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The Electronic Frontier Foundation (EFF) sued government agencies over NSA dragnet surveillance to force transparency about illicit spying. Recently, they published a report about the June 6 hearing on their website. They wanted to tell the public about an incident they called outrageous. It involves the government wanting portions of the hearing transcript removed so that no one outside the courtroom could know about it.
Something to Hide
The hearing was a long one and presiding Judge White wanted both parties to conduct additional briefing. For this, the judge ordered the parties to get transcripts of the hearing about the NSA dragnet. All was well and the hearing ended. Later, the EFF found out that the government tried to secretly ask for certain portions of the transcript to be removed. They claimed that it contained classified information. And they wanted the judge to allow them to remove the said information on the sly. They didn’t want the people to know that they had removed any information.
When the EFF found out what the government has tried to do, they fought strongly to have the request denied. They called the request outrageous because the people have a right to know. It is clear in the First Amendment that the American public must be allowed access to the complete and unadulterated transcript and proceedings. Since most cannot attend the hearing, the transcript would be the only true source of information about the hearing on NSA dragnet surveillance. Federal law protects this right to an accurate transcript. It states that every hearing must be recorded down to the last letter. The transcript must also be verified as true and correct by the court reporter.
The court did not immediately agree to the government’s request. They did allow the government to take a look at the transcript before it was released. Then the government was told that any alterations would be carefully reviewed. The court was not prepared to allow them to make changes that would deceive people by causing ambiguity in the whole. And they would not conceal any revisions or deletions made. After this, the government withdrew their request saying that there was no classified information disclosed during the hearing after all.
Clearly the government has something to hide about NSA dragnet activities. But it is less worried about these things than about people knowing that they are hiding something. Luckily, the court did not allow the government to use classified information as an excuse to secretly edit the constitutionally protected transcript. The EFF has not said anything about this incident that happened a month ago because the court ordered the information sealed. But the transcript, in its original form, was released last week and they are free to tell the story.
Fighting the NSA Dragnet
Jewel versus NSA is a very important battle for the EFF. It was a time sensitive case because many worried that evidence of NSA dragnet surveillance would be deleted before it could be subpoenaed. The June 6 hearing was to make sure that Internet backbone surveillance records of the NSA were kept. These records were vital in supporting the claims of AT&T customers that illicit NSA dragnet surveillance was indeed a reality. On the day of the hearing, the government did not make any comment relating to the fact that the hearing was conducted in an open courtroom filled with people and with many members of the press present, including two local TV stations.
Later, the government contacted Judge White on behalf of the NSA to request that the transcript be held back until they could make some edits. They claimed that their attorney had mistakenly shared some classified information about NSA dragnet surveillance. And they specifically asked that no one be told that they had made this request. Not the plaintiffs or their legal representatives, and not the public, wither.
The judge informed the EFF counsel for the prosecution about the request and they were able to fight it on grounds that it is unconstitutional to hide any portion of the transcript. They also had lots of Supreme Court precedent to support the preservation of unintentionally revealed information. The government request was denied because they could not prove that the information supposedly leaked by their lawyer was for a better cause than the First Amendment.
The government tried to fight this by creating a new rule that allows them to hide items that are unintentionally disclosed. The judge allowed them to check the transcript for classified information before a copy was given to the EFF. But when the judge said that they could not keep any redactions secret, they retracted and said that no classified information was shared. It was just a lame attempt to hide the truth about NSA dragnet surveillance and their other illicit activities, and to hide as well any record of true and just opposition to those illegal activities.