U.S. Shutdown Disrupts NSA Transparency Case, Review Groups

Google, Facebook and Yahoo are waging a legal battle over NSA transparency, but DOJ lawyers can't work on the case during the shutdown

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NSA / Reuters

The National Security Agency headquarters in Fort Meade, Md.

The U.S. government shutdown has closed large portions of the federal apparatus and forced hundreds of thousands of workers to stay home. Another consequence of the shutdown? A high-profile legal battle over transparency between the largest Internet companies in the U.S. and the federal government has come to a standstill, because Justice Department lawyers assigned to the case are prohibited from working. Meanwhile, two ostensibly independent government investigations into the National Security Agency’s surveillance programs have also been disrupted.

The five-member Review Group on Intelligence and Communications Technologies, which was set up in the wake of blockbuster revelations supplied by former NSA contractor Edward Snowden, has had its staff furloughed, according to a report in Politico. Another federal oversight group, the Privacy and Civil Liberties Oversight Board, had to postpone a key hearing because “a significant number of witnesses” were unable to appear because of the shutdown, Politico reported.

In the transparency case, Google, Microsoft, Facebook, Yahoo and LinkedIn, have filed briefs with the Foreign Intelligence Surveillance Court (FISC) for permission to disclose statistics about the nature and scope of government requests made under the Foreign Intelligence Surveillance Act (FISA). The Justice Department has formally opposed their request. The tech companies had been facing a deadline of Oct. 21 to respond, but that was before the government shutdown.

(MORETech Titans Poised for Showdown With Justice Department Over NSA)

Earlier this week, in an unusual move, the tech companies and the Justice Department filed a joint motion with the FISC asking for a delay in the case. “Absent an appropriation, Department of Justice attorneys and employees are prohibited from continuing to work, even on a voluntary basis, except in very limited circumstances, including ’emergencies involving the safety of human life or the protection of property,'” according to the brief. During the shutdown, Justice Department lawyers are prohibited from discussing a key request from the tech companies about whether their lawyers can access classified information contained in the government’s brief.

This week, the FISC granted the motion for a delay in the proceedings, as a result of the government shutdown. The court did not specify a new deadline for the tech firms’ response brief. In a separate order, the FISC also directed the government to declassify a FISC court opinion containing “analysis by this Court evaluating the meaning, scope, and/or constitutionality” of Section 215 of the USA PATRIOT Act, one of the statutes that authorizes the NSA surveillance programs. The FISC ordered the government to submit a proposed timetable for completing the declassification review and any proposed redactions within seven days of the shutdown’s conclusion.

The Review Group on Intelligence and Communications Technologies was not required to stop working during the shutdown, but one of its members — former CIA deputy director Michael Morrell — declined to participate. “I simply thought that it was inappropriate for our group to continue working while the vast majority of the men and women of the intelligence community are being forced to remain off the job,” Morell told Politico. “While the work we’re doing is important, it is no more important than — and quite frankly a lot less important — than a lot of the work being left undone by the government shutdown, both in the intelligence community and outside the intelligence community.”

There is no indication that the NSA has ceased conducting surveillance operations as a result of the government shutdown. However, the NSA’s Freedom of Information Act (FOIA) office — which is responsible for responding to requests from journalists and others — has been closed. In a statement posted on its website, the NSA said that requests under FOIA or the Privacy Act, “will not be addressed until the office reopens.”

Correction 10/11: An earlier version of this story linked to a FISC order in the ACLU case (Docket No. Misc. 13-02). The FISC’s order granting a stay of the tech companies’ transparency case can be found here.