Follow Us

We use cookies to provide you with a better experience. If you continue to use this site, we'll assume you're happy with this. Alternatively, click here to find out how to manage these cookies

hide cookie message

EFF: FBI should release surveillance justification document

The digital rights group asks an appeals court to force the release of a surveillance legal opinion

Article comments

The U.S Federal Bureau of Investigation should make public a legal opinion it used to justify a past telephone records surveillance program because other agencies may still be relying on the document for surveillance justifications, the Electronic Frontier Foundation argued in court Tuesday.

EFF lawyer Mark Rumold asked a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit to order the FBI to disclose a 2010 legal opinion from the U.S. Department of Justice's Office of Legal Counsel, telling the judges that the OLC report amounts to final policy that agencies are required to disclose under open-records law. The EFF filed a Freedom of Information Act request for the OLC opinion in February 2011 and later filed a lawsuit after the DOJ rejected its request.

The FBI telephone surveillance program, which operated from 2003 to 2007, isn't directly related to a controversial U.S. National Security Agency telephone records collection program disclosed by former NSA contractor Edward Snowden earlier this year. However it's possible for other surveillance agencies to use the OLC opinion to justify their surveillance programs going forward, Rumold said after the hearing. It doesn't appear that the OLC limited its opinion to the FBI, he said.

It's important to make the opinion public because it shows "the blossoming of secret surveillance law," he said.

The OLC opinion gives the FBI authority to obtain private call records in some cases without legal process or an emergency, the FBI has said. The agency, facing a DOJ inspector general's investigation into its surveillance practices, requested the OLC opinion in late 2009. The January 2010 DOJ inspector's report found that the FBI was requesting telephone records from employees of three carriers embedded with the agency through a variety of informal methods outside court approval, including telephone calls and Post-it notes.

At Tuesday's court hearing, DOJ lawyer Daniel Tenny argued that the OLC opinion didn't provide final FBI policy, but instead gave the DOJ subagency advice on how to make its own rules. Thus, the OLC opinion was part of an internal deliberation that agencies aren't required to disclose under open-records law, he told the judges.

The FBI can make the argument, "You're telling us we have the ability to do this," he said. "We may choose to do something else."

After the OLC memo, there's no evidence the FBI continued the surveillance, he added,

But Rumold argued that the OLC, in this case, was acting as the voice of Attorney General Eric Holder and there was little additional policy left for the FBI to implement. The OLC was "deciding concrete issues," he said, and those final decisions of agencies are subject to open-records requirements.

The three judges asked pointed questions of both sides but Judges David Sentelle and Harry Edwards seemed at times skeptical of the EFF's argument. "It's all a matter of advice," not a binding decision, Sentelle said.

In order for the EFF to win the case, it may need to prove the FBI adopted the OLC decision as its rules, Edwards added. "It is not necessarily conclusive when OLC does something like this, that it is the law," he said.

But Edwards also questioned Tenny about whether the FBI adopted the OLC's advice in arguing that it supported its past surveillance practices. In some other cases, DOJ legal opinions have had the force of law on agency practices, but in those cases, there was a direct impact on the public, Tenny said.

Edwards said the surveillance programs also have a direct impact on the public. "This is law being applied to the public," he said. "Those who are complaining about what's being done are asking for the justification."

It's important for the OLC decision to be made public so that U.S. residents and lawmakers can better debate U.S. surveillance programs, Rumold said after the hearing.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.



Share:

More from Techworld

More relevant IT news

Comments

gezzerx said: Just more PR amp propaganda censorship amp coverup by the Government that will continue its smear campaign against Mr Snowden by using the following tactics as quoted by Joseph Goebbels during the 1930s amp 1940sIf you tell a lie big enough and keep repeating it people will eventually come to believe it The lie can be maintained only for such time as the State can shield the people from the political economic andor military consequences of the lie It thus becomes vitally important for the State to use all of its powers to repress dissent for the truth is the mortal enemy of the lie and thus by extension the truth is the greatest enemy of the State ANDThe most brilliant propagandist technique will yield no success unless one fundamental principle is borne in mind constantly - it must confine itself to a few points and repeat them over and overThe US amp UK Governments no longer have any credibility They make statements but never provide proof Trust us I think NOT Dont trust but verify amp demand evidence of proof Until they do so its just more lies excuses rationalizations amp justifications REMEMBER POLITICIANS BUREAUCRATS AND DIAPERS SHOULD BECHANGED OFTEN AND FOR THE SAME REASONLooks like Hitler won the the battle of Briton from the inside with help from its American allies He that is good for making excuses is seldom good for anything elseBenjamin FranklinExperience hath shewn that even under the best forms of government those entrusted with power have in time and by slow operations perverted it into tyrannyThomas JeffersonLiberty may be endangered by the abuse of liberty but also by the abuse of powerJames MadisonThe liberties of a people never were nor ever will be secure when the transactions of their rulers may be concealed from themPatrick Henry



Send to a friend

Email this article to a friend or colleague:

PLEASE NOTE: Your name is used only to let the recipient know who sent the story, and in case of transmission error. Both your name and the recipient's name and address will not be used for any other purpose.

Techworld White Papers

Choose – and Choose Wisely – the Right MSP for Your SMB

End users need a technology partner that provides transparency, enables productivity, delivers...

Download Whitepaper

10 Effective Habits of Indispensable IT Departments

It’s no secret that responsibilities are growing while budgets continue to shrink. Download this...

Download Whitepaper

Gartner Magic Quadrant for Enterprise Information Archiving

Enterprise information archiving is contributing to organisational needs for e-discovery and...

Download Whitepaper

Advancing the state of virtualised backups

Dell Software’s vRanger is a veteran of the virtualisation specific backup market. It was the...

Download Whitepaper

Techworld UK - Technology - Business

Innovation, productivity, agility and profit

Watch this on demand webinar which explores IT innovation, managed print services and business agility.

Techworld Mobile Site

Access Techworld's content on the move

Get the latest news, product reviews and downloads on your mobile device with Techworld's mobile site.

Find out more...

From Wow to How : Making mobile and cloud work for you

On demand Biztech Briefing - Learn how to effectively deliver mobile work styles and cloud services together.

Watch now...

Site Map

* *