EFF Wins Battle Over Secret Legal Opinions on Government Spying

February 2, 2015

Department of Justice to Release Analysis of Law Enforcement and Intelligence Agency Access to Census Records

San Francisco - The Electronic Frontier Foundation (EFF) has won its four-year Freedom of Information Act lawsuit over secret legal interpretations of a controversial section of the Patriot Act, including legal analysis of law enforcement and intelligence agency access to census records.

The U.S. Department of Justice today filed a motion to dismiss its appeal of a ruling over legal opinions about Section 215 of the Patriot Act, the controversial provision of law relied on by the NSA to collect the call records of millions of Americans. As a result of the dismissal, the Justice Department will be forced to release a previously undisclosed opinion from the Office of Legal Counsel (OLC) concerning access by law enforcement and intelligence agencies to census data under Section 215.

"The public trusts that information disclosed for the census won't wind up in the hands of law enforcement or intelligence agencies," Staff Attorney Mark Rumold said. "The public has a right to know what the Office of Legal Counsel's conclusions were on this topic, and we're happy to have vindicated that important right."

In October 2011—the 10th anniversary of the signing of USA Patriot Act—EFF sued the Justice Department to gain access to all "secret interpretations" of Section 215. At earlier stages in the litigation, the Justice Department had refused to publicly disclose even the number of documents that were at issue in the case, claiming the information was classified.

In June 2013, the lawsuit took a dramatic turn after The Guardian published an order from the Foreign Intelligence Surveillance Court authorizing the bulk collection of call records data of Verizon customers. That disclosure helped EFF secure the release of hundreds of pages of legal opinions, including multiple opinions of the Foreign Intelligence Surveillance Court excoriating the NSA for disregarding the court's orders.

However, the Justice Department continued to fight for secrecy for the legal opinion over access to census data under Section 215. Last August, a federal district court judge ordered the government to disclose the OLC opinion.

"The Justice Department has made a wise decision in dismissing the appeal," Rumold said. "We filed this suit nearly four years ago to inform the public about the way the government was using Section 215. We're well overdue to have a fully informed, public debate about this provision of law, and hopefully the disclosure of this opinion will help move the public debate forward."

Although the motion for dismissal was filed today, the government has not provided EFF with the opinion. After receiving the document, EFF will also make it available through its website.

For more information on the case visit: https://www.eff.org/foia/section-215-usa-patriot-act

For more information contact:
Mark Rumold
Staff Attorney
Electronic Frontier Foundation
Phone: +1 415 436 9333
Email: mark@eff.org
Website: www.eff.org