This article was originally posted in TechDirt.
One of the longest-running lawsuits over NSA surveillance is still no closer to a final decision, but at least we may get to take a look at a few more Section 702 documents. Jewel vs. NSA (filed in 2008) predates the Snowden leaks by five years and, judging by the speed of the government’s responses, will probably hit the 10-year mark before everything is sorted out.
The EFF reports a production order has been handed down by the court, which will hopefully light a fire under the recalcitrant government.
In 2016 the Court had ordered that the plaintiffs could seek discovery. After over a year of government stonewalling, the Court has now ordered the government to comply with a narrowed set of discovery requests by August 9, 2017. The discovery is aimed at whether plaintiffs’ communications were subject to the mass NSA program tapping into the Internet backbone called Upstream. The court also ordered the government to file as much of its responses as possible on the public court docket.
Whether or not most of these documents will make their way into the public eye remains to be seen. But the court’s order [PDF] contains a hypothetical indicating it’s expecting a lot of production.
By 6-2-17: Government counsel to inform the Court if, hypothetically, a career law clerk was granted security clearance, would she be able to view all documents, including those already produced in classified submissions.
The court will still handle some of the discovery behind closed doors, but it’s hoping to keep itself from being buried in paperwork. The order tells the government to move forward with its production in phases. It also asks the plaintiffs to narrow their discovery request “significantly.” By August, the court would like to have this wrapped up and the case moving forward again.
Of course, this order has been delivered to a government that has argued no one has standing to challenge domestic surveillance and one that conveniently interpreted the Section 215 shutdown as permission to destroy evidence. The DOJ will continue to do everything it can to stem the flow of information to the public. It already spent a year ignoring the court’s production order. I’m sure it will find a way to turn two months of discovery obligations into a much longer order — perhaps even long enough to keep more Section 702 info out of the public’s hands until after it obtains the year-end renewal it so badly wants.