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ACLU v. United States

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  1. Court Access

Court: U.S. Supreme Court

Date Filed: May 27, 2021

Background: The Foreign Intelligence Surveillance Court (FISC), a specialized court created by the Foreign Intelligence Surveillance Act (FISA), oversees the federal government’s foreign surveillance activities. Following passage of the 2015 USA Freedom Act, the director of National Intelligence must conduct a declassification review of FISC opinions containing significant interpretations of law, but earlier decisions are not made public.

Over the past few years, several organizations have sought access to those pre-USA Freedom Act opinions through litigation before the FISC and, subsequently, the FISC’s court of review, known as the FISCR. Ultimately, both surveillance courts determined that they lacked jurisdiction to hear these right-of-access requests, effectively prohibiting members of the press and public from even attempting to seek access to these important judicial decisions.

In April 2021, the American Civil Liberties Union, Knight First Amendment Institute, and Yale Media Freedom and Information Access Clinic filed a petition seeking review of these decisions by the U.S. Supreme Court, arguing that the questions presented by the case are extremely important, in part because the “decisions of the FISC affect the privacy, expressive, and associational rights of every American.”

Our Position: The Supreme Court should agree to hear the case in order to recognize that the FISC and FISCR have jurisdiction to hear right-of-access motions, and that there is a qualified First Amendment right of access to FISC opinions and orders.

  • Public oversight is an important component of the FISC’s ability to serve as a meaningful check on executive overreach when conducting foreign intelligence surveillance.
  • Historical events leading to the passage of FISA demonstrate that logic supports a right of access to FISC opinions and orders.
  • Courts considering the legality and constitutionality of foreign intelligence surveillance consistently recognize a qualified right of access, demonstrating that experience supports a right of access to FISC opinions and orders.
  • The denial of a forum in which to assert First Amendment rights raises significant constitutional concerns.

Quote: “[B]oth logic and experience support a qualified First Amendment right of access to  opinions and orders of the FISC, including those containing novel or significant interpretations of law. The FISC and FISCR decisions that effectively deny any third party the ability to even litigate that question would, if allowed to stand, prevent the press from informing the public about important developments in national security practices that implicate the civil liberties and privacy of millions of individuals in the United States.”

Related: The Reporters Committee filed friend-of-the-court briefs in support of previous efforts to unseal FISC opinions and orders. We’ve also written about how the FISC’s decisions affect members of the press.

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