By The Electronic Frontier Foundation
The Electronic Frontier Foundation filed a Freedom of Information lawsuit Tuesday against the Justice Department to shed light on whether the government has ever used secret court orders to force technology companies to decrypt their customers’ private communications, a practice that could undermine the safety and security of devices used by millions of people.
The lawsuit argues that the DOJ must disclose if the government has ever sought or obtained an order from the Foreign Intelligence Surveillance Court requiring third parties – like Apple or Google – to provide technical assistance to carry out surveillance.
The suit separately alleges that the agency has failed to turn over other significant FISC opinions that must be declassified as part of surveillance reforms that Congress enacted with the USA FREEDOM Act.
EFF filed its FOIA requests in October and March amid increasing government pressure on technology companies to provide access to customers’ devices and encrypted communications for investigations. Although the FBI has sought orders from public federal courts to create a backdoor to an iPhone, it is unclear to what extent the government has sought or obtained similar orders from the FISC. The FISC operates mostly in secret and grants nearly every government surveillance request it receives.
The FBI’s controversial attempt to force Apple to build a special backdoor to an iPhone after the San Bernardino attacks underscored EFF’s concerns that the government is threatening the security of millions of people who use these devices daily. Many citizens, technologists and companies expressed similar outrage and concern over the FBI’s actions.
Given the public concern regarding government efforts to force private companies to make their customers less secure, EFF wants to know whether similar efforts are happening in secret before the FISC. There is good reason to think so. News outlets have reported that the government has sought FISC orders and opinions requiring companies to turn over source code so that federal agents can find and exploit security vulnerabilities for surveillance purposes.
Whether done in public or in secret, forcing companies to weaken or break encryption or create backdoors to devices undermines the safety and security of millions of people whose laptops and smartphones contain deeply personal, private information, said EFF senior staff attorney Nate Cardozo.
“If the government is obtaining FISC orders to force a company to build backdoors or decrypt their users’ communications, the public has a right to know about those secret demands to compromise people’s phones and computers,” said Cardozo. “The government should not be able to conscript private companies into weakening the security of these devices, particularly via secret court orders.”
In addition to concerns about secret orders for technical assistance, the lawsuit is also necessary to force the government to comply with the USA FREEDOM Act, said EFF senior staff attorney Mark Rumold. Transparency provisions of the law require FISC decisions that contain significant or novel legal interpretations to be declassified and made public. However, the government has argued that USA FREEDOM only applies to significant FISC decisions written after the law was passed.
“Even setting aside the existence of technical assistance orders, there’s no question that other, significant FISC opinions remain hidden from the public. The government’s narrow interpretation of its transparency obligations under USA FREEDOM is inconsistent with the language of the statute and Congress’ intent,” said Rumold. “Congress wanted to bring an end to secret surveillance law, so it required that all significant FISC opinions be declassified and released. Our lawsuit seeks to hold DOJ accountable to the law.”
See the full complaint here.
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See also:
* Court Troubled By Surveillance Excesses At FBI, NSA.
“In a just-released court opinion, a federal court judge overseeing government surveillance programs said he was ‘extremely concerned’ about a series of incidents in which the Federal Bureau of Investigation and National Security Agency deviated from court-approved limits on their snooping activities.
“Foreign Intelligence Surveillance Court Judge Thomas Hogan sharply criticized the two agencies over the episodes, referred to by intelligence gatherers as ‘compliance incidents.’ He also raised concerns that the government had taken years to bring the NSA-related issues to the court’s attention and he said that delay might have run afoul of the government’s duty of candor to the court.”
* U.S. Spy Court Judge Dismissed Privacy Advocate’s Concerns About Data Use.
“An independent lawyer assigned to represent Americans’ privacy interests before the nation’s top-secret spy court failed to persuade a judge to block FBI agents from searching intelligence databases to hunt for evidence of traditional crimes rather than restricting them to national security probes, according to a newly declassified court opinion,” the Los Angeles Times reports.
“The ruling released Tuesday provides one of the first glimpses into how a 2015 bipartisan law aiming at reining in government intelligence-gathering is being implemented at the Foreign Intelligence Surveillance Court, which oversees requests for surveillance warrants from law enforcement agencies involving suspects inside the U.S.
“In the aftermath of domestic surveillance programs exposed by former National Security Agency contractor Edward Snowden, Congress last year passed the USA Freedom Act, which allowed certain information-gathering practices to continue, but created a privacy advocate to represent the public interest.
“The newly released documents also reveal that the FBI is storing encrypted communications it has obtained in intelligence investigations until they can be decrypted and analyzed by specialists.”
* Bill Gates Says U.S. Needs Limits On Covert E-Mail Searches.
“Bill Gates said on Monday that no one was an ‘absolutist’ on either side of the digital privacy debate, but the co-founder of Microsoft said he supports his company’s lawsuit against the U.S. government seeking the freedom to tell customers when federal agencies have sought their data.
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Previously:
* Trying (And Trying) To Get Records From The ‘Most Transparent Administration’ Ever.
* EFF Urges Appeals Court To Allow Wikimedia And Others To Fight NSA Surveillance.
* U.S. Government Reveals Breadth Of Requests For Internet Records.
* What’s The Evidence That Mass Surveillance Works? Not Much.
* Why The Close Collaboration Between The NSA And AT&T Matters.
* First Library To Support Anonymous Internet Browsing Effort Stops After DHS E-Mail.
* EFF Sues For Records About ‘Hemisphere’ Phone Call Collection And Drug Enforcement Program.
* Snowden Documentarian Laura Poitras Sues U.S. Government To Uncover Records After Years Of Airport Detentions And Searches.
* Obama Secretly Expanded NSA Spying To Internet.
* Court: NSA Phone Program Illegal.
* The Chicago Connection To The Hidden Intelligence Breakdowns Behind The Mumbai Attacks.
* Human Rights Watch Sues DEA Over Bulk Collection Of American’s Telephone Records.
* U.S. Secretly Tracked Billions Of Calls For Decades.
* Amnesty International Joins ACLU, Wikimedia In Lawsuit To Stop Mass Surveillance Program.
* Stop Spying On Wikipedia Users.
* EFF Wins Battle Over Secret Legal Opinions On Government Spying.
* The NSA’s “U.S. Corporate Partners.”
* I Fight Surveillance.
* Illegal Spying Below.
* Smith vs. Obama.
* EFF Sues NSA Over FOIA.
* Stand Against Spying.
* The NSA Revelations All In One Chart.
* U.S. Supreme Court Limits Cell Phone Searches.
* EFF To Court: There’s No Doubt The Government Destroyed NSA Spying Evidence.
* House Committee Puts NSA On Notice Over Encryption Standards.
* Which Tech Companies Help Protect You From Government Data Demands?
* Lawsuit Demands DOJ Release More Secret Surveillance Court Rulings.
* Human Rights Organizations To Foreign Ministers: Stop Spying On Us.
* What The Proposed NSA Reforms Wouldn’t Do.
* Technologists Turn On Obama.
* Dear Supreme Court: Set Limits On Cell Phone Searches.
* EFF Fights National Security Letter Demands On Behalf Of Telecom, Internet Company.
* Eighth-Grader Schools The NSA.
* You Know Who Else Collected Metadata? The Stasi.
* Today We Fight Back.
* The Day We Fight Back.
* FAQ: The NSA’s Angry Birds.
* Jon Stewart: The Old Hope-A-Dope.
* Four Blatantly False Claims Obama Has Made About NSA Surveillance.
* EFF To DOJ In Lawsuit: Stop Pretending Information Revealed About NSA Over Last Seven Months Is Still A Secret.
* Judge On NSA Case Cites 9/11 Report, But It Doesn’t Actually Support His Ruling.
* Edward Snowden’s Christmas Message.
* Jon Stewart: Obama Totally Lying About NSA Spying.
* Presidential Panel To NSA: Stop Undermining Encryption.
* The NSA Is Coming To Town.
* 60 Minutes We Can’t Get Back.
* Why Care About The NSA?
* NSA Surveillance Drives Writers To Self-Censor.
* Filed: 22 Firsthand Accounts Of How NSA Surveillance Chilled The Right To Association.
* Claim On ‘Attacks Thwarted’ By NSA Spreads Despite Lack Of Evidence.
* Obama Vs. The World.
* How A Telecom Helped The Government Spy On Me.
* UN Member States Asked To End Unchecked Surveillance.
* Government Standards Agency: Don’t Follow Our Encryption Guidelines Because NSA.
* Five More Organizations Join Lawsuit Against NSA.
* A Scandal Of Historic Proportions.
* Item: NSA Briefing.
* The Case Of The Missing NSA Blog Post.
* The NSA Is Out Of Control.
* Patriot Act Author Joins Lawsuit Against NSA.
* Obama’s Promises Disappear From Web.
* Why NSA Snooping Is A Bigger Deal In Germany.
* Item: Today’s NSA Briefing.
* NSA Briefing: It Just Got Worse (Again).
* Song of the Moment: Party at the NSA.
* It Not Only Can Happen Here, It Is Happening Here.
* What NSA Transparency Looks Like.
* America’s Lying About Spying: Worse Than You Think.
* Obama Continues To Lie His Ass Off About The NSA.
* The Surveillance Reforms Obama Supported Before He Was President.
* America’s Spying: Worse Than You Think.
* Has The U.S. Government Lied About Its Snooping? Let’s Go To The Videotape.
* Who Are We At War With? That’s Classified.
* Six Ways Congress May Reform NSA Snooping.
* NSA Says It Can’t Search Its Own E-Mails.
* Does The NSA Tap That?
* Obama Explains The Difference Between His Spying And Bush’s Spying.
* FAQ: What You Need To Know About The NSA’s Surveillance Programs.
* NSA: Responding To This FOIA Would Help “Our Adversaries”.
* Fact-Check: The NSA And 9/11.
* The NSA’s Black Hole: 5 Things We Still Don’t Know About The Agency’s Snooping.
* Defenders Of NSA Surveillance Citing Chicago Case Omit Most Of Mumbai Plotter’s Story.
* Obama’s War On Truth And Transparency.
* ProPublica’s Guide To The Best Stories On The Growing Surveillance State.
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See also:
* Jimmy Carter: America’s Shameful Human Rights Record.
* James Goodale: Only Nixon Harmed A Free Press More.
* Daniel Ellsberg: Obama Has Committed Impeachable Offenses.
* Paul Steiger: Why Reporters In The U.S. Now Need Protection.
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Comments welcome.
Posted on April 20, 2016