The U.S. doesn’t have to disclose the telecommunications companies helping it collect phone call records or turn over a secret surveillance court’s orders, a federal judge ruled, saying the information would reveal methods used in terrorism investigations.
The Electronic Frontier Foundation, a San Francisco-based civil liberties advocacy group, sued under the Freedom of Information Act for access to information on the government phone record collection program. The group argued the government confirmed the participation of telecommunications companies in the National Security Agency’s surveillance program after the existence of the program was leaked.
NSA surveillance programs, disclosed by former security contractor Edward Snowden, are being challenged in a number of lawsuits. EFF’s lawsuit, which preceded the Snowden leaks, was filed on the 10th anniversary of the signing of the Patriot Act, passed after the Sept. 11 terrorist attacks.
The collection of information relevant to a federal investigation, when authorized by a secret court, is allowed under a statute in the act. The EFF freedom of information lawsuit sought secret court orders from 2005, 2006 and 2008 to learn more about what the government was collecting and the legal justification for it.
The lawsuit led to the disclosure last year of previously secret court documents saying the NSA violated restrictions on surveillance of U.S. phone records and misled judges on how the data were used.
Snowden, who was granted asylum in Russia, revealed a classified legal order compelling Verizon Communications Inc. (VZ) to turn over the phone records of millions of customers to the NSA. An official on a White House advisory panel disclosed this year that under a telephone record collection program, companies such as Verizon, Sprint Corp. and AT&T Inc. are required to turn over information to the NSA, EFF said in court filings, citing a video and article about the discussion.
U.S. District Judge Yvonne Gonzalez Rogers in Oakland, California, today said declassification of general information about the call-record collection program didn’t justify forcing the government to reveal the companies’ names to EFF. Disclosing orders of the Washington-based Foreign Intelligence Surveillance Court could provide a road map for targets to evade surveillance, she said in her ruling.
Rogers said the government had improperly withheld from EFF a memo from the Office of Legal Counsel providing legal advice to the Commerce Department about whether it can disclose confidential census information to intelligence agencies.
Telecommunication companies were granted immunity by Congress in 2008 from privacy lawsuits over surveillance programs.
“This lawsuit has already been successful. Because of it hundreds of pages of FISC opinions have been made public,” said Mark Rumold, an EFF attorney. “The court was not feeling empowered to override government secrecy.”
EFF will study the ruling and decide later whether to appeal, he said by phone
The case is Electronic Frontier Foundation v. Department of Justice, 11-5221, U.S. District Court, Northern District of California (Oakland)