The ACLU has filed two motions in the Foreign Intelligence Surveillance Court (FISC) asking it to release secret opinions authorizing the dragnet surveillance of Americans’ data by the National Security Agency. The public has a right to see the legal interpretations justifying the government’s sweeping surveillance of Americans — but the judicial opinions sanctioning that surveillance have remained closely guarded secrets.
In June 2013, The Guardian disclosed a secret FISC order, issued under Section 215 of the Patriot Act, compelling a Verizon subsidiary to give the NSA call details for every phone call placed on its network during a three-month period. Four days later, the ACLU and Yale Law School’s Media Freedom and Information Access clinic filed a motion with the FISC requesting that it publish its opinions on the meaning, scope, and constitutionality of Section 215.
The Verizon call-records order, it emerged, belongs to a much larger surveillance program — covering all of the major telephone companies — that has been in existence for the past seven years. And in the course of the national debate that followed the first disclosure, two things became clear: (1) the phone-records program was not the only bulk-collection surveillance program in which the NSA had engaged (or is perhaps engaging); and (2) the FISC opinions interpreting Section 215 are not the only secret court opinions addressing the lawfulness of bulk surveillance.
In November 2013, the ACLU, the ACLU of the Nation’s Capital, and the MFIA clinic filed a second motion, seeking to uncover the legal underpinnings of the government’s bulk collection of Americans’ data more broadly. The second motion seeks opinions discussing the legal basis for the collection of records of our internet-usage history, location information, and other data or records collected under the Foreign Intelligence Surveillance Act (FISA).
Section 215 allows the director of the FBI to obtain secret court orders from the FISC compelling third parties to produce “any tangible thing” relevant to foreign intelligence or terrorism investigations. The orders are accompanied by a gag order forbidding recipients, like Verizon, from disclosing that they even received a demand for records. Other opinions pertain to additional forms of bulk collection that the government has now acknowledged, such as the bulk collection of internet metadata. But these opinions remain secret, and as a result, Americans know very little about the authority the government has claimed to collect our information en masse.
The public has a First Amendment right to judicial opinions interpreting laws like Section 215 and the rest of the Foreign Intelligence Surveillance Act. We can only have an informed debate about the wisdom and legality of these surveillance programs if we know what our courts have taken the law to mean and why.
In addition to the two motions described here, the ACLU is litigating a Freedom of Information Act lawsuit, filed in October 2011, demanding that the Justice Department release information about the government's use and interpretation of Section 215. (The ACLU’s FOIA request seeks records beyond only FISC opinions about Section 215.) The ACLU has also filed a separate lawsuit challenging the constitutionality of the NSA’s phone records collection program.