The filing comes after the Foreign Intelligence Surveillance Court and an associated review panel issued rulings in September and October saying they lacked authority even to consider a public claim under the First Amendment to their secret decisions and lawmaking.
Petitioners said the ruling after years of litigation threatens not only individual rights but also informed public debate about the extent of government spying, the public legitimacy of that spying and of the court, and the quality of the secret law it relies on and shapes.
“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,” said Theodore B. Olson, who served as U.S. solicitor general under President George W. Bush and joined petitioners.
“Can Congress tell a court you don’t have jurisdiction even to consider whether the public has a right to consistent access to opinions?” Olson said in an interview. “That’s not correct. The court has an obligation under the Constitution to consider whether something should be available to the public, and that should not be left completely to the discretion of the executive branch.”
The requesters include the ACLU, the Knight First Amendment Institute at Columbia University, on whose board Olson sits, and Yale Law School’s Media Freedom and Information Access Clinic.
Congress enacted the Foreign Intelligence Surveillance Act in 1978 to regulate domestic surveillance for national-security investigations — monitoring suspected spies and terrorists outside of the criminal justice system. Investigators must persuade a judge on the Foreign Intelligence Surveillance Court (FISC) that a target for eavesdropping is probably an agent of a foreign power, but targets can include Americans and any communication in which one party touches U.S. soil.
Privacy advocates have long criticized the court as a rubber stamp. The review process is one-sided — most subjects never know their information has been harvested and do not get to see what the government told the court or the Foreign Intelligence Surveillance Court of Review (FISCR) to investigate them. In 2019, judges approved 952 applications in whole or with modifications, while denying 58 in whole or in part.
Most of the court’s orders and filings are highly classified. Congress in 2015 required the government to review any significant opinions for public release. The ACLU argues that such reviews are conducted by executive branch officials, not a court, and that the government believes release of opinions before June 2015 is not required, although it has released several.
The FISC has on rare occasion released some heavily redacted and declassified opinions. One, posted in September and dated December 2019, found widespread violations of privacy rules in the National Security Agency’s post-9/11 warrantless surveillance and bulk wiretapping and data collection programs under a law known as Section 702.
The sweeping law allows the government to collect from U.S. companies such as Google, Facebook and Microsoft emails and phone calls of noncitizens abroad, including communications with Americans. Aspects of the once-secret NSA Stellar Wind program were leaked by former intelligence contractor Edward Snowden.
The surveillance court in December 2019 also blasted the FBI for misleading judges by cherry-picking facts presented to them in requesting to wiretap former Trump campaign adviser Carter Page in its Russia investigation. The rebuke sped up an overhaul in the bureau’s standards, training and auditing for search applications and in how it handles politically sensitive inquiries and intelligence.
Republicans’ outrage about what they said was partisan bias in the Foreign Intelligence Surveillance Act (FISA) process torpedoed legislation last year renewing three government authorities under parts of the law. They included collection of “tangible things” — such as books, documents and other physical records — relevant to a national security investigation; “roving” wiretaps to follow terrorism suspects who change phones and email accounts; and surveillance of “lone-wolf” individuals who may be planning a terrorist attack but are not affiliated with a foreign terrorist group.
FISA surveillance programs collecting emails, phone records and Internet browsing data also have caused an international backlash. The European Union’s top court last May, for example, struck down a transatlantic agreement used by more than 5,300 companies including American tech giants to move digital information between the European Union and the United States. The E.U. court cited Section 702’s warrantless surveillance, bulk wiretapping and data collection and other U.S. authorities for not complying with European privacy rights.
Monday’s petition revisits a subject that divided the FISC, 6 to 5, in the first opinion ever handed down by the court’s full bench in 2017. The court under Judge James E. Boasberg of Washington found that the ACLU and the Yale clinic had standing to challenge the government’s refusal to release portions of the court’s opinions, overturning a ruling by FISC Judge Rosemary Collyer.
A three-judge review court upheld the en banc decision and returned the case to Collyer. Last fall, Collyer on the merits found there was no First Amendment right to access the opinions, and the review court presided over by Judge David B. Sentelle of Washington ruled it had no jurisdiction even to consider the matter.
“Informed debate about government surveillance is impossible if the public doesn’t have access to the court opinions that evaluate the government’s surveillance activities,” said Jameel Jaffer, the Knight Institute’s executive director. “The Foreign Intelligence Surveillance Court isn’t exempt from the First Amendment rules that apply to other courts.”