Federal Court Rulings Chip Away At NSA Secrecy

Ever since 9/11 and the passage of the Patriot Act, the federal government has pursued an aggressive set of data collection policies and surveillance practices. Edward Snowden's leaks last year may have raised public awareness of many of these events, but simply being aware of practices doesn't do a thing to stop them. Recent court decisions, however, could be a sign that the wall of secrecy the NSA has constructed to veil its actions is cracking -- with profound long-term implications.

First, earlier this week, the 11th Circuit Court of Appeals ruled in United States v. Davis that cell phone users do have an expectation of privacy and that they do not "reasonably" understand that information about their movements and activities is relayed to a cell tower every waking moment of their lives. This reading of the law is against the language the NSA has relied upon, but links back to a recent Supreme Court case in which the USSC ruled that it was illegal for police to attach a tracking device to a defendant's vehicle for 28 days without a warrant.

The 11th Circuit writes: "Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts. Therefore, while it may be the case that even in light of the Jones opinion , GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy. "

Meanwhile, in a separate case, Judge Yvonne Gonzalez-Rogers has ordered the government to turn over four orders and one opinion from the Federal Intelligence Surveillance Court (FISC).  These documents relate to the case of Electronic Frontier Foundation v. Department of Justice, and are part of a long-running struggle between the EFF and the DOJ to compel the government to release opinions in which the FISC was apparently sharply critical of the NSA's conduct.

The evidence in the record shows that some documents, previously withheld in the course of this litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably segregable portions of those documents would have been required. Further, the withholding followed an Order from this Court expressing concern that the agency had failed to explain sufficiently why the withheld documents “would be so replete with descriptions of intelligence activities, sources and methods that no portions thereof would contain” reasonably segregable and producible, non-exempt information.

Does this mean the NSA's comprehensive surveillance system is doomed to be dismantled? Not hardly. But it is a baby step in the appropriate direction. If the federal judge reviews the documents the government is insisting must be kept secret due to national security and instead decides to make them part of the public record, it could further illustrate that much of what's being hidden from the American people is being hidden to draw a false veneer of effectiveness and capability over fundamentally flawed institutions and poor track records.