“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.”

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 decision.

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.”

“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.”

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.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

The brief by former government officials—including John Brennan, James Clapper, and Robert Litt all of whom served in high-ranking intelligence posts—argues: “[T]he FISC appears to start from the premise that recognizing a qualified right of access will undermine secrecy in ways that necessarily harm the Nation’s foreign intelligence efforts. That reflects a short-sighted, unrealistic view of the world. Too much secrecy itself can set back intelligence operations. … And excessive secrecy risks the type of unauthorized disclosures that have framed public debate about government surveillance efforts for much of the past decade.”

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 collection of emails, phone records, and internet browsing data—that can have profound implications for Americans’ privacy, expressive, and associational rights.

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.

Drawing on their own experience, the magistrate judges argue in their brief that making FISA court opinions publicly available is feasible, need not come at the expense of national security, and is critical to the development of the law and to maintaining public trust.

Briefs were filed today, or are expected to be filed later today, by:

• Former senior government officials, including Michael Bahar, former General Counsel for the House Permanent Select Committee on Intelligence; John O. Brennan, former Director of the Central Intelligence Agency; Lt. Gen. James R. Clapper, former Director of National Intelligence; James X. Dempsey former Member of the Privacy and Civil Liberties Oversight Board; Timothy H. Edgar, former Director for Privacy and Civil Liberties for the National Security Council; Sharon Bradford Franklin, former Executive Director of the Privacy and Civil Liberties Oversight Board; Robert S. Litt, former General Counsel for the Office of the Director of National Intelligence; and Donald B. Verrilli, Jr., former Solicitor General; represented by the law firm of Kaplan Hecker & Fink LLP;
• The Reporters Committee for Freedom of the Press and 34 media organizations;
• Former magistrate judges, including Judge James Orenstein, former United States Magistrate Judge for the Eastern District of New York; represented by the law firm of Jenner & Block LLP;
• Microsoft Corporation;
• The Brennan Center for Justice and the Americans for Prosperity Foundation; represented by Davis Wright Tremaine LLP;
• The Project for Privacy and Surveillance Accountability; and
• Professor Stephen Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law.

The ACLU’s petition asks 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 explains 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.”

Read more about this case here.

For more information, contact: Lorraine Kenny, Communications Director, lorraine.kenny@knightcolumbia.org. 

“This specialized court originally had a narrow role but today it routinely issues decisions that have far-reaching implications for Americans’ rights,” said Theodore B. Olson, who served as Solicitor General under President George W. Bush. Olson argued before the Foreign Intelligence Surveillance Court of Review (FISCR) 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. As we explain in our petition, it’s simply untenable to hold, as the Foreign Intelligence Surveillance Court effectively did, that whether the court’s opinions are published is up to the executive branch alone to decide.”

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 collection of emails, phone records, and internet browsing data—that can have profound implications for Americans’ privacy, expressive, and associational rights.

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. All of the opinions at issue in this case predate June 2015 and have been withheld from the public in their entirety.

“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. “Public access to these opinions will allow the public to better understand what the court has authorized and what the surveillance agencies are doing. Of course, it may sometimes be necessary to redact these opinions, but here, as in other contexts, the courts must ensure that redactions satisfy First Amendment standards. The Foreign Intelligence Surveillance Court isn’t exempt from the First Amendment rules that apply to other courts.”

In motions filed over a period of almost a decade, the groups have argued that the First Amendment requires the FISC to make its legal opinions public, with only those redactions necessary to serve compelling government interests. Today’s petition asks the Supreme Court to review decisions that the FISC and FISCR 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 explains 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.”

“Secret court rulings 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. “Americans’ 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 where only a secret court and the government know what they mean for our rights.”

Read today’s petition here.

Read more about this case here.

For more information, contact: Lorraine Kenny, Communications Director, lorraine.kenny@knightcolumbia.org. 

But the world is different now. Among the intelligence community elite, there seems to be a new recognition that excessive secrecy can be costly—and not just to democracy but to national security. In part because of the intelligence community’s experience since the Snowden disclosures, there’s also a new confidence in the ability of the government, and of the courts, to provide more transparency about the government’s activities without compromising sources and methods.

When we and our colleagues at the ACLU, the Knight Institute, and Yale’s media clinic argued in a cert petition last month that the FISC was wrong to reject a First Amendment right of access, we were joined by Ted Olson, who served as Solicitor General to President George W. Bush and defended the Patriot Act before the Foreign Intelligence Surveillance Court of Review (FISCR). Equally telling, among the many amici filing briefs in support of the petition today are other high-ranking national security figures, including James Clapper, the former director of national intelligence (DNI); John Brennan, the former CIA director; and Bob Litt, the former general counsel to the DNI. Anyone who followed the Snowden disclosures, and the government’s response to them, knows these names well.

The former officials’ brief is worth reading. It argues, as our cert petition does, that the FISC and FISCR were wrong to conclude that they lacked jurisdiction to consider right-of-access motions, and that the FISC was wrong to conclude, on the merits, that no such right of access is protected by the First Amendment. On this latter issue, the brief says:

[I]t is difficult to overstate the “significant positive role” that a qualified presumption of access would play in the functioning of the FISC and among the Intelligence Community and the public. Particularly in a context like this one—where serious national security concerns abound and protecting access to intelligence sources, methods, and targets is paramount—the trust and confidence of the public and the assurance of strong and credible oversight are critical. That trust is maintained by a presumption of access to the important judicial opinions of the courts responsible for reviewing and adjudicating the government’s compliance with the statutory and constitutional frameworks that govern intelligence collection.

The former officials also argue that excessive secrecy creates the circumstances in which unauthorized leaks become more likely and more dangerous. They write:

[T]he FISC appears to start from the premise that recognizing a qualified right of access will undermine secrecy in ways that necessarily harm the Nation’s foreign intelligence efforts. That reflects a short-sighted, unrealistic view of the world. Too much secrecy itself can set back intelligence operations. ... And excessive secrecy risks the type of unauthorized disclosures that have framed public debate about government surveillance efforts for much of the past decade. The public demands assurances that surveillance activities done in its name are subject to proper oversight and buttressed by sound applications of the law; if there is no legal means for obtaining such assurances, history has shown that unauthorized disclosures may fill the information vacuum.

Perhaps these arguments will strike some readers as obvious or even banal. But these arguments are dramatically different from the ones that routinely appeared in government briefs just a few years ago—and from the ones that the Bush, Obama, and Trump administrations have made before the FISC and FISCR. It is a significant thing that people like Clapper, Brennan, and Litt are not just endorsing these arguments but advancing them in front of the Supreme Court. (Notably, another signatory to the same brief is Don Verrilli, who served as Solicitor General under President Barack Obama and in that capacity represented the government in Amnesty v. Clapper. The Supreme Court’s decision in that case, which had the effect of insulating controversial surveillance practices from review on the merits, was one of the things that Edward Snowden cited in explaining his decision to share classified documents with the Guardian and the Washington Post.)

Other amicus briefs being filed today further underscore the breadth of the new consensus about transparency and national security surveillance. One brief comes from the Brennan Center (sometimes associated with the civil libertarian left) and Americans for Prosperity Foundation (usually associated with the libertarian right). Another, by the Reporters Committee for Freedom of the Press, has been signed by nearly three dozen major news organizations. And a brief by Microsoft explains why public access to the FISC’s opinions is vital to the company’s millions of users and to its global business.

Another especially notable brief comes from former magistrate judges, including James Orenstein (Eastern District of New York), and draws from those judges’ experience addressing novel and consequential surveillance issues.

Collectively, the amicus briefs being filed today are a testament to a dramatically changed political landscape. Civil libertarian arguments that were dismissed a decade ago are now broadly accepted, even at the highest levels of the intelligence community. The consensus is limited, of course, and it bears emphasis that people who agree that a qualified First Amendment right of access attaches to judicial opinions may disagree fundamentally about how the courts should give effect to that right when deciding whether and how to disclose any specific opinion. Still, what a difference a decade makes.

Secret law undermines democracy and the legitimacy of the judicial system—especially when the law being withheld from the public affects the rights of millions of people. So today, the ACLU is asking the Supreme Court to order the FISC to publish its secret opinions, redacted only as necessary to prevent genuine harm to national security. The petition—filed by ACLU lawyers, former Solicitor General Ted Olson, the Knight First Amendment Institute at Columbia University, and the Media Freedom and Information Access Clinic at Yale University—argues that the First Amendment gives the public a presumptive right of access to significant judicial opinions, including those of the FISC.

Today’s Supreme Court petition has its origins in the disclosures made by Edward Snowden, which exposed profound changes in the role of the FISC in overseeing government surveillance. In 2013, journalists working with documents provided by Snowden reported that, in the years after 9/11, the FISC had secretly authorized the NSA to engage in bulk surveillance. Days later, the ACLU and co-counsel filed a motion in the FISC seeking access to opinions that had authorized the NSA’s bulk collection of telephone call records. And in 2016, after the breadth of the FISC’s secret law had become even clearer, we filed another motion asking for access to the court’s opinions addressing novel or significant issues raised by the government’s surveillance applications.

The FISC operates behind closed doors and does not customarily publish its decisions. Although Congress required the government to review significant FISC opinions for declassification and 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.

Publication of the FISC’s opinions is crucial to public understanding of the nation’s surveillance laws. The FISC has interpreted those laws in deciding the legality of novel and sweeping surveillance programs, including the government’s warrantless and suspicionless searches of private emails; the government’s bulk collection of internet and telephone metadata; and the government’s surreptitious installation of malware. As long as the FISC’s opinions remain secret, it’s impossible to know the full extent to which our surveillance laws have permitted intelligence and law-enforcement agencies to collect information on Americans’ communications and activities.

But last year, the FISC held that because it is a specialized court that deals mainly 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 motions like the ones we filed.

As we argue in our petition, the FISC and FISCR were wrong about the First Amendment. Our legal system is founded on the presumption that laws are public. That presumption applies to all judicial opinions containing significant interpretations of law. There’s no special exception for opinions involving government surveillance and national security. In fact, federal courts around the country routinely publish opinions on those very topics. The FISC’s significant opinions, which affect the rights of millions, are no different. Like all courts, of course, the FISC may redact its opinions when necessary to conceal legitimate national security secrets. But to justify these kinds of redactions, the government must satisfy the First Amendment’s stringent standards.

The FISC and FISCR were also wrong about their jurisdiction. Courts around the country routinely consider First Amendment motions for access to their records—motions just like the ones we filed in the FISC. This makes sense. All courts created under Article III of the Constitution, including the FISC and FISCR, have inherent authority over their own records. If they didn’t, they wouldn’t be able to function properly, because they could not manage their own proceedings or ensure public access to the judiciary’s central work—its legal opinions.

Federal courts have uniformly held that because they have inherent authority over their own records, they can decide motions for access to those records. The same is true of the FISC and FISCR. They may be more specialized than most courts, but their inherent control over their own opinions gives them the power to consider motions for public access. This was the FISC’s own position until it reversed course in September 2020.

By placing its opinions outside the reach of the First Amendment, the FISC has deprived the public of information that’s vital to understanding how the FISC has interpreted the law, and the government surveillance that it has authorized. The Supreme Court must right this ship. The First Amendment gives the public a presumptive right to know how the FISC has shaped the nation’s laws and our liberties, and it’s time for the Supreme Court to enforce that right.

The Foreign Intelligence Surveillance Act (FISA), enacted in 1978, in the wake of Watergate, established the legal framework for government surveillance of suspected foreign agents in the United States. Central to that framework was judicial oversight, in the form of the FISC, a court then composed of 7, and now 11, federal district court judges. When the FISC was established, its responsibility was to decide whether there was probable cause for the government to conduct surveillance of specific individuals suspected to be foreign agents. Forty years later, the court now authorizes and oversees massive surveillance programs, many of them revealed in the 2013 leaks by Edward Snowden, and approves the targeting and minimization procedures that are supposed to keep these technological tools in check. The FISC also authors lengthy legal opinions analyzing the novel and complex factual, statutory, and constitutional questions that accompany such broad surveillance powers. In 2013, the ACLU and Yale’s Media Freedom and Information Access Clinic filed suit in the FISC seeking the court’s opinions “addressing the legal basis for the ‘bulk collection’ of  data by the United States government” under FISA. Last month, after the case wound through the FISC system, the FISCR, addressing solely a threshold question, held that the groups have standing to present their First Amendment argument to FISC on the merits.  

The Supreme Court first recognized a First Amendment right of access to judicial proceedings nearly forty years ago in Richmond Newspapers. Through a series of subsequent cases, the Court developed the two-pronged “experience and logic” test to analyze whether the public has a First Amendment right of access to a particular proceeding or opinion. Under the “experience” prong, a Court examines whether the proceeding to which access is sought is the kind of proceeding that has, historically, been open to the public. The “logic” prong centers on whether public access would play a “significant positive role” in the judicial process at issue. Using this framework, the Supreme Court has extended the right of access beyond criminal trials (Richmond Newspapers in 1980 and Globe Newspaper in 1982) to voir dire in criminal trials (Press-Enterprise I in 1984) and to at least some preliminary hearings (Press Enterprise II in 1986). Lower Courts have expanded the right of access to a broader set of criminal, civil, and administrative records and proceedings.

This expanding judicial transparency has not yet, however, reached the secretive FISC. The government has steadfastly resisted the argument that the First Amendment right of access attaches to the FISC’s opinions. But given the FISC’s greatly expanded role, which now includes in-depth statutory and constitutional rulings on programs that affect millions of individuals, “experience and logic” show that that the public should have the First Amendment right of access to certain FISC opinions.

The FISC has long defended against claims of a right of access by citing its own insular history.

Rejecting a public right of access in an earlier case, the court pointed to the “long-established and virtually unbroken practice of excluding the public from FISA applications and orders.” But this framing of the “experience” inquiry is misguided. In fact, the basic presumption is that opinions of Article III courts will be public. This is true even with respect to opinions relating to government surveillance, and even with respect to opinions relating to national-security surveillance. The FISC, which is an Article III court, may have operated outside this presumption when it was evaluating probable cause applications for targeted surveillance. But the government’s large-scale, technologically driven surveillance programs, promulgated under an amended and expanded FISA, has altered the nature of FISC’s oversight. It makes little sense to invoke the FISC’s history to justify continued secrecy when there is no long history of issuing opinions with such broad implications for individual rights. Congress recognized as much when, in the wake of the Snowden revelations, it passed the USA FREEDOM Act, which requires that the government declassify some of the FISC’s opinions. Traditional rules of judicial transparency should apply to the FISC’s opinions that include “significant” interpretations of law, Congress concluded.

The relevant question for the “experience” inquiry is not whether the forum itself has a history of openness, but rather whether the type of proceeding or  record has, historically, been available to the public. When courts are issuing opinions that concern constitutional and statutory questions affecting individual rights on a broad scale, there is no question that there has been a strong, historical right of public access to those opinions.  

As for the “logic” prong: Public access would clearly serve to enhance accountability and legitimacy for the FISC proceedings. First, as the Supreme Court has recognized in its public access cases, the public’s faith in the courts’ legitimacy stems in part from the fact that the courts are open to the public. Public access and oversight of the FISC would strengthen the public’s confidence that the government respects — or, at the very least, is constrained by — the boundaries of the law in its use of new surveillance technologies and powers. Second, transparency would enable the public to evaluate the legal justifications for government surveillance programs and, if appropriate, demand legislative change. And finally, public access would actually strengthen the FISC’s own capacity to fulfill its oversight responsibilities. Public, including scholarly, attention to both government surveillance and its legal justifications would generate the kind of feedback that is necessary to the iterative development of common law. Operating in secret, the FISC can easily  fail to grasp the import or nuances of the surveillance programs it is asked to referee. Section 215 — one of the provisions at issue in an earlier FISC opinion — serves as an example. The FISC failed to analyze the call-records program closely until Snowden exposed the program and the public responded to the revelations. Only then did the court conclude that the program raised legal issues of sufficient complexity to warrant a written opinion. 

The landscape has changed: the FISC, once charged with approving warrants to surveil individual suspected spies, now hears complex cases and issues opinions that implicate the civil liberties of millions of Americans. Blocking public access to those opinions undermines our democratic institutions and impedes accountability. It is time for the FISC to recognize a First Amendment right of access to its most significant opinions.