Criminal Justice & the Rule of Law Intelligence

FISC Rejects Claim That Public Has a First Amendment Right to Court Decisions About Bulk Data Collection

Michael Linhorst
Monday, February 6, 2017, 1:39 PM

Citizens do not have a First Amendment right to read the full court decisions that support the legality of the NSA’s bulk data collection program, the Foreign Intelligence Surveillance Court concluded in an opinion issued on January 25th.

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Citizens do not have a First Amendment right to read the full court decisions that support the legality of the NSA’s bulk data collection program, the Foreign Intelligence Surveillance Court concluded in an opinion issued on January 25th.

The court rejected a motion from several civil rights groups that argued the First Amendment’s right-of-access doctrine—which entitles the public to access certain court proceedings and documents, typically in criminal cases—applies to those bulk-collection decisions.

The motion was filed in November 2013, five months after leaks by Edward Snowden publicly revealed the existence of an NSA bulk collection program. The motion sought the FISC’s “opinions addressing the legal basis for the ‘bulk collection’ of data.” According to a government filing, there are four such decisions, all of which were publicly released in 2014 after declassification reviews: an August 2013 amended memorandum, an October 2013 memorandum, an opinion and order (whose date was redacted), and a memorandum opinion, also with a redacted date.

Since those documents were released, the only remaining question for the FISC to answer was whether the public had a right to access the material redacted from those decisions.

The court dismissed the motion on standing grounds. It concluded that the movants—the ACLU, the ACLU of the Nation’s Capital and the Yale Law School Media Freedom and Information Access Clinic—did not have a right to the documents and therefore did not suffer an injury when parts of the documents were kept secret. As a result, the court held that the plaintiffs lacked standing to bring the motion.

The ACLU made a similar First Amendment argument in a motion it filed in October seeking access to all major FISC decisions issued since Sept. 11, 2001. (For more on that motion and the right-of-access doctrine, see our previous coverage here.) The court has not yet ruled on that motion, but it set a deadline of March 10 for the government to respond to the ACLU’s arguments.

The “Right of Access” Argument

Like its motion from October, the ACLU’s 2013 motion relied on the “right of access” doctrine, which generally requires court proceedings and documents to be open to the public if they meet a two-part test, known as the “experience and logic” test: they have historically been public (the “experience” prong) and public access offers some kind of discernible benefit (the “logic” prong). The idea behind the doctrine is straightforward: The First Amendment’s freedom of speech, press and assembly clauses provide the public with a right “not only to speak or to take action, but also to listen, observe, and learn,” as Justice Brennan wrote in 1980.

Both the ACLU and the FISC applied the “experience and logic” test to decide whether the public has a right to access FISC opinions, but they reached opposite results.

On the “experience” prong, the ACLU argued that courts normally disclose opinions that interpret the meaning and constitutionality of statutes, so there was historical precedent for the FISC to do the same. But the FISC said that framing was too broad. It said the real question is “whether FISC proceedings”—rather than court proceedings generally—“historically have been accessible to the public.” FISC opinions have not typically been released to the public, so the court concluded that the ACLU did not satisfy the “experience” prong of the test.

On the “logic” prong, the FISC similarly rejected the ACLU’s arguments. While the ACLU claimed that public access would improve the legitimacy, accuracy and oversight of the FISC, the court said those arguments were just “conclusory.” Citing its 2007 opinion in In re Motion for Release of Court Records, the court identified a variety of risks that might come about with such access, including the possibility that public access would encourage the government to forgo surveillance in certain cases and conduct surveillance without the court’s approval in cases where the need for court approval is unclear. It concluded that the ACLU “made no attempt to dispute or discredit these detrimental effects.”

The FISC’s decision is bad precedent for the ACLU’s pending motion, filed in October, that makes essentially the same First Amendment argument. But it’s not necessarily fatal. The October motion seeks a broader range of material—all of the FISC’s major opinions and orders dating back to the September 11 attacks—and includes additional bases for relief beyond the First Amendment, arguing that Rule 62 of the FISC’s procedural rules allows third parties to motion for public release of decisions, and inviting the court to use its inherent “supervisory power over its own records” to release its opinions. If the government chooses to respond to that motion by the March 10 deadline set by the court, the ACLU will have until March 31 to reply.

Michael Linhorst is a third-year student at Harvard Law School. He previously covered New Jersey state government for The Bergen Record.

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