The US Government responded yesterday to the FISC’s order to conduct a declassification review in the Yahoo case. Their response asks for 45 and 60 days to complete the full review. They cite the need for interagency coordination, the volume and type of materials, and multiple FOIA requests in support of this request.
In the Microsoft and Google cases, the Government asked for a third extension of its deadline to respond to Microsoft’s motion. Microsoft and Google both consented to the extension.
In other news about the FISA Court, Reggie B. Walton, the presiding judge, responded to Sen. Patrick Leahy’s request for more information about the court processes and procedures. On July 18, Sen. Leahy requested this information in preparation for a Senate Judiciary Committee hearing on the implementation of FISA Authorities (scheduled for July 31).
The Electronic Privacy Information Center (EPIC) filed for a writ of mandamus and prohibition in the Supreme Court of the United States yesterday, asking them to vacate the Foreign Intelligence Surveillance Court’s Order requiring production of phone records for domestic customers of Verizon.
In the petition, the questions presented are (1) Whether the FISC exceeded its statutory authority under 50 USC §1861 to authorize foreign surveillance when it ordered Verizon to produce records for wholly domestic communications and (2) Whether EPIC is entitled to relief under 28 USC §1651(a) to vacate the order by the FISC.
28 USC §1651 is known as the All Writs Act, and it authorizes the Supreme Court to issue extraordinary writs in its discretion. EPIC argues that an extraordinary writ is appropriate because (1) the FISC exceeded its statutory authority in granting the order and (2) No other court may grant relief, due to the secretive, ex-parte nature of the FISC orders and opinions.
Back in January, key provisions of FISA – the Foreign Intelligence Surveillance Act – were renewed by Congress. I wrote about the troubling situation of access to FISA Opinions, which is basically non-existent. Up until January, only one opinion had been released by the FISA Court, and only two opinions released by the FISA Court of Review. The FISA Rules of Court allow on the federal government or the FISA Courts themselves to release opinions without a court order.
Well, the Guardian UK got ahold of a recent opinion that compels Verizon to produce the telephony data for millions of domestic customers for the Government. This opinion, which you can read on the Guardian’s site, is marked as top secret and almost certainly was not released by the FISA Court itself. The Guardian only says that it “obtained” the opinion.
Others have tried to get the opinions, using a procedure (detailed in the last blog post) established to declassify opinions that contained “important rulings of law.” A 2012 FOIA Request, however, yielded “no records.”
Access to opinions and codes is of particular interest to the bloggers at Justia. We complain mightily about private citation formats, paywalls to codes and caselaw online, privatization of court services and filings, and the government’s overall failure to provide us with official, free access to the public record. Last week’s news about the reauthorization of the FISA Amendments Act, however, highlights an altogether different problem of access to the law: secret, sealed court opinions from the nation’s Foreign Intelligence Surveillance Act Court. This body of law is not available for free or for purchase. It is sealed and hidden from the American people.
There is plenty of news coverage about the Act, and plenty of opinions online about the threat it poses to the freedom and privacy of Americans and non-Americans here and abroad. I’d like to highlight the problem of access to the output of the FISA Courts, and why we are still in the dark about their decisions – decisions that are legally binding precedent but that we know nothing about.