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The American Civil Liberties Union (ACLU) has filed a motion to reveal the secret court opinions with “novel or significant interpretations” of surveillance law, in a renewed push for government transparency. The motion, filed Wednesday by the ACLU and Yale Law School’s Media Freedom and Information Access Clinic, asks the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence gathering activities in secret, to release 23 classified decisions it made between 9/11 and the passage of the USA Freedom Act in June 2015. As ACLU National Security Project staff attorney Patrick Toomey explains, the opinions are part of a “much larger collection of hidden rulings on all sorts of government surveillance activities that affect the privacy rights of Americans.” Among them is the court order that the government used to direct Yahoo to secretly scanits users’ emails for “a specific set of characters.” Toomey writes: These court rulings are essential for the public to understand how federal laws are being construed and implemented. They also show how constitutional protections for personal privacy and expressive activities are being enforced by the courts. In other words, access to these opinions is necessary for the public to properly oversee their government.

Although the USA Freedom Act requires the release of novel FISA court opinions on surveillance law, the government maintains that the rule does not apply retroactively—thereby protecting the panel from publishing many of its post-9/11 opinions, which helped create an “unprecedented buildup” of secret surveillance laws. Even after National Security Agency (NSA) whistleblower Edward Snowden revealed the scope of mass surveillance in 2013, sparking widespread outcry, dozens of rulings on spying operations remain hidden from the public eye, which stymies efforts to keep the government accountable, civil liberties advocates say. “These rulings are necessary to inform the public about the scope of the government’s surveillance powers today,” the ACLU’s motion states.

Toomey writes that the rulings helped influence a number of novel spying activities, including: The government’s use of malware, which it calls “Network Investigative Techniques” The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities The government’s use of “cybersignatures” to search through internet communications for evidence of computer intrusions The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA) The government’s warrantless surveillance of Americans under FISA Section 702—a controversial authority scheduled to expire in December 2017 The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act Without these rulings being made public, “it simply isn’t possible to understand the government’s claimed authority to conduct surveillance,” Toomey writes. As he told The Intercept on Wednesday, “The people of this country can’t hold the government accountable for its surveillance activities unless they know what our laws allow. These secret court opinions define the limits of the government’s spying powers. Their disclosure is essential for meaningful public oversight in our democracy.”

EU-U.S. Privacy Shield Program Overview The EU-U.S. Privacy Shield Framework was designed by the U.S. Department of Commerce and European Commission to provide companies on both sides of the Atlantic with a mechanism to comply with EU data protection requirements when transferring personal data from the European Union to the United States in support of transatlantic commerce. On July 12, the European Commission deemed the Privacy Shield Framework adequate to enable data transfers under EU law (see the adequacy determination). The Privacy Shield program, which is administered by the International Trade Administration (ITA) within the U.S. Department of Commerce, enables U.S.-based organizations to join the Privacy Shield Framework in order to benefit from the adequacy determination. To join the Privacy Shield Framework, a U.S.-based organization will be required to self-certify to the Department of Commerce (via this website) and publicly commit to comply with the Framework’s requirements. While joining the Privacy Shield Framework is voluntary, once an eligible organization makes the public commitment to comply with the Framework’s requirements, the commitment will become enforceable under U.S. law. All organizations interested in joining the Privacy Shield Framework should review its requirements in their entirety. To assist in that effort, Commerce’s Privacy Shield Team has compiled resources and addressed frequently asked questions below. ResourcesKey New Requirements for Participating Organizations How to Join the Privacy ShieldPrivacy Policy FAQs Frequently Asked Questions

In our society, the rule of law sets limits on what government can and cannot do, no matter how important its goals. To give a simple example, even when chasing a fleeing murder suspect, the police have a duty not to endanger bystanders. The government should pay the same care to our safety in pursuing threats online, but right now we don’t have clear, enforceable rules for government activities like hacking and "digital sabotage." And this is no abstract question—these actions increasingly endanger everyone’s security

The problem became especially clear this year during the San Bernardino case, involving the FBI’s demand that Apple rewrite its iOS operating system to defeat security features on a locked iPhone. Ultimately the FBI exploited an existing vulnerability in iOS and accessed the contents of the phone with the help of an "outside party." Then, with no public process or discussion of the tradeoffs involved, the government refused to tell Apple about the flaw. Despite the obvious fact that the security of the computers and networks we all use is both collective and interwoven—other iPhones used by millions of innocent people presumably have the same vulnerability—the government chose to withhold information Apple could have used to improve the security of its phones. Other examples include intelligence activities like Stuxnet and Bullrun, and law enforcement investigations like the FBI’s mass use of malware against Tor users engaged in criminal behavior. These activities are often disproportionate to stopping legitimate threats, resulting in unpatched software for millions of innocent users, overbroad surveillance, and other collateral effects.  That’s why we’re working on a positive agenda to confront governmental threats to digital security. Put more directly, we’re calling on lawyers, advocates, technologists, and the public to demand a public discussion of whether, when, and how governments can be empowered to break into our computers, phones, and other devices; sabotage and subvert basic security protocols; and stockpile and exploit software flaws and vulnerabilities.  

Smart people in academia and elsewhere have been thinking and writing about these issues for years. But it’s time to take the next step and make clear, public rules that carry the force of law to ensure that the government weighs the tradeoffs and reaches the right decisions. This long post outlines some of the things that can be done. It frames the issue, then describes some of the key areas where EFF is already pursuing this agenda—in particular formalizing the rules for disclosing vulnerabilities and setting out narrow limits for the use of government malware. Finally it lays out where we think the debate should go from here.   

While the Justice Department wages a public fight with Apple over access to a locked iPhone, government officials are privately debating how to resolve a prolonged standoff with another technology company, WhatsApp, over access to its popular instant messaging application, officials and others involved in the case said. No decision has been made, but a court fight with WhatsApp, the world’s largest mobile messaging service, would open a new front in the Obama administration’s dispute with Silicon Valley over encryption, security and privacy.WhatsApp, which is owned by Facebook, allows customers to send messages and make phone calls over the Internet. In the last year, the company has been adding encryption to those conversations, making it impossible for the Justice Department to read or eavesdrop, even with a judge’s wiretap order.

As recently as this past week, officials said, the Justice Department was discussing how to proceed in a continuing criminal investigation in which a federal judge had approved a wiretap, but investigators were stymied by WhatsApp’s encryption.The Justice Department and WhatsApp declined to comment. The government officials and others who discussed the dispute did so on condition of anonymity because the wiretap order and all the information associated with it were under seal. The nature of the case was not clear, except that officials said it was not a terrorism investigation. The location of the investigation was also unclear.

To understand the battle lines, consider this imperfect analogy from the predigital world: If the Apple dispute is akin to whether the F.B.I. can unlock your front door and search your house, the issue with WhatsApp is whether it can listen to your phone calls. In the era of encryption, neither question has a clear answer.Some investigators view the WhatsApp issue as even more significant than the one over locked phones because it goes to the heart of the future of wiretapping. They say the Justice Department should ask a judge to force WhatsApp to help the government get information that has been encrypted. Others are reluctant to escalate the dispute, particularly with senators saying they will soon introduce legislation to help the government get data in a format it can read.