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The old does-a-tree-falling-in-the-woods-make-a-sound? conundrum has got nothing on the nonprofit online free speech advocate Electronic Frontier Foundation (EFF), which crowed in a press release that it had successfully argued a motion in a Freedom of Information Act (FOIA) action in the super-secret Foreign Intelligence Surveillance Court (FISC) regarding National Security Agency (NSA) surveillance.
What isn't so clear in this hush-hush alphabet soup that purportedly involves the first disclosed victory by a non-government party before the FISC is what exactly EFF has won. It's not easy to brag about the mouthful of the court's decision in In re Motion for Consent to Disclosure of Court Records or in the Alternative a Determination of the Court's Rules on Statutory Access Rights (Docket No. Misc. 13-01).
According to the EFF announcement, FISC said it was ok to disclose publicly a previous FISC opinion that purportedly said facets of NSA snooping under Sec. 702 of the FISA Amendments Act were unconstitutional. The victory, while not Pyrrhic, isn't exactly gratifying either, because FISC didn't actually order the opinion itself to see the light of day. Rather, the court merely ruled that FISC rules in and of themselves do not interfere with the disclosure of an opinion. In other words, according to the EFF, FISC soundly rejected the argument by the Department of Justice (DOJ, if you can stand another acronym) that the Executive Branch's hands are tied by FISC procedural rules when it comes to releasing an opinion.
The court's ruling, along with a motion by the American Civil Liberties Union (ACLU) asking FISC to open the court's interpretation of Section 215 to public view, may be found on the public docket recently created by the FISC.
Given the PRISM and NSA phone call monitoring stories currently dominating the news cycle, you might want to think twice before sharing EFF's giddy celebratory news with your posse online or via cellphone.