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Government must declassify court opinions on phone surveillance after ACLU legal victory

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The US FISA Court has ordered the government to declassify some aspects of its phone and internet surveillance program, the most recent of several disclosures in the past month. In the wake of leaks over the summer, the ACLU and many others have filed suit against the US government, looking for everything from more transparency to a way to take down a powerful surveillance program. The latter goal is still far from fruition, but the ACLU and Yahoo have both made progress in the former with a pair of recent court decisions.

Most notably, the court says that there's no reason to keep some of its opinions under lock and key. In a brief filed today, it agreed to the ACLU's request for years' worth of court opinions regarding Section 215 of the FISA Amendments Act, which authorizes the NSA to collect phone metadata in bulk. While the White House has asserted that it was planning privacy reform even before Edward Snowden's leaks, the FISA court said these leaks have made transparency more important. "The unauthorized disclosure in June 2013 of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate," it wrote, referencing the leak of a Verizon court order. "Publication of FISC opinions relating to this provision would contribute to an informed debate."

"Publication of FISC opinions relating to this provision would contribute to an informed debate."

That doesn't mean these documents will all be released, nor will they be made public right away. Some opinions are already the subject of Freedom of Information Act (FOIA) requests, which will need to be processed before courts make a call; some of the requested documents were released earlier this week. There's also the ubiquitous process of redaction. In this case, though, that might not produce the pages and pages of black text it sometimes has before. Because the government has already released information about Section 215 and is in the process of an ongoing declassification process, "publication with only limited redactions may now be feasible."

By October 4th, the government must submit an outline of which documents are covered by the FOIA request, with the help of the ACLU where possible. From there, it must provide a timetable for redacting and declassifying the documents. While these documents will presumably deal mostly with legal interpretations and policy-making under Section 215, director of national intelligence James Clapper has previously agreed to reveal how many people are surveilled under various intelligence programs.

The ruling isn't the only win for those seeking declassification. Yesterday, the US government also responded in a case regarding Yahoo, which has asked for permission to release details of a 2008 court order. While Yahoo has filed suit separately for permission to publish how many data requests it gets each year, the FISA court said back in July that the government must examine the order and declassify a redacted version. Today, the government agreed to do so, saying it would present a redacted version for review before publishing. Unlike the ACLU's requested documents, this order will concern the NSA's internet surveillance program.