The U.S Federal Bureau of Investigation should make public a legal opinion it used to justify a past telephone records surveillance program because other agencies may still be relying on the document for surveillance justifications, the Electronic Frontier Foundation argued in court Tuesday.
EFF lawyer Mark Rumold asked a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit to order the FBI to disclose a 2010 legal opinion from the U.S. Department of Justice's Office of Legal Counsel, telling the judges that the OLC report amounts to final policy that agencies are required to disclose under open-records law. The EFF filed a Freedom of Information Act request for the OLC opinion in February 2011 and later filed a lawsuit after the DOJ rejected its request.
The FBI telephone surveillance program, which operated from 2003 to 2007, isn't directly related to a controversial U.S. National Security Agency telephone records collection program disclosed by former NSA contractor Edward Snowden earlier this year. However it's possible for other surveillance agencies to use the OLC opinion to justify their surveillance programs going forward, Rumold said after the hearing. It doesn't appear that the OLC limited its opinion to the FBI, he said.
It's important to make the opinion public because it shows "the blossoming of secret surveillance law," he said.
The OLC opinion gives the FBI authority to obtain private call records in some cases without legal process or an emergency, the FBI has said. The agency, facing a DOJ inspector general's investigation into its surveillance practices, requested the OLC opinion in late 2009. The January 2010 DOJ inspector's report found that the FBI was requesting telephone records from employees of three carriers embedded with the agency through a variety of informal methods outside court approval, including telephone calls and Post-it notes.
At Tuesday's court hearing, DOJ lawyer Daniel Tenny argued that the OLC opinion didn't provide final FBI policy, but instead gave the DOJ subagency advice on how to make its own rules. Thus, the OLC opinion was part of an internal deliberation that agencies aren't required to disclose under open-records law, he told the judges.
The FBI can make the argument, "You're telling us we have the ability to do this," he said. "We may choose to do something else."
After the OLC memo, there's no evidence the FBI continued the surveillance, he added,
But Rumold argued that the OLC, in this case, was acting as the voice of Attorney General Eric Holder and there was little additional policy left for the FBI to implement. The OLC was "deciding concrete issues," he said, and those final decisions of agencies are subject to open-records requirements.
The three judges asked pointed questions of both sides but Judges David Sentelle and Harry Edwards seemed at times skeptical of the EFF's argument. "It's all a matter of advice," not a binding decision, Sentelle said.
In order for the EFF to win the case, it may need to prove the FBI adopted the OLC decision as its rules, Edwards added. "It is not necessarily conclusive when OLC does something like this, that it is the law," he said.
But Edwards also questioned Tenny about whether the FBI adopted the OLC's advice in arguing that it supported its past surveillance practices. In some other cases, DOJ legal opinions have had the force of law on agency practices, but in those cases, there was a direct impact on the public, Tenny said.
Edwards said the surveillance programs also have a direct impact on the public. "This is law being applied to the public," he said. "Those who are complaining about what's being done are asking for the justification."
It's important for the OLC decision to be made public so that U.S. residents and lawmakers can better debate U.S. surveillance programs, Rumold said after the hearing.
Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is [email protected]