June 7, 2013
Government Says Secret Court Opinion on Law Underlying PRISM Program Needs to Stay Secret

In a rare public filing in the secret Foreign Intelligence Surveillance Court (FISC), the Justice Department today urged continued secrecy for a 2011 FISC opinion that found the National Security Agency’s surveillance under the FISA Amendments Act to be unconstitutional. Significantly, the surveillance at issue was carried out under the same controversial legal authority that underlies the NSA’s recently-revealed PRISM program.

EFF filed a suit under the Freedom of Information Act in August 2012, seeking disclosure of the FISC ruling. Sens. Ron Wyden and Mark Udall revealed the existence of the opinion, which found that collection activities under FISA Section 702 “circumvented the spirit of the law” and violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. But, at the time, the Senators were not permitted to discuss the details publicly. Section 702 has taken on new importance this week, as it appears to form the basis for the extensive PRISM surveillance program reported recently in the Guardian and the Washington Post.

A song by Jim Croce comes to mind here.