Thursday, November 9, 2017
A sharply divided Foreign Intelligence Surveillance Court, sitting en banc for the first time in its history, ruled that the ACLU and Yale Law School's Media Freedom and Information Clinic have standing to seek redacted portions of FISC rulings that set out the legal basis for a government bulk-data-collection program. The ruling means that the movants' efforts to obtain the rulings can move forward, although it does not say anything about the merits.
The case arose after two newspapers in June 2013 released classified information about a surveillance program run by the government since 2006. The DNI then declassified further details about the bulk-data-collection program and acknowledge that the FISC approved much of it under Section 215 of the Patriot Act, the "business records" provision.
The movants filed a motion with the FISC, asking the FISC to unseal its opinions on Section 215. They argued that because officials had revealed key details of the program, there was no need to keep the legal justification for it secret, and moreover that they had a First Amendment right of access under Richmond Newspapers v. Virginia.
The government released more information about the program, including a white paper that explained how FISC judges periodically approved the directives to telecommunications providers to produce bulk telephonic metadata. At the same time, the FISC asked the government to review several of its opinions and then released redacted versions of those opinions relating to Section 215.
The movants then filed another motion to unseal classified sections of the FISC rulings. The government provided yet more redacted FISC opinions and moved to dismiss the second motion. The government argued that it would merely duplicate already-released opinions, and that the movants lacked standing.
As to standing, the FISC disagreed. In particular, the court said that the movants had a concrete and actual harm, "because the opinions are currently not available to them. . . . [M]oreover, it is sufficiently 'particularized' from that of the public because of Movants' active participation in ongoing debates about the legal validity of the bulk-data-collection program." The court emphasized that for the purpose of determining standing, it "must . . . assume that Movants are correct that they have a constitutional right of access--so long as that right is cognizable." In other words, the court said that the movants' standing couldn't turn on the viability of their substantive claim.
The dissent argued that "[n]o member of the public would have any 'right' under the First Amendment to ask to observe a hearing in a FISC courtroom. Still less should we be inventing such a 'right' in the present circumstances." Moreover, the dissent said that the movants, instead of seeking access to judicial proceedings, really only wanted the FISC "to rule that they have a 'right' of access to the information classified by the Executive Branch and that Executive Branch agencies must defend each redaction in the face of Movants' challenge." The dissent said that the movants therefore had no legally protected interests.