Government Says Secret Court Opinion on Law Underlying PRISM Program Needs to Stay SecretMark Rumold and David Sobel In a rare public filing in the secret Foreign Intelligence Surveillance Court (FISC), the Justice Department urged continued secrecy for a 2011 FISC opinion finding government surveillance to be unconstitutional. Significantly, the activities at issue were carried out under the controversial legal authority that underlies the National Security Agencys 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 Amendments 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. The government has sought to block EFFs FOIA suit by arguing that only the FISC, itself, can release the opinion. In an effort to remove that roadblock, EFF filed a motion with the FISC on April 22 seeking the surveillance courts consent to disclosure, should the document be found to be otherwise subject to release under FOIA. In its response filed with the FISC today, the government offers a circular argument, asserting that only the Executive Branch can de-classify the opinion, but that it is somehow prohibited by the FISC rules from doing so. Frankly, its difficult to understand what DOJ is saying. The Government seems to have a knee-jerk inclination towards secrecy, one that often as in this case simply defies logic. The governments bottom line is this: their rules trump the publics statutory rights. But its not the province of the Executive branch to determine which rights citizens get to assert. The events of the past week have demonstrated that the public is angry about the NSAs domestic surveillance program. EFF hoped the public outcry might lead the government to rethink its position in this case (and, notably, DOJ has in two other EFF cases). But, for now, the government is digging in its feet and refusing to budge. But a democracy demands more, and when the government acts unconstitutionally, the public has a fundamental right to know. EFF intends to keep fighting against the governments secret surveillance law. Follow the latest information about privacy legislation at the Electronic Frontier Foundation linkwithin_text=Related Articles: 