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US government sued by activists looking for backdoor smoking gun

EFF sues US DOJ over FISC FOIA, OMG

By Shaun Nichols, 20 Apr 2016

The Electronic Frontier Foundation (EFF) is suing the US government to reveal just how it compels tech companies to help agents spy on people.

The activist group has hit the Department of Justice (DoJ) with a Freedom of Information Act (FOIA) lawsuit in the US Northern California District Court requesting details on whether the department has exploited Foreign Intelligence Surveillance Court (FISC) orders to force American companies to decrypt folks' communications, add backdoors to apps, or disclose un-patched vulnerabilities in code.

The EFF fears the US government has "used secret court orders to force technology companies to decrypt their customers’ private communications, a practice that could undermine the safety and security of devices used by millions of people," adding:

News outlets have reported that the government has sought FISC orders and opinions requiring companies to turn over source code so that federal agents can find and exploit security vulnerabilities for surveillance purposes.

The EFF hopes that by making the case an FOIA suit, it can force the DoJ to disclose records that, by going through the FISC, it had previously been able to keep secret. The group contends that under the USA Freedom Act, those FISC decisions should be declassified and open to the public.

"If the government is obtaining FISC orders to force a company to build backdoors or decrypt their users' communications, the public has a right to know about those secret demands to compromise people's phones and computers," EFF senior staff attorney Nate Cardozo said in announcing the suit.

"The government should not be able to conscript private companies into weakening the security of these devices, particularly via secret court orders."

'Disturbing and disappointing'

The suit comes amid growing pressure on the government over the way it conducts surveillance of electronic communications. Earlier this week, a months-old FISC judge's decision [PDF] was released, showing increasing skepticism towards FBI and NSA surveillance programs.

The decision, handed down by Judge Thomas Hogan, questions the extent to which the FBI and NSA wish to extend their powers to gather and retain communications collected during investigation.

Hogan, in the partially-redacted decision, called for additional reporting requirements on the agencies regarding their collection of surveillance information. The judge also criticized the agencies for failing to adhere to archiving requirements and deleting collected data within the required time frame.

"Perhaps more disturbing and disappointing than the NSA's failure to purge this information for more than four years, was the government's failure to convey to the court explicitly during that time that the NSA was continuing to retain this information."

Hogan did, however, end up granting the two agencies' motion to continue their intelligence-gathering operations. ®

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