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ACLU v. United States (Amicus Brief)

The Brennan Center filed an amicus brief urging the Supreme Court to recognize a First Amendment right of public access to decisions of the Foreign Intelligence Surveillance Court.

Published: October 6, 2021

The Foreign Intel­li­gence Surveil­lance Court (“FISC”) renders enorm­ously consequen­tial decisions. From the bulk collec­tion of tele­phone records detailed in the Snowden disclos­ures to the warrant­less review of Amer­ic­ans’ commu­nic­a­tions collec­ted under Section 702 of the Foreign Intel­li­gence Surveil­lance Act (“FISA”), it has author­ized and regu­lated govern­ment surveil­lance prac­tices that directly affect Amer­ic­ans’ consti­tu­tional right to privacy since its found­ing in 1978. But many of its proceed­ings remain shrouded in secrecy. The court is not adversarial; prospect­ive targets for surveil­lance are neither informed nor permit­ted to take part in the review process. And only in recent years has the court begun to release some of its rulings to the public.

The Amer­ican Civil Liber­ties Union has filed three motions with the FISC seek­ing to compel disclos­ures related to its oper­a­tions. First, follow­ing the revel­a­tion in 2013 of the National Secur­ity Agency’s bulk collec­tion of phone records, the ACLU and Yale Law School’s Media Free­dom and Inform­a­tion Access clinic reques­ted that the court publish its opin­ions and orders on Section 215, the legal author­ity on which the phone records program was purportedly based. They subsequently filed a second joint motion seek­ing FISC opin­ions on the NSA’s collec­tion of Amer­ic­ans’ inter­net history and geoloca­tion data. Finally, in Octo­ber 2016, the ACLU attemp­ted to secure the release of all FISC decisions contain­ing “novel or signi­fic­ant inter­pret­a­tions” of law between 2001 and 2015 on First Amend­ment grounds.

In a thirty-page decision handed down in Febru­ary 2020, the FISC held that “the First Amend­ment does not provide a qual­i­fied right of public access to the opin­ions at issue.” The FISC’s appel­late court (the Foreign Intel­li­gence Surveil­lance Court of Review) went further, hold­ing that the FISC lacked subject-matter juris­dic­tion over the ACLU’s claims. In subsequent rulings, the FISC and FISCR simil­arly dismissed the ACLU’s peti­tion to obtain opin­ions contain­ing “novel or signi­fic­ant inter­pret­a­tions.” The ACLU, joined by the Knight First Amend­ment Insti­tute at Columbia Univer­sity, the Yale Law School clinic, and Gibson Dunn filed for certi­or­ari before the Supreme Court in order to vindic­ate the First Amend­ment right of access to court proceed­ings.

The Bren­nan Center and its co-coun­sel Davis Wright Tremaine, joined by the Amer­ic­ans for Prosper­ity Found­a­tion, filed an amicus brief support­ing the ACLU’s peti­tion for certi­or­ari. The brief argues that secret law in general subverts demo­cratic account­ab­il­ity and under­mines the rule of law. It then shows how the oper­a­tions of the FISC exem­plify these prob­lems, focus­ing on the FISC’s approval of the NSA’s bulk collec­tion program, which was over­turned by both Congress and the courts once the veil of secrecy was pierced by the Snowden disclos­ures.

Read the Bren­nan Center’s brief below.

ACLU v. United States (Amicus Brief) by The Bren­nan Center for Justice on Scribd