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EFF sues DOJ for access to secret court orders on decryption

TechCrunch TechCrunch 19/04/2016 Kate Conger

Does the government secretly force companies to decrypt their customers’ messages, build backdoors, or hand over their source code so that law enforcement officials can pick through it for vulnerabilities?

Those are the questions at the center of an Electronic Frontier Foundation lawsuit filed today against the Justice Department. The suit seeks the disclosure of documents that would show whether DOJ has ever secretly forced a company like Google or Apple to provide technical surveillance assistance in the Foreign Intelligence Surveillance Court, a federal court that issues secret surveillance warrants in national security cases and has been criticized for rubber-stamping NSA overreach. EFF requested the documents under the Freedom of Information Act, but has been rebuffed.

Up until a few months ago, the idea of a court ordering a tech company to build special software that would help law enforcement decrypt a customer’s communications might have seemed farfetched. But now, of course, this is a familiar scenario — the FBI recently sought exactly this kind of order in its San Bernardino case against Apple. EFF wants to find out if the government has sought similar court orders, hidden by the secrecy of the FISC.

The FISC claimed in a response to EFF that “no responsive applications” for warrants exist. EFF contends that the court did not throughly search for records in response to its request.

Congress recently attempted to break down some of the FISC’s secrecy by requiring the court to declassify any significant decisions or new interpretations of the law.

  • “Even setting aside the existence of technical assistance orders, there’s no question that other, significant FISC opinions remain hidden from the public. The government’s narrow interpretation of its transparency obligations under USA FREEDOM is inconsistent with the language of the statute and Congress’ intent,’’
  • EFF senior staff attorney Mark Rumold said in a statement regarding the lawsuit. “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.”

You can read EFF’s full lawsuit here.

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