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.


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.


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.