November 30, 2021

US: EFF sues for release of data on decryption requests

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Mark Rumold, staff attorney with Electronic Frontier Foundation. HANDOUT.

Mark Rumold, staff attorney with Electronic Frontier Foundation. HANDOUT.

By Cheryl Miller, The Recorder

SACRAMENTO — Digital liberties group Electronic Frontier Foundation sued the U.S. Department of Justice Tuesday for documents that may shed light on how many times—if ever—the federal government has sought a secret court order forcing companies to decrypt consumers’ information.

The Freedom of Information Act complaint, filed in the U.S. District Court for the Northern District of California, also seeks copies of “significant” opinions issued by the Federal Intelligence Surveillance Court since its inception in 1978. That request could help determine the reach of the USA Freedom Act, 2015 legislation that placed new restrictions and transparency requirements on the government’s data-collection practices.

“I’m confident that a court will look at the USA Freedom Act and the intent of Congress in passing that legislation and agree with our requests,” said Mark Rumold, a senior staff attorney for EFF.

A message left with the Department of Justice’s press office was not immediately returned Tuesday.

The lawsuit’s filing coincided with a congressional hearing on encryption in Washington, D.C., where Apple Inc. general counsel Bruce Sewell told lawmakers that a “fundamental disconnect” exists between how tech companies and law enforcement view data and encryption.

“What you’ve heard from our colleagues in law enforcement is the context in which encryption occurs reduces the scope of useful data that they have access to—this ‘going dark’ problem,” Sewell told members of the House Energy and Commerce Committee. Technologists, he said, “see that there’s an abundance of information and this will only increase exponentially as we move into a world where the Internet of Things becomes part of our reality. So you hear from law enforcement that we’re going dark. You hear on the other side that there’s an abundance of information. That circle needs to be squared.”

Although the EFF lawsuit conjures the recent court fight between the FBI and Apple over the encrypted contents of an iPhone that belonged to one of the shooters in the December 2015 mass killings in San Bernardino, EFF’s attempts to access Federal Intelligence Surveillance Court and DOJ documents stretch back to October 2015. That’s when the not-for-profit, following up on media reports about the government trying to obtain private source code, filed a FOIA request with the DOJ’s National Security Division requesting any applications to FISC for court orders seeking “technical assistance” in unlocking data. EFF also asked for related FISC opinions and correspondence among the court, its staff and any third party about requests for decryption help.

In December, the Department of Justice declared that it had uncovered no responsive applications to FISC or court opinions. There were two potentially responsive pieces of correspondence, the DOJ said, but the department declared those documents exempt from public disclosure.

EFF appealed the decision administratively, arguing that the DOJ had interpreted its requests too narrowly. The FOIA denial was upheld. EFF in March filed a second set of FOIA requests seeking a broader range of FISC opinions. Rumold said the DOJ has not responded “substantively” to date.

The DOJ contends that the 2015 USA Freedom Act only applies prospectively to FISC actions, Rumold said, an interpretation that EFF disputes. Unclassified summaries of significant FISC opinions can also be released “in such a way that the public can understand what is happening without disclosing any classified information,” Rumold said.

IMAGE: Mark Rumold, Electronic Frontier Foundation

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