Frustrated by a lack of compliance with its Freedom of Information Act (FOIA) requests related to warrantless wiretapping, the Electronic Frontier Foundation (EFF) is suing the government to get the documents released. At issue is a finding by a secret court that the government’s large-scale data collection violates the Fourth Amendment, which protects citizens against unreasonable searches and seizures.

When it was learned that the Bush Administration authorized warrantless wiretaps of international communications in a 2002 presidential order many were outraged. But in 2008, in order to tackle the problem of surveilling international communications Congress decided that it would codify the practice while providing checks and balances to ensure citizens’ privacy wasn’t being unduly harmed. The law took the form of amendments to the Foreign Intelligence Surveillance Act (FISA), and was itself called the FISA Amendments Act of 2008.

On at least one occasion, the FISC found that the data collection constituted an unreasonable search

Part of the Act requires the Attorney General to give Congress "a copy of any decision, order, or opinion" from the Foreign Intelligence Surveillance Court (whose proceedings are classified) "that includes significant construction or interpretation of any provision of [FISA]." One such opinion was alluded to last month, when the Director of National Intelligence sent a letter to Senator Ron Wyden (D-Ore.), saying that on at least one occasion the FISC "held that some collection carried out… was unreasonable under the Fourth Amendment." These classified proceedings are among the documents the EFF is trying to obtain.

In March, Wired reported that the National Security Agency is building a top-secret $2 billion facility in Utah to store US citizens’ communications; a subject explored in the New York Times documentary The Program. The director of the NSA, General Keith Alexander has dismissed allegations that the organization is conducting widespread stockpiling of citizens’ communications, but NSA whistleblower William Binney refutes the director's claims, and accuses him of playing "word games." The FISA Amendments Act is scheduled to expire at the end of this year, but an extension is currently under review by Congress.