unconstitutional. Another was that the FISC had held that the surveillance they conducted had violated the spirit of the law. [The Obama administration] made him conclude that the FISC or the executive branch had corrected those problems.
Q: The FISC is the FISA court.
A: It’s the Foreign Intelligence Surveillance Court, a court established by statute that hears government applications to conduct electronic surveillance in national security cases. So with those public statements made, that was the first time that the public knew the government was conducting surveillance that had been determined to be unconstitutional. We filed a Freedom of Information Act request with the executive branch for that opinion. The executive branch came back, said it’s classified. So we sued, because it’s our position, and it’s actually the executive branch’s position too, that they can’t classify information just to conceal violations of the law.
Q: And that’s interesting, because you are saying you wouldn’t even have known that it was being concealed if it wasn’t for Sen. Wyden saying something about it.
A: And Sen. Wyden couldn’t even say anything about it until it was cleared by the executive branch to say it. So Sen. Wyden, I imagine, pushed very hard to have that information disclosed, and thankfully it was, so we filed suit in the U.S. District Court in Washington, D.C., and the government came back with a pretty strange argument. In addition to saying it was classified, their argument was that their hands were tied because of the judiciary. Essentially it was the executive branch trying to point their finger at another branch of government, saying, “Oh, we’d love to disclose this unconstitutional surveillance, but we can’t because of the judiciary.”
Q: The FISC ended up ruling in your favor.
A: I’m not surprised by the FISC’s decision, because the government’s argument was crazy, and I think the FISC was right to reject it and to reject it quickly.
Q: You have to navigate all these layers of secrecy just to get the most basic bit of information. What reforms are needed to alleviate that problem?
A: What the EFF is pushing for is a full, public debate about these surveillance programs, about the scope of the government’s authority. The government has been going about the process in the wrong way. They’ve been doing things behind closed doors.