The Reporters Committee, joined by 34 news organizations and press freedom groups, filed a friend-of-the-court brief last week in support of the American Civil Liberties Union’s effort to get the U.S. Supreme Court to take up a long-running case concerning public access to court documents at the Foreign Intelligence Surveillance Court, or FISC, a secret body that authorizes surveillance activities under the Foreign Intelligence Surveillance Act of 1978.
The case has a somewhat complicated legal history. In 2013, following revelations that the FISC had permitted the government, under Section 215 of the 2001 USA Patriot Act, to seize telephone records in bulk — that is, without a showing of individualized suspicion — the ACLU sought access to FISC records related to the collection.
In 2020, the FISC agreed that plaintiffs had standing to ask for the records, but refused to find a qualified First Amendment right of access. The FISC appeals court, the Foreign Intelligence Surveillance Court of Review, reversed, finding that the FISC did not even have jurisdiction to entertain the ACLU’s application.
Following passage of another federal law amending FISA, the USA Freedom Act, plaintiffs sought access in 2016 to all FISC opinions analyzing novel or significant legal issues after 9/11 and prior to passage of USA Freedom. Applying the earlier appellate decision, both the FISC and FISCR found that they did not have statutory jurisdiction to consider such applications for access.
In other words, they closed the courthouse door to any third-party, including the press, who might ask the courts to consider whether a qualified First Amendment right of access to FISC or FISCR records exists at all. That proceeding produced the FISCR decision that plaintiffs seek to have reviewed by the Supreme Court.
The coalition led by the Reporters Committee argued that the history of the FISA courts, which were created in the late 1970s as a check against executive overreach in foreign intelligence surveillance, strongly recommends a public right of access — in that the courts’ legitimacy and effective operation depend on public visibility into its activities.
The coalition also argued that the FISC’s and FISCR’s holdings — effectively that no court has the ability to decide whether a right of access exists at all — creates a system of rights without remedies, and that “rights without the possibility of meaningful exercise are not rights at all.”
It remains to be seen whether the Supreme Court will agree to hear the case. Notably, however, Ted Olson at Gibson, Dunn & Crutcher LLP, who, as solicitor general in the George W. Bush administration, successfully defended certain foreign intelligence surveillance powers under the USA Patriot Act, is serving as counsel of record for the plaintiffs (along with the ACLU, the Knight First Amendment Institute at Columbia University and the Media Freedom and Information Access Clinic at Yale Law School are also on the papers).
This is one we will be watching closely. Not only does it implicate core press and public access rights to a court that has, because of technological advances and expansions in its statutory authority, morphed into one that has to decide some of the weightiest privacy and civil liberties questions around today, the overreach during the 1950s, 1960s and 1970s that led to its creation often involved the direct surveillance of journalists and news organizations.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.