Privacy advocates are furious at today’s report in The Guardian that no telcos ever challenged Foreign Intelligence Surveillance (FISA) orders but they miss the point: classifying legal challenges killed companies’ incentive to fight back against the NSA. Why stand up for your users if you can’t even talk about it?
Yes, Yahoo! did back in 2007/8, but how many more companies might have, and might in the future, if the FISA court weren’t such a black box?
That’s why it’s vital that the FISA court declassify enough information about legal challenges to surveillance that the public knows what’s going on, who’s standing up for them, and who’s not. Last week, the FISA Court ordered the NSA to review the court’s interpretations of Section 215 of the Patriot Act. That’s good news but Congress needs to make sure new the basic facts of new legal challenges are declassified promptly in the future – along with many other reforms to the FISA Court and FISA itself.