The ACLU has filed three motions in the Foreign Intelligence Surveillance Court (FISC) asking it to release secret opinions authorizing the surveillance of Americans. The public has a right to see the legal decisions addressing novel surveillance programs that affect our privacy and free speech rights — but many of the FISC’s opinions remained closely guarded secrets. After the FISC and its appeals court rejected the ACLU’s public access arguments in a series of rulings, the ACLU asked the Supreme Court to review those rulings and to recognize that the public has a First Amendment right of access to the FISC’s opinions.
We filed our first motion with the FISC in June 2013, after The Guardian disclosed a secret FISC order — issued under Section 215 of the Patriot Act — authorizing the bulk collection of Americans’ call records. The disclosure was based on documents provided to The Guardian by the whistleblower Edward Snowden. The FISC order compelled a Verizon subsidiary to provide to the NSA call records for every phone call placed on its network during a three-month period. Four days later, we and Yale Law School’s Media Freedom and Information Access (MFIA) 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, belonged to a much larger surveillance program — covering all of the major telephone companies — that had secretly existed for nearly a decade. 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; 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 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). Some of these opinions and orders remain secret, and as a result, Americans still do not know enough about the authority the government has claimed to collect our information en masse.
In October 2016, the ACLU filed a third motion seeking the release of all FISC opinions containing “novel or significant interpretations” of law issued between 9/11 and the passage of the USA Freedom Act in June 2015. These rulings appear to address a range of novel surveillance activities, including:
- The government’s bulk searches of email received by Yahoo! customers
- The government’s use of malware, which it calls “Network Investigative Techniques”
- The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols
- The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities
- The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA)
- The government’s warrantless surveillance of Americans under FISA Section 702 — a controversial authority which was reauthorized in January 2018
In March 2020, the FISC held that because it is a specialized court that deals with issues related to national security, the public has no First Amendment right to view its opinions — even major ones that affect fundamental liberties. Months later, both the FISC and its special court of appeals — the Foreign Intelligence Surveillance Court of Review (FISCR) — adopted an even more extreme position, holding that they lack jurisdiction even to consider First Amendment public access motions like the ones we filed.
On April 19, 2021, we and our co-counsel at the Knight First Amendment Institute at Columbia University, the MFIA clinic, and the law firm Gibson Dunn filed a petition for writ of certiorari in the Supreme Court, challenging these rulings and asking the court to recognize a First Amendment right of public access to the FISC’s opinions—ensuring that the opinions are released with only those redactions necessary to prevent genuine harm to national security.
The USA Freedom Act ended the NSA’s mass call-records program, and it also required the government to make significant FISC opinions public. But unfortunately, the government maintains that its obligation to release such opinions does not apply to secret court rulings that predate the USA Freedom Act. As a result, the ACLU is seeking to vindicate the public’s constitutional right to access these key judicial decisions.
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.
Follow The Case
Supreme Court Petition – Motion for the Release of Opinions Containing Novel or Significant Interpretations of Law – No. 20-1499
Motion for the Release of Opinions Containing Novel or Significant Interpretations of Law – Appeal No. 20-02
Motion for the Release of Opinions Containing Novel or Significant Interpretations of Law No. 16-01
Motion for the Release of Court Records Addressing Bulk Collection – Appeal No. 20-01
Motion for the Release of Court Records Addressing Bulk Collection of Data Under FISA No. 13-08
Motion for the Release of Court Records Interpreting Section 215 of the Patriot Act No. 13-02
- 05/02/2014Plaintiffs' Memorandum of Law in Support of Cross-Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment