ACLU files lawsuit to uncover possible FISA surveillance abuses

The ACLU is suing the intelligence community in an attempt to potentially expose abuses of a warrantless surveillance program, just as Congress debates its existence.

Driving the news: The ACLU filed a complaint Friday, a copy of which was shared first with Axios, in the U.S. District Court for the Southern District of New York against the NSA, CIA, the DOJ and the Office of the Director of National Intelligence to compel the release of records related to surveillance.

• In December, the ACLU filed a records request for recent opinions from the Foreign Intelligence Surveillance Court “that address novel or significant issues” in the government’s surveillance programs. The ACLU complaint alleges that no relevant agencies have produced a response to the request.
• The request and the complaint aim to probe Section 702 of the Foreign Intelligence Surveillance Act, which expires at the end of the year.

Zoom out: The Section 702 program allows intelligence agencies to conduct warrantless surveillance of non-U.S. citizens abroad. The Foreign Intelligence Surveillance Court annually reviews whether it is still operating legally.

• But in 2021, the court "took the unusual step of extending its review" to study non-disclosed issues raised by the surveillance program, according to the ACLU's complaint.
• By law, the intelligence community and the Department of Justice are required to review, for possible release, any new opinions from the FISA court that include any “novel or significant” issues. But they have yet to release the opinions that resulted from the FISA court’s 2021 review.

Why it matters: The yet-to-be-published FISA court opinion could sway lawmakers, administration officials and privacy advocates as they prepare for a contentious, ongoing debate over whether to renew Section 702.

What they're saying: “These opinions are essential to an informed public debate, and the government should release them immediately," said Patrick Toomey, deputy project director for the ACLU's national security project, in a statement to Axios.

• "Section 702 has morphed into a domestic surveillance tool for the FBI," he added. "Before Congress votes on reauthorizing this law, Americans should know how the government wants to use these sweeping spying powers.”

Yes, but: While the ACLU is hoping the district court can expedite the release of what this FISA court opinion, it is possible government officials will heavily redacted the opinion ahead of any forced publication.

Catch up quick: Intelligence officials are already preparing for a drawn-out fight to keep Section 702 intact.

• Gen. Paul Nakasone, leader of the National Security Agency and U.S. Cyber Command, argued last month that Section 702 has allow the U.S. to stop active terrorist plots, foreign ransomware attacks and planned cyber espionage schemes.

State of play: Little is known publicly about how the intelligence community relies on Section 702 given the classified nature of their work.

• Efforts to disclose more information to the public about both potential Section 702 victories and abuses will be central to intelligence officials' and advocates' arguments.

The intrigue: Civil liberties and privacy advocates, progressive Democrats and conservative Republicans are likely to express concerns about Section 702's ability to inadvertently sweep up Americans' electronic communications — which are later stored in a database that any intelligence agency can search through.

• The Office of the Director of National Intelligence disclosed in an annual report in April that the FBI conducted as many as 3.4 million searches of Americans' data in 2021 that was previously collected through 702.

What's next: The government will have 30 days to respond in court to the ACLU's complaint.

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Editor’s note: This story has been corrected to state that the intelligence community and the Department of Justice are required by law to review for possible release any new opinions from the FISA court that include any “novel or significant” issues. (Not the FISA court itself.) It has also been clarified to say that the ACLU aims to compel the release of surveillance records, more than just expedite the process.