The Constitution Leaves No Room for Secret Law

There are still many questions to be answered about Yahoo’s secret scanning of all of its customers’ incoming emails under a mysterious government order.

Anonymous officials have revealed that the government used an individualized court order issued by the Foreign Intelligence Surveillance Court (FISC). But that sweeping demand and the legal interpretations it was based on remain secret — and they are only one small part of a much larger collection of hidden rulings on all sorts of government surveillance activities that affect the privacy rights of Americans.

That’s why today, the ACLU — with the help of Yale Law School’s Media Freedom and Information Access Clinic — filed a motion with the FISC asking the court to release all of its opinions containing “novel or significant interpretations” of law issued between 9/11 and the passage of the USA Freedom Act in June 2015.

The USA Freedom Act ended the NSA’s mass phone records collection program, and it also required the government to make significant FISC opinions public. Unfortunately, the government maintains that its obligation to release such opinions does not apply to secret court rulings that predate the USA Freedom Act. More broadly, it has refused to recognize the public’s First Amendment right to examine significant FISC opinions interpreting our surveillance laws.

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.

Based on documents and media reports released in the past few years following the revelations by Edward Snowden, it appears that in addition to authorizing bulk searches of Yahoo emails, the FISC’s secret rulings address a range of novel surveillance 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

(The ACLU has compiled a longer list of undisclosed FISC opinions, which is included with today’s motion.)

This is not the first time we have sought important legal opinions in the FISC. We’ve been fighting for years to gain access to a similar but smaller set of rulings, and we previously won disclosure of a FISC opinion addressing the First Amendment and spying under Section 215 of the Patriot Act.

We are seeking these opinions now because — as the new Yahoo revelations underscore — it simply isn’t possible to understand the government’s claimed authority to conduct surveillance without these judicial rulings. Congress recognized the importance of transparency in the USA Freedom Act when it required that FISC opinions be made public, but the government has refused to accept that the need for transparency extends to the many foundational FISC opinions that predate the law and remain hidden.

It is now time for the FISC to make clear that the Constitution leaves no room for secret law — even in a court that often operates in the shadows.

View comments (10)
Read the Terms of Use


If neither the U.S. Supreme Court nor a president has the constitutional authority to amend the letter & spirit of individual amendments - a FISA Court clearly has never had that authority under the supreme law of the land.


One of biggest threats to humanity is realtime facial recognition technology being used indiscriminately everywhere in secrete with no overcite . You get some creep watching you all the time , , ,eventually they see something "they think "wrong is going on with you.


Elkins v FAA, 1:14-CV-00476,-01791 US District Court, District of Columbia FOIA action. Judge James Boasberg, presiding, who he himself is a FISA judge ordered release of records in which the DOJ (FBI) did not want released. The name of the agency record, FBI was denied, yet FAA employee blurted out the name, (transcripts), so much for denial of records. The second case, the US Att. & DOJ filed sealed affidavits under the umbrella of "On Going National Security Investigation" in which his opinion to plaintiff had to be censored before release, but did say their reasoning was "convoluted". Good luck ACLU, the US Government holds a gun to the head of every US Judge (figure of speech) in order to conceal their misconduct at every juncture, which would lead one to believe that de-classification of records is a well wished fantasy even if you can show " A great public interest in release" is warranted.


The ACLU should litigate on behalf of California National Guard soldiers harmed by secret law.

Recruiters for the California National Guard (and other states) mistakenly overpaid enlistment bonuses of $15,000 or more. The soldiers then honored their part of the contract by serving their country.

A federal investigation found out that the recruiters overpaid bonuses, so the U.S. government tried to recoup the money, not from the recruiters (that made the mistake), but the U.S. government went after the soldiers defending the United States.

Many of these brave soldiers were already poor, some having to refinance their homes to repay the bonuses. Apparently there are no government watchdogs with the wherewithal or desire to correct this breach of contract.

By default, the ACLU might be the only organization with the integrity to check & balance the government bureaucracy.

(Source: Associated Press)


Citing Snowden sends a horrible message that a traitor who arrogantly and illegally breaks the law and steals classified documents to post world wide is construed to be on the side of the law. I elect my senators and representatives to use their judgement on protecting the United States and for them to keep the secrets about surveillance which are necessary for our survival. Your assumption that the U.S. can protect itself while responding to paranoid and crazy stands is incorrect. In the past I supported the ACLU but no longer.


It's easy to call Snowden a traitor, as easy as calling George Washington a traitor. As easy as me saying that I doubt you have ever supported the ACLU.

We live is a state where the government is pushing the boundaries of the first amendment as evidenced in the article, from sources such as from Freedom of Information Act disclosure and leaks from the likes of Snowden.

Recent leaks such as that the FBI is actively investigating H Clinton based on a debunked fictional propaganda book is evidence that the government is well off the rails. We need watchdogs such as the ACLU to maintain civilian oversight.


The National Security Agency was collecting METADATA on phone calls, not the phone calls. This means that when the Boston Bombers, the Tsarnaev brothers, killed our citizens within a few days the police could announce that they were not actively connected to a terrorist group. This saved hours of police effort and helped in assessing the danger to Boston. Your efforts have denied this brilliant tool for protecting us from being used by the NSA. Mentioning Snowden as some kind of protector of freedom is terrible. It isn't clear how many of our paid agents in terrible and dangerous countries were tortured and murdered because of Snowden. I strongly disagree with your approach to the issues of protecting our basic rights. We have elected officials and a system for managing our rights relative to the Constitution but the ACLU acts as if it is the only protector of the Constitution, which I think is plainly incorrect.


1: In what way is it okay to collect metadata on American phone calls? It's like saying you aren't spying on someone's car with a GPS because you only collected "The source and destination data", and not the travel. This information gives them exactly when a call was made, who it was made to, how long it lasted, etc. 2: Just because that's what we know about doesn't mean that's all there is. You're arguing from ignorance. Since you did not hear that the NSA was recording the actual content of phone calls, they must therefore not be. Since the FISA court can unilaterally decide what does and does not violate your rights, they solely decide whether or not they can spy on you. See: 3: Police investigators have a litany of different 'tools' at their disposal to acquire the information they needed on both of these terror attacks. A good one that's been used all through American history is called a "warrant," and police should try it! 4: Considering that Edward Snowden released his information to a select set of news reporters, and everything they've released from there has been carefully vetted by those news agencies, I'm going to go with zero paid agents have been tortured and murdered because of Snowden. Then again, I can't prove a negative based on data I haven't been provided, so I'm just going to have to ask you to prove your assertion.


If Edward Snowden caused our paid agents to be tortured and murdered, then how many more did Hilary cause, Mr Anonymus?


Anonymous said: "It isn't clear how many of our paid agents in terrible and dangerous countries were tortured and murdered because of Snowden."

If it isn't clear, Anonymous, you really have no point, do you?

Stay Informed