Citing recent FBI efforts to force Apple to provide a software “back door” to its built-in security on iPhones, the Electronic Frontier Foundation has sued to force the Justice Department to disclose its efforts in a top secret court to force companies to provide technical assistance.
The EFF lawsuit filed Monday accuses the U.S. DOJ of violating the Freedom of Information Act for alleged wrongful withholding of agency records related to applications to the Foreign Intelligence Surveillance Court (FISC) for orders that would help the government unravel encrypted communications.
EFF complains that the FISC has expanded its role since its creation in the 1970s when it focused on granting government applications to conduct surveillance on particular targets. Today FISC is increasingly asked to decide the legality and constitutionality of entire programs of government surveillance, the suit alleges.
Vast bodies of legal opinion on novel constitutional law were increasingly decided in secret by FISC after the terror attacks of September 11, 2001, the suit states. In June 2015, a reform law, the USA FREEDOM ACT, was passed to require public disclosure through declassification of significant FISC decisions and appeals to the FISC review court.
In October 2015, EFF petitioned the DOJ under the FOIA for any applications to FISC for technical assistance and any written opinions or orders by the court in response.
The government has denied those requests, saying if found only two items that might come under terms of the request and that it decided both were exempt from disclosure.
EFF continued to challenge the denial, including the suit filed Monday, saying the DOJ not only violated the FOIA by withholding the material but also did not conduct a thorough enough search.
The suit seeks immediate release of the records requested.
Case: EFF v. U.S. DOJ, No. 16-cv-2041
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