The NSA has refused to release a secret court order issued on Wednesday that could force the US government to reveal how it has obtained the rights to copyrighted material, including the phrase “Intellectual Property Clause.”
The US court issued a secret order on Wednesday, requiring the National Security Agency to produce documents that explain how it can legally access, copy, or otherwise use copyrighted works.
The NSA has so far refused to disclose the order, but said it would comply with the court order “in the best interests of national security.”
The order was issued by a secret judge in Maryland who issued a temporary restraining order on Friday.
The judge said the agency has “not been able to comply with this court order as to this claim.”
However, in a new affidavit filed Tuesday, the government says it will comply with that order “as soon as possible.”
“The government’s request for this temporary restraining to be granted was based on the Government’s claim that the court lacked authority to issue this order because it is a ‘prior art’ order,” the government said.
The government says that “the government has been unable to comply” with the order and it is “not seeking an immediate injunction to prevent the release of these records.”
In an affidavit filed in a Maryland court, the NSA said it has not yet been able “to comply with” the order.
The US government argues that “prior authorization” for the order was not needed.
The court issued the temporary restraining injunction to block the NSA from disclosing information related to its use of “Intelligence Identities Protection Act” (IEP) and related “privacy laws,” and to prevent it from disclosing any material it is legally required to keep secret.
The order does not specifically prohibit the NSA’s use of IEP to access copyrighted works, but it specifically prohibits the NSA “from obtaining or using, or disclosing the information obtained by its use” of IETF “legislation.”
In the affidavit, the Justice Department said it believes “the NSA has used a legal doctrine known as ‘priorable authorization’ to obtain the rights in the Privacy Act and related legislation to circumvent Congress’ authority to restrict the NSA.”
The government contends that “previous use” to obtain “priorable authority” in the IEP “is not sufficient to trigger the requirement that the government disclose any information to a court in order to comply.”
The court order requires the NSA to produce to the judge “a copy of the order,” “the documents referenced in the order” and “a summary of the actions taken to obtain and obtain a copy of any materials sought under the order.”
The judge wrote that “we do not find it necessary to make a detailed finding of the scope of the government’s use,” but said he would “review the Government ‘priors authorization’ for each specific claim in detail” if the government fails to comply.
The document also says the government will provide to the court “the name of the individual whose activities were allegedly involved in obtaining and obtaining a copy, a summary of each claim, and the steps taken to achieve compliance with the claims.”
The NSA did not immediately respond to a request for comment.
In December, the Washington Post reported that the NSA has been using “priors authority” to circumvent privacy laws and obtain information about foreign targets.
The Washington Post’s reporting prompted lawmakers to investigate the NSA and said the NSA was engaging in an “inordinate number of requests for data” from foreign entities.
A US official told the Post that the number of IEGP requests “is growing exponentially” and that the agency “has a very good reason to request access to the data in question.”
The Washington post reported that some of the IETF requests from foreign governments are “inadmissible under FISA,” a surveillance law that is designed to prevent warrantless searches of Americans’ electronic communications.
The report also said that “some of the requests are ‘unlawful searches’ under the Fourth Amendment.”
In December 2017, a top official at the Department of Justice, General Keith Alexander, was quoted by NBC News as saying that the FBI has “probably gotten hundreds” of “foreign intelligence” requests from the agency in the last five years.
He also said the FBI is not allowed to use IEP in cases where it “is absolutely necessary.”
“You’re not allowed under FISA to conduct searches, because there is no warrant,” he said.
“There’s no FISA exception.”