Free the FISC Opinions

By
Greg Margolis
April 16, 2018

Last month, the Foreign Intelligence Surveillance Court of Review (FISCR) held that a group of public-interest organizations have standing to seek access to secret opinions of the Foreign Intelligence Surveillance Court (FISC). This means that the organizations — the ACLU and Yale’s Media Freedom and Information Access Clinic, both co-represented by the Knight Institute — can now make the case to the FISC that certain of the court’s opinions are subject to a First Amendment right of access — in particular, those that contain novel or significant interpretations of law.

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.