Privacy SOS

Federal court rules in favor of secret law

One of the hallmarks of authoritarian governments is secret law. When subjects don’t know how their government interprets laws shaping state power, it’s easy for officials to do lots of shady things in the dark. That’s especially true with respect to surveillance law—spying is meant to be secret, after all, and more often than not stays that way.

Unfortunately, a federal court in DC has sided with the Obama DOJ on the subject of secret law, ruling that a legal memo describing the FBI’s surveillance powers can remain secret from the public. Back in March 2013, EFF filed suit to obtain the memo in question. Attorney Mark Rumold describes the memo he and his colleagues sought:

The [Office of Legal Counsel] opinion was generated as part of a lengthy Inspector General investigation (PDF) into the FBI's use of unconstitutional National Security Letters, so-called "exigent letters," and other illegal methods of obtaining customer records. The OLC's opinion provides the federal government with the authority to obtain private call-detail records in "certain circumstances," without any legal process or a qualifying emergency, and despite federal laws to the contrary. So far, the DOJ has refused to disclose what those circumstances are, and has even refused to disclose the statute on which the government bases its purported authority.

Now a three-judge panel on the DC Circuit Court of Appeals has ruled against EFF, blocking public disclosure of the legal memo. That means, at least for now, the FBI’s surveillance powers remain shrouded in secrecy.

Troublingly, the judges agreed with government lawyers who argued that OLC memos are exempt from FOIA disclosure because they are ‘deliberative’ documents, not final legal policy. That’s a dangerous road to tread.

In our government, OLC memos form the basis for the FBI’s interpretation of statutes passed by congress. As EFF wrote in their brief: "The opinion is a binding statement of DOJ's authoritative interpretation of federal surveillance law, used within the agency and other components of the Executive Branch 'to ensure that any information gathering procedures comply fully with the law.'"

The public has a right to know what the nation’s most powerful domestic law enforcement agency thinks the law says, particularly when the law concerns invasive, abusive, or even illegal surveillance activity.

The ACLU is also suing the government in a separate OLC FOIA case. Our attorneys want a court to force the DOJ to release location tracking opinions written after the Supreme Court ruling in US v Jones. Right now, we don't know whether the FBI thinks it needs a warrant for various types of location tracking.

Let’s hope the New York federal court doesn't follow the DC Circuit's lead, and instead forces the DOJ to release these memos to the public. Secret law is inherently abusive, and has no place in a democratic society.

© 2021 ACLU of Massachusetts.