In February 2017, the ACLU filed a Freedom of Information Act request with the U.S. Department of Justice to find out more about the circumstances under which the government thinks it can spy on Americans without providing notice. In June 2017, together with the ACLU of Northern California, we filed a lawsuit to enforce the request in the District Court for the Northern District of California.

In response to our FOIA request, the Justice Department confirmed that, in late 2016, it distributed to federal prosecutors a 31-page memorandum containing a new notice policy — one that affects both criminal and foreign-intelligence wiretaps. The government, however, refused to release any portion of this memorandum, and its policy for notifying Americans about surveillance of their emails and phone calls thus remains secret.

The Justice Department’s refusal to release this memorandum is of particular public concern because of the expanding use of secret electronic searches, including surveillance of Americans’ phone calls and emails under the Foreign Intelligence Surveillance Act (FISA) and the Wiretap Act. Many of these searches are conducted without warrants or individualized court approval under Section 702 of FISA — a controversial spying law scheduled to expire in December. The Justice Department has a track record of failing to inform individuals about Section 702 surveillance as required by law. It is impossible to know whether the government is complying with that obligation today when its controlling policies remain secret.

As Congress debates whether to reauthorize Section 702, information about how the Justice Department interprets its duty to notify individuals is necessary in order for Congress and the public to have an informed debate about these spying programs.

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