Secret Law is Not Law

The Electronic Frontier Foundation's Cindy Cohn is on fire: "Let's be clear: Under international human rights law, secret "law" doesn't even qualify as 'law' at all."

The US Government and agencies like the DEA, NSA, TSA and FBI conduct mass-scale domestic surveillance on the basis of laws whose interpretations are held to be state secrets and matters of national security. From No-Fly lists to the FISA court, the US has adopted the principle that you are not allowed to know the law, but if you break it, you will be punished under it.

The essay commemorates the anniversary of the adoption of the 13 Necessary and Proportionate Principles, a widely supported charter setting out the legitimate basis for law enforcement, surveillance and respect for human rights.

The breadth of the secret law is astonishing. For instance, only after the Snowden revelations did the government first admit its legal theories — that its mass spying relied on outrageous secret interpretations of section 215 of the PATRIOT ACT and section 702 of the FISA Amendments Act — neither of which even mentions mass surveillance much less authorizes it. We also now know about the NSA's domestic telephone records collection and a past program that collected cell location information but we still don't know the NSA's full use of section 215. In fact, on September 2 the government sidestepped questions from the Second Circuit about whether its legal arguments in support of its telephone records collection could also support the mass collection of all credit card or bank records of Americans (hint: it could).

Nor are these secret, often extremely weak interpretations of otherwise public laws the only problem. Sometimes there's no "law" at all. The NSA's foreign collection processes, which are much more extensive than their domestic collections, are only ostensibly justified by an Executive Order, currently Executive Order12333. While E.O. 12333 is public, it's not law at all and it certainly does not mention mass surveillance of millions of innocent people around the world. None of the government's legal interpretations of it are public either. We've now seen evidence that this non-law with secret interpretations is the basis for the NSA's mass surveillance of communications not just in one place, but at nearly every step of their journey: from remote access to computers, to man-in-the-middle attacks on messages in transit, to attacking direct service providers like Google, to tapping into the undersea cables. Yet the legal basis for these unprecedented intrusions into privacy remains opaque.

13 Principles Week of Action: Secret Law is Not Law
[Cindy Cohn/EFF]