A tech advocacy group filed suit against the Justice Department on Tuesday to learn whether a secret court has ever sought to force a company to decrypt data.
The suit, filed by the Electronic Frontier Foundation, seeks to learn whether the Foreign Intelligence Surveillance Court has sought to compel a company such as Apple to surveil customer communications on behalf of the federal government. Unlike other federal legal proceedings, the court’s proceedings are mostly classified.
Recounting other instances of the Justice Department attempting to use the regular court system to compel assistance from Apple to decrypt data, the suit notes, “the FISC also has jurisdiction to consider compelled technical assistance.
“If the government is obtaining FISC orders to force a company to build backdoors or decrypt their users’ communications, the public has a right to know about those secret demands to compromise people’s phones and computers,” EFF staff attorney Nate Cardozo said in a statement.
The suit was filed under Freedom of Information Act laws, following records requests EFF submitted to the Justice Department in October and March. The department claimed it could find only two responsive items, but that it wasn’t obligated to hand them over.
The group is also arguing that the USA Freedom Act, passed last year, compels the court to be more transparent than in the past. Specifically, the law requires the court to declassify opinions that are of “significant or novel” legal consequence. However, federal attorneys have argued that should only apply to opinions passed after the law’s passage, and EFF would appear to be the first group to challenge that interpretation.
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“Even setting aside the existence of technical assistance orders, there’s no question that other, significant FISC opinions remain hidden from the public,” said another EFF staff attorney, Mark Rumold, arguing that the government’s interpretation was inconsistent with the statute and congressional intent. “Congress wanted to bring an end to secret surveillance law, so it required that all significant FISC opinions be declassified and released. Our lawsuit seeks to hold DOJ accountable to the law,” he said.
FISC was established by the Foreign Intelligence Surveillance Act of 1978, and is often used by agencies like the National Security Agency and FBI seeking to obtain court orders outside the view of the public.
