FISC Rejects Claim That Public Has a First Amendment Right to Court Decisions About Bulk Data Collection – Lawfare (blog)

Citizens do not have a First Amendment right to read the full court decisions that support the legality of the NSAs 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 Amendments right-of-access doctrinewhich entitles the public to access certain court proceedings and documents, typically in criminal casesapplies 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 FISCs 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 movantsthe ACLU, the ACLU of the Nations Capital and the Yale Law School Media Freedom and Information Access Clinicdid 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 deadlineof March 10 for the government to respond to the ACLUs arguments.

The Right of Access Argument

Like its motion from October, the ACLUs 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 Amendments 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 proceedingsrather than court proceedings generallyhistorically 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 ACLUs 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 courts 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 FISCs decision is bad precedent for the ACLUs pending motion, filed in October, that makes essentially the same First Amendment argument. But its not necessarily fatal. The October motion seeks a broader range of materialall of the FISCs major opinions and orders dating back to the September 11 attacksand includes additional bases for relief beyond the First Amendment, arguing that Rule 62 of the FISCs 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.

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FISC Rejects Claim That Public Has a First Amendment Right to Court Decisions About Bulk Data Collection - Lawfare (blog)