Government Surveillance Transparency: Preliminary Injunction Edition

Sometimes, you just gotta sue to fight the Feds

Government Surveillance Transparency: Preliminary Injunction Edition

Earlier today, my employer filed a preliminary injunction (as well as my own declaration) in D.C. federal district court to compel the Department of Justice (DoJ) to release the underlying Foreign Intelligence Surveillance Act (FISA) Section 702 database query audits they’ve conducted. These audits need to be surfaced prior to any votes in the House or Senate to reauthorize the Section 702 program.

So you’re probably wondering, “What’s the big deal? Why does this matter?”

It’s about whether or not we can, or even should, trust DoJ, the Federal Bureau of Investigation (FBI), or other federal agency/department claims about their compliance with the Fourth Amendment and related surveillance law as it pertains to the Section 702 program.

First, some quick background.

At present, DoJ’s National Security Division (NSD) is responsible for conducting periodic audits of the number of times FBI personnel log into the database containing the data captured and stored under the FISA Section 702 program. While the 702 program is ostensibly aimed at collecting the communications of non-American actors of intelligence interest, the very structure and operation of the global communications system makes it inevitable that the calls, texts, etc. of Americans are also swept up in 702 collection. And it’s the past pattern and practice of multiple FBI personnel improperly accessing the communications of Americans, as well as the sheer volume of U.S. Person communiations collected and stored under 702, that are the hot topics when it comes to Congress deciding whether to reauthorize 702 or let it die.

To date, the only thing DoJ and the FBI have made public are summaries of the audit findings; the actual audits themselves remain secret. It should go without saying that I don’t believe in the “Just trust us” model of federal agency/department oversight, and hence the effort to force the audits themselves out into the light of day for all to see and judge for themselves whether the 702 program should be renewed or killed.

You can read a related story about all of this here.

As always, thanks for reading the Sentinel. I welcome your feedback and engagement.

Read more