Supreme Court Declines to Hear First Amendment Challenge to Secrecy of U.S. Surveillance Court

Court’s Denial Curtails the Public’s First Amendment Right of Access to Foreign Intelligence Surveillance Court Opinions

November 1, 2021 10:30 am

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WASHINGTON — Over the dissent of Justices Gorsuch and Sotomayor, the U.S. Supreme Court today denied the ACLU’s petition for review in ACLU v. United States, which challenged the secrecy of the Foreign Intelligence Surveillance Court’s opinions. The American Civil Liberties Union, the Knight First Amendment Institute at Columbia University, the Media Freedom and Information Access Clinic at Yale Law School, and former Solicitor General Theodore B. Olson filed the petition on behalf of the ACLU, arguing that the First Amendment requires the FISC to make its legal opinions public, with only those redactions necessary to serve compelling government interests.

“By turning away this case, the Supreme Court has failed to bring badly needed transparency to the surveillance court and to rulings that impact millions of Americans. Secret court decisions are corrosive in a democracy, especially when they so often hand the government the power to peer into our digital lives,” said Patrick Toomey, senior staff attorney at the ACLU’s National Security Project. “Our privacy rights rise or fall with the court’s decisions, which increasingly apply outdated laws to the new technologies we rely on every day. These opinions are the law and they should be public, not kept hidden from Americans whose rights hang in the balance.”

Congress created the FISC in 1978 to authorize and oversee electronic surveillance conducted for foreign intelligence purposes. The FISC’s role was originally narrow, but today, as the result of legislative changes and new technology, the court evaluates broad surveillance programs — including programs that involve the mass collection of emails, phone records, and internet browsing data — that can have profound implications for Americans’ privacy, expressive, and associational rights. The Court denied the petition despite the fact that eight former government officials, including John Brennan, James Clapper, and Robert Litt, all of whom served in high-ranking intelligence posts, filed a friend-of-the-court brief urging review of the FISC’s decisions.

The FISC operates behind closed doors and does not customarily publish its decisions. Although Congress required the government to review significant FISC opinions for public release when it passed the USA FREEDOM Act in 2015, that review is conducted solely by executive branch officials, not a court. In addition, the government has refused to apply this requirement to FISC opinions issued prior to June 2015.

“The Supreme Court has left in place a system that makes informed public debate about government surveillance exceedingly difficult,” said Alex Abdo, the Knight Institute’s litigation director. “Without access to the FISC’s opinions, the public cannot evaluate the powers that the government’s surveillance agencies are exercising in its name. The FISC shouldn’t be exempt from the constitutional right of access that applies to other courts. It’s past due for the Court to establish this principle.”

In motions filed over a period of more than a decade, the groups argued that the First Amendment requires the FISC to make its legal opinions public, with only those redactions necessary to serve compelling government interests. The ACLU had asked the Supreme Court to review decisions that the FISC and the Foreign Intelligence Surveillance Court of Review issued in September and November of last year, which held that the courts lack jurisdiction even to consider whether the First Amendment guarantees the public a qualified right of access to the FISC’s opinions. The petition filed with the Court in April explained that disclosure of the FISC’s opinions would “educate the public about government activity that affects individual rights, ensure a more informed public debate about the reach of government surveillance, increase the perceived legitimacy of the FISC and the surveillance it authorizes, and allow other courts to engage with the FISC’s rulings, to the benefit of those courts as well as the FISC.”

“It’s disappointing that the Court failed to take this opportunity to consider the public’s right to access the FISC’s legal opinions. The surveillance court often issues decisions that have far-reaching implications for Americans’ rights,” said Theodore B. Olson, who served as Solicitor General under President George W. Bush and is now a member of the Knight Institute’s board. “It’s crucial to the legitimacy of the foreign intelligence system, and to the democratic process, that the public have access to the court’s significant opinions. Whether the court’s opinions are published should not be up to the executive branch alone to decide.”

In addition to the former senior government officials noted above, former magistrate judges, media organizations, and Microsoft filed friend-of-the-court briefs earlier this year urging the Supreme Court to hear the case.

Read Justices Gorsuch and Sotomayor’s dissent here:

Read more about this case here:

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