Activists forced courts to declassify NSA docs, even if U.S. won’t admit it

The EFF won the right to that court opinion that finds evidence of NSA misconduct. So why is the government claiming it's releasing it "in the interest of increased transparency"?


Kevin Collier


Posted on Aug 22, 2013   Updated on Jun 1, 2021, 8:29 am CDT

The Office of the Director of National Intelligence (ODNI) would like you to believe that when it declassified a bunch of court opinions on National Security Agency spying on Wednesday, it did so voluntarily. For transparency. To further the conversation.

What the ODNI doesn’t mention in any of its releases, however, was that it was compelled to do so through legal action started by Internet freedom advocates at the Electronic Frontier Foundation (EFF).

Wednesday’s official government releases include three heavily-redacted opinions from the classified Foreign Intelligence Surveillance Court (FISC), plus six related memos. Those documents largely focus around the FISC monitoring NSA’s spy practices. Specifically, they relate to judging whether the NSA wasn’t illegally, unconstitutionally spying on Americans. (Spoiler alert: sometimes it was, the court found.)

But there’s a reason that the EFF published the exact same court opinion as the first FISC opinion, a few hours before the ODNI did: It had been pestering different courts for that document since 2011.

That’s when the EFF first filed a successful Freedom of Information Act lawsuit against the NSA, following tips that the agency was violating laws that, since FISC opinions are classified, were hidden from the public. But that was just the first step in a two-year process of legal wrangling.

“After we won in the FISC, we went back to [District Court]” Mark Rumold, the staff attorney at the EFF, told the Daily Dot. Eventually, that led to the court issuing an order “requiring them to make declassification decisions by Aug 12,” of this year he said. Finally, the court asked for, and got, an extra week.

That’s not the story put forth by the ODNI. In its official press release, it indicates Wednesday’s release was just a natural step in a general process of U.S. transparency:

In June, President Obama requested that Director of National Intelligence James R. Clapper declassify and make public as much information as possible about certain sensitive NSA programs while being mindful of the need to protect sensitive classified intelligence and national security.

Consistent with this directive and in the interest of increased transparency, DNI Clapper has today authorized the declassification and public release of a number of documents pertaining to the Intelligence Community’s collection. 

At no point does the ODNI make the distinction that it was compelled by the U.S. court system to release that the decision. Similarly, the ODNI’s new Tumblr, which links to those court decisions, makes no reference to the EFF. Instead, it indicates this was all part of a general plan toward making the intelligence world more transparent to Americans:

Announced by President Obama on August 9, 2013 and launched today, August 21st, the goal of IC ON THE RECORD is to provide the public with direct access to factual information related to the lawful foreign surveillance activities carried out by the Intelligence Community.

To the ODNI’s credit, the EFF only had that first FISC opinion, though it’s possible those were released because they indicate the NSA wasn’t always breaking the law. “Those were not part of the request; DNI just chose to release them as part of damage control, I assume,” Rumold said.

The ODNI didn’t immediately respond to the Daily Dot’s request for comment. To be fair, they’re probably pretty swamped.

Illustration by Jason Reed

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*First Published: Aug 22, 2013, 1:18 pm CDT