Read the ACLU's motion seeking release of opinions from the Foreign Intelligence Surveillance Court

The ACLU is seeking the release of all significant, still-classified rulings by the Foreign Intelligence Surveillance Court on topics such as government surveillance and the government use of malware to collect intelligence. Despite Obama’s pledge to make the government more open, a report shows secret laws still abound

UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.

IN RE OPINIONS AND ORDERS OF THIS
COURT CONTAINING NOVEL OR
SIGNIFICANT INTERPRETATIONS OF LAW

No. Misc. 16-_______

MOTION OF THE AMERICAN CIVIL LIBERTIES UNION
FOR THE RELEASE OF COURT RECORDS

David A. Schulz
Hannah Bloch-Wehba
John Langford
Media Freedom & Information Access
Clinic, Abrams Institute
Yale Law School
P.O. Box 208215
New Haven, CT 06520
Phone: (203) 436-5827
Fax: (203) 432-3034
dschulz@lskslaw.com

Patrick Toomey
Brett Max Kaufman
Alex Abdo
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Phone: (212) 549-2500
Fax: (212) 549-2654
ptoomey@aclu.org
Arthur B. Spitzer
Scott Michelman
American Civil Liberties Union
of the Nationas Capital
4301 Connecticut Avenue, N.W., Suite 434
Washington, D.C. 20008
Phone: (202) 457-0800
Fax: (202) 457-0805
artspitzer@aclu-nca.org

TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 4
JURISDICTION ............................................................................................................................. 8
ARGUMENT .................................................................................................................................. 9
I.

Movant has standing to bring this public-access motion. ................................................... 9

II.

The First Amendment requires the release of this Courtas opinions and orders
containing novel or significant interpretations of law. ..................................................... 10
A. The First Amendment right of access attaches to judicial opinions, including the
opinions of this Court concerning novel or significant interpretations of law. .......... 10
1. aExperiencea ......................................................................................................... 11
2. aLogica .................................................................................................................. 15
B. The First Amendment requires disclosure of the Courtas opinions containing
novel or significant interpretations of law. ................................................................. 21

III.

The Court should order declassification review under Rule 62 and apply the First
Amendment standard to any proposed sealing by the government. ................................. 24

CONCLUSION ............................................................................................................................. 28

i

PRELIMINARY STATEMENT
Under the authority of the First Amendment and pursuant to Rule 62 of this Courtas
Rules of Procedure, the American Civil Liberties Union (the aACLUa or aMovanta) respectfully
moves the Foreign Intelligence Surveillance Court (aFISCa) to unseal its opinions and orders
containing novel or significant interpretations of law issued between September 11, 2001, and
the passage of the USA FREEDOM Act on June 2, 2015. 1 Based on public disclosures, it is clear
that over the past fifteen years the FISC has developed an extensive body of lawaone that
defines the reach of the governmentas surveillance powers and broadly affects the privacy
interests of Americans. Yet, even today, many of the FISCas significant opinions and orders have
not been disclosed to the public. These rulings appear to address a range of novel surveillance
activities, including the governmentas bulk searches of email received by Yahoo! customers; the
governmentas use of so-called aNetwork Investigative Techniquesa (aNITsa), more commonly
known as amalwarea; and the governmentas use of acybersignaturesa as a basis for surveillance
conducted pursuant to the Foreign Intelligence Surveillance Act (aFISAa). 2 The Courtas
undisclosed rulings also appear to address the lawfulness of surveillance conducted under
Section 702 of FISAaa controversial authority scheduled to expire in December 2017. The
significant legal interpretations of this Court are subject to the publicas First Amendment right of
access, and no proper basis exists to keep that legal analysis secret.
Congress created this Court in 1978 to ahear applications for and grant orders approving
electronic surveillancea within the United States of foreign powers and their agents. FISA, Pub.
L. No. 95-511, ASS 103, 92 Stat. 1783 (1978) (codified at 50 U.S.C. ASS 1803). Since the disclosures
1

Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline
Over Monitoring Act (aUSA FREEDOM Acta), Pub. L. No. 114-23, 129 Stat. 267 (2015).
2

In the attached Appendix, Movant has provided a non-exhaustive list of FISC rulings that it
believes fall within the scope of this motion and have not yet been publicly released.

1

that began in June 2013, however, it has become increasingly apparent that the Court does more
than review individualized surveillance applications on a case-by-case basis. Rather, the Courtas
role expanded over the past fifteen years to include programmatic approval and review of
government surveillance activities that affect countless Americans.
The Courtas new role was accompanied by a growing body of secret law. In at least some
instances, the Courtas interpretations departed significantly from the public understanding of the
laws at issue. See, e.g., ACLU v. Clapper, 785 F.3d 787, 812 (2015) (describing the aexpansive
concept of arelevanceaa adopted by this Court in interpreting Section 215). During the past three
years, the Court has responded by making more of its precedent available to the public, including
in response to a previous motion filed by the ACLU. See In re Orders of this Court Interpreting
Section 215 of the PATRIOT Act (aIn re Section 215 Ordersa), No. Misc. 13-02, 2013 WL
5460064, at *7 (FISC Sept. 13, 2013); Opinion and Order Directing Declassification of Redacted
Opinion (aDeclassification Ordera), In re Section 215 Orders, No. Misc. 13-02 (FISC Aug. 7,
2014), http://1.usa.gov/1yekcfM. Congress, too, has responded by directing the government to
publicly release significant opinions of this Court to the greatest extent practicable, as part of the
USA FREEDOM Act. See 50 U.S.C. ASS 1872. However, the government has taken the position
that its statutory disclosure obligation does not apply to opinions that predate the Actas passage
on June 2, 2015. 3 As a result, a number of significant opinions and orders of this Court issued
prior to June 2015 remain secret.

3

See Govat Mem., Elec. Frontier Found. v. DOJ, No. 14-cv-00760 (D.D.C. Feb. 5, 2016)
(ECF No. 28). But see Pl. Mot. for Partial Summ. J. & Opp., Elec. Frontier Found. v. DOJ, No.
14-cv-00760 (N.D. Cal. Oct. 13, 2016) (ECF No. 32); Sen. Ron Wyden, Press Statement (Oct. 7,
2016) (aThe USA Freedom Act requires the executive branch to declassify Foreign Intelligence
Surveillance Court opinions that involve novel interpretations of laws or the Constitution.a).

2

Through this Motion, the ACLU seeks access to these opinions and orders for two
reasons. First, some of the opinions and orders pertain to surveillance programs that are already
the subject of considerable public debateaincluding the governmentas PRISM and Upstream
collection programs conducted pursuant to Section 702 of FISA. The public is entitled under the
First Amendment to access the legal interpretations that define the limits of those programs.
Second, and more broadly, some of the opinions and orders relate to novel legal questions the
Court addressed as the governmentas surveillance activities expanded after September 11, 2001,
such as the use of court-authorized malware and the extension of FISA to cybersecurity
activities. These rulings are necessary to inform the public about the scope of the governmentas
surveillance powers today.
The ACLUas request for access to opinions and orders of this Court seeks to vindicate the
publicas overriding interest in understanding how federal statutes are being construed and
implemented, and how constitutional protections for personal privacy and expressive and
associational activities are being enforced. The First Amendment guarantees the public a
qualified right of access to those opinions because judicial opinions interpreting constitutional
and statutory limits on governmental authoritiesaincluding those relevant to foreign-intelligence
surveillanceahave regularly been available for inspection by the public, and because their
release is manifestly fundamental in a democracy committed to the rule of law. Public disclosure
serves to improve the functioning of the Court itself, to enhance its perceived fairness and
independence, and to educate citizens about the Courtas role in ensuring the integrity of the FISA
system. This First Amendment guarantee of public access may be overcome only if the
government is able to demonstrate a substantial probability of harm to a compelling interest and
the absence of any alternative means to protect that interest. Any limits on the publicas right of

3

access must then be narrowly tailored and demonstrably effective in avoiding that harm.
The ACLU respectfully asks this Court to order the government to promptly process and
prepare for publication opinions and orders of this Court containing novel or significant
interpretations of law, including but not limited to those identified in the Appendix. 4 Because the
opinions are of critical importance to the ongoing public debate about the legitimacy and wisdom
of the governmentas surveillance activities, the ACLU respectfully requests that the Court order
the publication of the opinions as quickly as possible, with only those redactions justified under
the stringent First Amendment standard.
FACTUAL BACKGROUND
In June 2013, various press outlets disclosed the existence of previously unknown
government surveillance programs, including the National Security Agencyas bulk collection of
telephone metadata pursuant to 50 U.S.C. ASS 1861, and the PRISM and Upstream programs
operated under Section 702 of FISA, which the government uses to seize and search vast
quantities of Internet communications. 5 These news stories and subsequent reporting and
disclosures alerted the public to the existence of a growing body of important FISC rulings on
matters of significant public interest. While the FISC was created to hear individualized
4

Movant notes that, since 2004, the government has been required to identify, summarize,
and provide to the Intelligence and Judiciary Committees of both houses of Congress
asignificanta legal interpretations of FISA. 50 U.S.C. ASS 1871(a)(4)a(5); see also id. ASS 1871(c).
Similarly, for FISC opinions related to ASS 702 of FISA, the executive branch is required to
categorize the Courtas opinions as containing a significant legal interpretation or not. 50 U.S.C.
ASS 1881f(b)(1)(D) (requiring the government to provide copies to Congress of any FISC opinion
athat contains a significant legal interpretation of the provisions of [Section 702 of FISA]a).
Where there is a question as to whether an opinion or order constitutes a significant
interpretation of law, Movant requests that the Court make a determination as to the rulingas
significance.
5

See, e.g., Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon
Customers Daily, Guardian, June 6, 2013, http://gu.com/p/3gc62; Barton Gellman & Laura
Poitras, U.S., British Intelligence Mining Data from Nine U.S. Internet Companies in Broad
Secret Program, Wash. Post, June 7, 2013, http://wpo.st/eW7Y1.

4

surveillance demands, the orders and opinions that were published with the leaked documents
revealed that the FISC was also authorizing and overseeing several broad programs of
surveillance, relying on a body of its own opinions interpreting statutory and constitutional law.
Because FISC opinions were rarely published, the disclosures made the public aware that it was
being (and had for some time been) denied access to a growing body of secret law.
To address the publicas concerns that developed in the wake of these disclosures about
the legal foundations of the governmentas various surveillance programs, the government began
to declassify and release significant information related to its surveillance activities. For
example, in the months immediately following the initial news stories about the governmentas
bulk call-records program, the government released a white paper providing more details about
the program, its purported value, and its legal underpinnings. 6 And the Office of the Director of
National Intelligence (aODNIa) began a marked increase in its communications with the public
about the governmentas national-security surveillance programs. 7
This Court also grasped the immense public interest surrounding the governmentas
surveillance activities and the need for public access to its opinions and orders. After the initial
disclosures in June 2013, this Court began to makes more of its opinions and orders available to
the public as a matter of course. 8 In In re Section 215 Orders, the Court acknowledged the
important values served by the disclosure of these opinions. It noted that previous public
disclosures had aengendered considerable public interest and debatea and that further
6

Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of
the USA PATRIOT Act (Aug. 9, 2013), http://big.assets.huffingtonpost.com/Section215.pdf.
7

As one example of its increased outreach efforts, the ODNI began utilizing social media to
address these important matters of public concern and to release declassified documents,
including opinions of this Court, to the public. See ODNI, IC on the Record,
https://icontherecord.tumblr.com/.
8

See generally Public Filings a FISC, http://www.fisc.uscourts.gov/public-filings.

5

a[p]ublication of FISC opinions . . . would contribute to that debate.a 9 The Court also
underscored the assertions by legislators of the avalue of public information and debate in
representing their constituents and discharging their legislative responsibilities,a and affirmed
that a[p]ublication would also assure citizens of the integrity of this Courtas proceedings.a 10
Likely for the same reason, the Courtas then-Presiding Judge published his correspondence with
Congress explaining the FISCas operating procedures and detailing certain statistics concerning
the Courtas approval of government applications. 11
The intense public interest triggered by the June 2013 surveillance disclosures has only
grown in the ensuing years. For almost three years, the American people have taken part in a
wide-ranging public debate about the scope, interpretations, and appropriate bounds of our
nationas surveillance laws. New details have continued to emerge about the governmentas
programs. 12 Executive-branch bodies have engaged in significant public oversight of
surveillance programs, conducting hearings with government and outside experts, and issuing
reports on several programs that assess their legality and make recommendations on areas of
concern. 13 And Congress has actively engaged on the issue, including by passing legislation to

9

In re Section 215 Orders, 2013 WL 5460064, at *7.

10

Id.; see Mem. Op., In re Application of the FBI for an Order Requiring the Production of
Tangible Things from [Redacted], No. BR 13-158 (FISC Oct. 11, 2013), http://bit.ly/2e2yB1y; In
re Application of the FBI for an Order Requiring the Production of Tangible Things from
[Redacted], No. BR 13-109, 2013 WL 5741573, at *1 (FISC Aug. 29, 2013).
11

See, e.g., Letter from Hon. Reggie B. Walton, Presiding Judge, FISC, to Hon. Patrick J.
Leahy, Chairman, Comm. on the Judiciary (Oct. 11, 2013), http://bit.ly/2e2H8BH.
12

See, e.g., Charlie Savage et al., Hunting for Hackers, N.S.A. Secretly Expands Internet
Spying at U.S. Border, N.Y. Times, June 4, 2015, http://nyti.ms/1GmFXE0 (reporting that in
2009 the NSA began conducting warrantless searches using patterns associated with computer
intrusionsai.e., acybersignaturesaaand Internet protocol addresses as selectors).
13

See, e.g., Privacy & Civil Liberties Oversight Bd. (aPCLOBa), Report on the Telephone
Records Program Conducted under Section 215 (2014), http://bit.ly/1SRiPke; Presidentas
6

end the governmentas bulk-collection activities and to require the publication of the very sorts of
significant legal opinions sought through the ACLUas Motion. 14
Yet many of this Courtas significant opinions and ordersasome of which have been
explicitly referenced or described by the Courtahave never been released to the public. For
example, news reports published earlier this month revealed the existence of a previously
undisclosed order from this Court requiring Yahoo! to scan, in real time, all incoming email
traffic for a particular computer asignature.a 15 To comply, Yahoo! reportedly developed a
custom scanning system and searched hundreds of millions of emails, storing and making
available to the FBI copies of any emails containing the signature(s) specified by the
government. 16 The revelation of Yahoo!as bulk email searching has drawn public alarm. Other
major email providers, including Google and Microsoft, quickly moved to reassure their users
that they had not engaged in similar surveillance. 17 Senator Ron Wyden expressed dismay and
called on the executive branch to notify the public of any substantial changes to its surveillance
authorities, while Representative Ted Lieu challenged the programas constitutionality. 18 Yet the
public still does not know the legal basis for the Yahoo! order.

Review Grp. on Intelligence & Commcans Techs., Liberty and Security in a Changing World:
Report and Recommendations (2013), http://1.usa.gov/1cBct0k.
14

USA FREEDOM Act ASSASS 103, 201, 501; id. ASS 402.

15

Joseph Menn, Exclusive a Yahoo Secretly Scanned Customer Emails for U.S. Intelligence
Sources, Reuters (Oct. 4, 2016), http://yhoo.it/2cQh5vB; Charlie Savage & Nicole Perlroth,
Yahoo Said to Have Aided U.S. Email Surveillance by Adapting Spam Filter, N.Y. Times (Oct. 5,
2016), http://nyti.ms/2dFsC0q.
16

Menn, supra note 15; Savage & Perlroth, supra note 15.

17

Menn, supra note 15.

18

Cyrus Farivar, Yahooas CISO Resigned in 2015 over Secret E-mail Search Tool Ordered by
Feds, Ars Technica, Oct. 4, 2016, http://bit.ly/2dHtyhQ.

7

As the revelation of the Yahoo! order underscores, an unknown number of legal opinions
and orders assessing the constitutionality of and statutory basis for the governmentas surveillance
activities remain hidden from the public. Based on official disclosures and media reports, that
body of law appears to encompass, among other things: the governmentas use of malware, or
NITs, in foreign-intelligence investigations, see Appendix, No. 2; the governmentas use of FISA
to compel technology companies to weaken or circumvent encryption protocols, see id. No. 3;
the governmentas use of FISA to compel disclosure of source code from technology companies,
see id. No. 4; the governmentas use of acybersignaturesa as a basis for FISA surveillance, see id.
No. 5; the governmentas use of astingraysa and other cell-site simulator technology in foreignintelligence investigations, see id. No. 7; and the CIAas and FBIas bulk collection of Americansa
financial records, see id. No. 11. While Movant has identified many undisclosed opinions based
on existing public information, there are surely additional rulings of this Court that should
likewise be disclosed pursuant to the publicas First Amendment right of access. 19
Movant, through this motion, seeks the public release of those controlling legal
interpretations.
JURISDICTION
As a federal court established by Congress under Article III, this Court possesses inherent
powers, including asupervisory power over its own records and files.a Nixon v. Warner
Commcans, Inc., 435 U.S. 589, 598 (1978); accord Chambers v. NASCO, Inc., 501 U.S. 32, 43
(1991) (aIt has long been understood that [c]ertain implied powers must necessarily result to our
Courts of justice from the nature of their institution.a). As this Court has previously determined,
19

By one estimate, there are at least 25 to 30 significant FISC opinions and orders issued
between mid-2003 and mid-2013 that remain sealed, and several more that were issued in the
two years prior to the passage of the USA FREEDOM Act. See Elizabeth Goitein, Brennan Ctr.
for Justice, The New Era of Secret Law 60a61 (2016), http://bit.ly/2eNep2g.

8

the FISC therefore has ajurisdiction in the first instance to adjudicate a claim of right to the
courtas very own records and files.a In re Motion for Release of Court Records, 526 F. Supp. 2d
484, 487 (FISC 2007).
ARGUMENT
I.

Movant has standing to bring this public-access motion.
To demonstrate Article III standing, a party seeking judicial action must show a(1) that it

has suffered an ainjury in facta; (2) that the injury is caused by or fairly traceable to the
challenged actions of the defendant; and (3) that it is likely that the injury will be redressed by a
favorable decision.a Ethyl Corp. v. EPA, 306 F.3d 1144, 1147 (D.C. Cir. 2002) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560a61 (1992)). As the Court found when addressing the
ACLUas 2013 motion, each element is met here. See In re Section 215 Orders, 2013 WL
5460064, at *2a4.
The ACLUas injury hereaa denial of access to court opinionsais concrete and
particularized. See Globe Newspaper Co. v. Superior Court for Cty. of Norfolk, 457 U.S. 596
(1982); Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 576 (1980); N.Y. Civil Liberties
Union v. N.Y.C. Transit Auth. (aNYCTAa), 684 F.3d 286, 294a95 (2d Cir. 2011); In re Wash.
Post, 807 F.2d 383, 388 n.4 (4th Cir. 1986). The ACLU actively participates in the legislative
and public debates about the proper scope of the governmentas surveillance authorities, including
the lawfulness of Section 702 surveillance, the governmentas deployment of malware, and the
meaning of FISAas provisions. 20 And plainly, the ACLUas injury is both caused by the denial of
public access to the opinions and orders sought here, see Valley Forge Christian Coll. v. Ams.
20

See, e.g., Submission of ACLU Deputy Legal Director Jameel Jaffer, PCLOB Public
Hearing on Section 702 of FISA (Mar. 19, 2014), http://bit.ly/2djfoqM; Joe Uchill, ACLU
Questions How Tor Email Users Got FBI-Deployed Malware, Hill, Sept. 6, 2016,
http://bit.ly/2cIZ82T.

9

United for Separation of Church & State, 454 U.S. 464, 472 (1982), and would be redressed by
the requested relief, see Town of Barnstable v. FAA, 659 F.3d 28, 31 (D.C. Cir. 2011).
II.

The First Amendment requires the release of this Courtas opinions and orders
containing novel or significant interpretations of law.
A. The First Amendment right of access attaches to judicial opinions, including the
opinions of this Court concerning novel or significant interpretations of law.
That the judicial process should be as open to the public as possible is a principle

enshrined in both the Constitution and the common law. See Richmond Newspapers, 448 U.S. at
564a73; Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) (aThe common
law right of public access to judicial documents is firmly rooted in our nationas history.a); cf.
Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 Writings of James Madison at 103
(G. Hunt ed. 1910) (aA popular Government, without popular information, or the means of
acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.a). Under the Supreme
Courtas prevailing aexperience and logica test, the First Amendment right of public access
attaches to judicial proceedings and records where (a) the type of judicial process or record
sought has historically been available to the public, and (b) public access plays a asignificant
positive rolea in the functioning of the process itself. Press-Enter. Co. v. Superior Court (aPressEnter. IIa), 478 U.S. 1, 9, 11 (1986); see Globe Newspaper, 457 U.S. at 605a07; Wash. Post v.
Robinson, 935 F.2d 282, 287a92 (D.C. Cir. 1991). Proceedings and records to which the right of
access attaches are presumptively open to the public and may be closed only where there is a
substantial probability of harm to a compelling government interest, and where no alternative to
a narrow limitation of access can effectively protect against that harm. NYCTA, 684 F.3d at 296.
In other words, the right of access is qualified but may not be denied without aspecific, on the
record findingsa that aclosure is essential to preserve higher values and is narrowly tailored to

10

serve that interest.a Press-Enter. II, 478 U.S. at 13a14 (quoting Press-Enter. Co. v. Superior
Court (aPress-Enter. Ia), 464 U.S. 501, 510 (1984)).
Here, there is a nearly unbroken tradition of public access to judicial rulings and opinions
interpreting the Constitution and our laws. Moreover, public access to such rulings allows the
public to function as an essential check on the government and improves judicial
decisionmaking. Those interests are particularly acute in the context of this Courtas opinions
interpreting the reach and constitutionality of the governmentas surveillance authorities. Access
would enhance the functioning of this Court and the FISA system by facilitating effective public
oversight; increasing the legitimacy and independence of this Court; subjecting this Courtas legal
opinions to scrutiny within our common-law system; and permitting Congress, subject-matter
experts, and the broader public to evaluate this Courtas legal interpretations as they consider
changes to the law. For these reasons, and as explained more fully below, the constitutional right
of access extends to the opinions and orders of this Court concerning novel or significant
interpretations of law.
1.

aExperiencea

Not only is there a nearly unbroken tradition of public access to judicial rulings and
opinions interpreting the Constitution and the laws governing the American people, but Congress
has recently reaffirmed that tradition with respect to this very Court. See USA FREEDOM Act
ASS 402 (codified at 50 U.S.C. ASS 1872) (requiring decisions, orders, and opinions of the FISC
containing asignificant construction[s] or interpretation[s] of any provision of lawa be made
apublicly available to the greatest extent practicablea).
No type of judicial record enjoys a more uninterrupted history of openness than judicial
opinions. As explained by the Third Circuit:

11

As ours is a common-law system based on the adirective forcea of precedents, its
effective and efficient functioning demands wide dissemination of judicial
decisions. . . . Even that part of the law which consists of codified statutes is
incomplete without the accompanying body of judicial decisions construing the
statutes. Accordingly, under our system of jurisprudence the judiciary has the
duty of publishing and disseminating its decisions.
Lowenschuss v. W. Publag Co., 542 F.2d 180, 185 (3d Cir. 1976) (quoting Benjamin N. Cardozo,
The Nature of the Judicial Process 20, 21a22 (1963)); see Scheiner v. Wallace, No. 93-cv-0062,
1996 WL 633226, at *1 (S.D.N.Y. Oct. 31, 1996) (aThe public interest in an accountable
judiciary generally demands that the reasons for a judgment be exposed to public scrutiny.a
(citing United States v. Amodeo, 71 F.3d 1044, 1048a49 (2d Cir. 1995))).
Dissemination of judicial opinions is necessary both for the public to understand what the
law is and to preserve the legitimacy of the judicial process. See U.S. Bancorp Mortg. Co. v.
Bonner Mall Paship, 513 U.S. 18, 26 (1994) (a[J]udicial precedents are . . . valuable to the legal
community as a whole. They are not merely the property of private litigants.a); accord
Lowenschuss, 542 F.2d at 185; see also Union Oil Co. v. Leavell, 220 F.3d 562, 568 (7th Cir.
2000) (Easterbrook, J.) (aWhat happens in the halls of government is presumptively public
business. Judges deliberate in private but issue public decisions after public arguments based on
public records. The political branches of government claim legitimacy by election, judges by
reason. Any step that withdraws an element of the judicial process from public view makes the
ensuing decision look more like fiat, which requires compelling justification.a). Accordingly,
appellate courts have recognized that public access to opinions is protected by the First
Amendment. Company Doe v. Public Citizen, 749 F.3d 246, 267a68 (4th Cir. 2014) (finding that
ait would be anomalousa for the First Amendment to apply to some judicial records but not to
athe courtas opinion itselfa); United States v. Mentzos, 462 F.3d 830, 843 n.4 (8th Cir. 2006)
(denying motion to file opinion under seal abecause the decisions of the court are a matter of

12

public recorda); Union Oil, 220 F.3d at 568 (a[I]t should go without saying that the judgeas
opinions and orders belong in the public domain.a).
Given this history, courts have customarily disclosed opinions dealing with the
governmentas authority to conduct investigations and gather information about individuals,
particularly U.S. citizens. For example, the First Amendment right of access has been held to
apply to judicial opinions construing the governmentas search and seizure powers. See In re
Application of N.Y. Times Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83,
88 (D.D.C. 2008). And federal courts have routinely published their opinions interpreting the
scope and constitutionality of intelligence collection permitted under FISA and related
authoritiesathe very type of opinions the ACLU seeks here. See, e.g., United States v. U.S. Dist.
Court for the E. Dist. of Mich., 407 U.S. 297 (1972) (considering constitutionality of warrantlesswiretapping program conducted by the government to aprotect the national securitya); United
States v. Duggan, 743 F.2d 59, 72a74, 77 (2d Cir. 1984) (analyzing FISAas original apurposea
requirement, and holding that aFISA does not violate the probable cause requirement of the
Fourth Amendmenta); Jewel v. NSA, 673 F.3d 902, 905 (9th Cir. 2011) (reversing dismissal of
lawsuit challenging awidespread warrantless eavesdropping in the United Statesa); In re
Application for Pen Register & Trap/Trace Device with Cell Site Location Auth. (aIn re PR/TT
with CSLIa), 396 F. Supp. 2d 747, 748a49 (S.D. Tex. 2005) (refusing government request to seal
opinion abecause it concerns a matter of statutory interpretationa and the issue explored ahas
serious implications for the balance between privacy and law enforcement, and is a matter of first
impressiona).
Critically, Congress has made the judgment that significant legal opinions and orders of
this Court do not fall outside our long tradition of judicial transparency. See USA FREEDOM

13

Act ASS 402. Recognizing the importance of the FISCas jurisprudence, Congress has explicitly
required this Courtas opinions and orders involving asignificant construction[s] or
interpretation[s] of any provision of lawa be made apublicly available to the greatest extent
practicable.a 50 U.S.C. ASS 1872(a); see also id. ASS 1872(b) (stating that redacted versions of
opinions and orders may meet the statutory requirement). Congress set a high bar for
withholding such opinions and orders, and even where they can properly be withheld, the
Attorney General must publicly release an unclassified statement summarizing their contents. Id.
ASS 1872(c) (indicating non-disclosure is appropriate only where anecessary to protect the national
security of the United Statesa and outlining Attorney Generalas obligations when opinions and
orders are withheld).
That until recently FISC opinions were ordinarily sealed is of no moment to the First
Amendmentas aexperiencea test. The Supreme Court has instructed that the experience prong of
its two-part test adoes not look to the particular practice of any one jurisdiction, but instead ato
the experience in that type or kind of hearing throughout the United States . . . .aa El Vocero de
P.R. v. Puerto Rico, 508 U.S. 147, 150 (1993) (per curiam) (quoting Rivera-Puig v. GarciaRosario, 983 F.2d 311, 323 (1st Cir. 1992)). In other words, the proper focus of the aexperiencea
analysis is the type of governmental process or record to which a petitioner seeks access, not the
past practice of the specific forum in which such access is being sought. See, e.g., NYCTA, 684
F.3d at 301 (rejecting view that aRichmond Newspapers test looks . . . to the formal description
of the foruma); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 94 (2d Cir. 2004) (examining
First Amendment right of access to court adocket sheets and their historical counterparts,a
beginning with early English courts); In re Bos. Herald, Inc., 321 F.3d 174, 184 (1st Cir. 2003)
(experience test includes examination of aanalogous proceedings and documentsa).

14

In assessing how the past experience of access applies to a new forum, it is inappropriate
to analyze only the history of that forum itself. Because there will never be a tradition of public
access in new forums, this approach would permit Congress to circumvent the constitutional
right of access altogetheraeven as to, say, criminal trialsasimply by providing that such trials
henceforth be heard in a newly created forum. See, e.g., NYCTA, 684 F.3d at 299 (aImmunizing
government proceedings from public scrutiny by placing them in institutions the Framers could
not have imagined . . . would make avoidance of constitutional protections all too easy.a); In re
Copley Press, Inc., 518 F.3d 1022, 1027 (9th Cir. 2008). The proper approach, therefore, is to
examine whether the type of proceeding or record at issueahere, judicial opinions interpreting
the meaning and constitutionality of public statutesahas historically been open or available to
the public. See, e.g., NYCTA, 684 F.3d at 299.
2.

aLogica

Just as fundamentally, public access to the opinions of this Court is important to the
functioning of both the law in general and the FISA system in particular.
The asignificant positive rolea of public judicial decisionmaking in a democracy is so
essential that it is hardly ever questioned. Courts have repeatedly recognized that public access to
judicial opinions serves a vital function:
The decisions and opinions of the justices are the authorized expositions and
interpretations of the laws, which are binding upon all the citizens. They declare
the unwritten law, and construe and declare the meaning of the statutes. Every
citizen is presumed to know the law thus declared, and it needs no argument to
show that justice requires that all should have free access to the opinions, and that
it is against sound public policy to prevent this, or to suppress and keep from the
earliest knowledge of the public the statutes, or the decisions and opinions of the
justices. Such opinions stand, upon principle, on substantially the same footing as
the statutes enacted by the legislature. It can hardly be contended that it would be
within the constitutional power of the legislature to enact that the statutes and
opinions should not be made known to the public . . . . The policy of the state
always has been that the opinions of the justices, after they are delivered, belong
to the public.
15

Nash v. Lathrop, 142 Mass. 29, 35a36 (1886) (emphasis added) (cited by Banks v. Manchester,
128 U.S. 244, 253a54 (1888)); see also Lowenschuss, 542 F.2d at 185. The importance of public
access to judicial opinions flows from two bedrock principles: (1) the publicas right to know
what the law is, as a condition of democratic governance; and (2) the founding recognition that,
in our political system, it is aemphatically the province and duty of the judicial department to say
what the law is.a Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Because courts
determine what the law meansaand therefore what the law isathe societal need for access to
judicial opinions is paramount.
The value in making judicial opinions available to the public only increases where, as
here, the opinions concern both the power of the executive branch and the constitutional rights of
citizens. See FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987) (access to
court files aaccentuateda where athe publicas right to know what the executive branch is about
coalesces with the concomitant right of the citizenry to appraise the judicial brancha); In re
PR/TT with CSLI, 396 F. Supp. 2d at 748a49 (refusing government request to seal order that ahas
serious implications for the balance between privacy and law enforcementa).
This principle applies with equal force in the context of national security, where the
courts routinely recognize and give effect to the publicas right of access to judicial opinions and
orders. See, e.g., United States v. Aref, 533 F.3d 72, 82a83 (2d Cir. 2008); In re Wash. Post, 807
F.2d at 393; United States v. Rosen, 487 F. Supp. 2d 703, 710, 716a17 (E.D. Va. 2007). In fact,
where matters of national security are at stake, the role of public evaluation of judicial decisions
takes on an even weightier role. See, e.g., In re Wash. Post, 807 F.2d at 393; United States v.
Ressam, 221 F. Supp. 2d 1252, 1262 (W.D. Wash. 2002); see also N.Y. Times Co. v. United
States, 403 U.S. 713, 719 (1971) (Black, J., concurring) (stating that afully aware of . . . the need

16

to defend a new nation,a the Framers wrote the First Amendment ato give this new society
strength and securitya); Det. Free Press v. Ashcroft, 303 F.3d 681, 709a10 (6th Cir. 2002)
(finding invocation of non-specific anational securitya concerns insufficient to overcome
publicas qualified right of access to quasi-judicial proceedings).
Public access to the opinions of this Court is important to the functioning of the law and
the FISA system in several respects.
First, public access to the opinions of this Court will promote public confidence in the
integrity, reliability, and independence of the FISC and the FISA system. Access to the reasoning
and actions of this Court will allow the public to evaluate for itself the operation of the FISA
system and the legal bases for the governmentas actions. As the Supreme Court has explained,
a[p]eople in an open society do not demand infallibility from their institutions, but it is difficult
for them to accept what they are prohibited from observing.a Press-Enter. II, 478 U.S. at 13
(quotation marks omitted); see, e.g., Globe Newspaper, 457 U.S. at 606 (public access to court
documents and proceedings afosters an appearance of fairness, thereby heightening public
respect for the judicial processa); Aref, 533 F.3d at 83 (aTransparency is pivotal to public
perception of the judiciaryas legitimacy and independence.a); In re Orion Pictures Corp., 21
F.3d 24, 26 (2d Cir. 1994) (public access ahelps safeguard the integrity, quality, and respect in
our judicial system, and permits the public to keep a watchful eye on the workings of public
agenciesa (quotation marks and citations omitted)); Ressam, 221 F. Supp. 2d at 1263 (explaining
that athe general practice of disclosing court orders to the public not only plays a significant role
in the judicial process, but is also a fundamental aspect of our countryas open administration of
justicea).

17

Second, and relatedly, access to this Courtas opinions will improve democratic oversight.
Because the information released to date does not fully describe the constitutional and statutory
bases for the governmentas surveillance activities under FISA, the release of the requested
opinions would permit the publicaand Congress itselfato more properly assess these programs
and to take action accordingly. See generally Br. of Amici Curiae U.S. Representatives Amash et
al. in Support of the Motion of the ACLU and MFIAC for the Release of Court Records, In re
Section 215 Orders, No. 13-02 (FISC June 28, 2013), http://1.usa.gov/1ORRcc4. Members of
Congress have acknowledged the importance of proper oversight, but that oversight has been
impeded by the secrecy surrounding the Courtas interpretations of the governmentas surveillance
powers. See, e.g., Letter from Sens. Dianne Feinstein, Jeff Merkley, Ron Wyden & Mark Udall
to Hon. John Bates, Presiding Judge, FISC (Feb. 13, 2013), http://bit.ly/2eeW0cf. Indeed,
members of this Court have recognized the value of public disclosure of its opinions construing
the governmentas surveillance authority. See, e.g., In re Section 215 Orders, 2013 WL 5460064,
at *7; cf. Ellen Nakashima & Carol D. Leonnig, Effort Underway to Declassify Document that Is
Legal Foundation for NSA Phone Program, Wash. Post, Oct. 12, 2013, http://wpo.st/qsYb1
(a[Judge] Kollar-Kotelly told associates this summer that she wanted her legal argument out,
according to two people familiar with what she said. Several members of the intelligence court
want more transparency about the courtas role to dispel what they consider a misperception that
the court acted as a rubber stamp for the administrationas top-secret spying programs.a). As the
Supreme Court noted in Richmond Newspapers, a[w]ithout publicity, all other checks are
insufficient: in comparison of publicity, all other checks are of small account.a 448 U.S. at 569
(quotation marks omitted) (quoting Jeremy Bentham, Rationale of Judicial Evidence 524
(1827)). In enacting the USA FREEDOM Act, Congress acknowledged these interests and

18

sought to give the public access to the Courtas significant legal pronouncements. See 50 U.S.C.
ASS 1872; 161 Cong. Rec. S2772a01, S2778a79 (statement of Sen. Blumenthal).
Third, allowing the public to review and assess the reasoning of the opinions of this Court
will support more refined judicial decisionmaking in future cases. For example, since public
attention focused on FISA surveillance and this Courtas rulings beginning in June 2013, there has
been a proliferation of highly sophisticated legal and technical debate over the foundations of the
governmentas various national-security surveillance programs. 21 In camera decisionmaking
cannot provide the Court with the same breadth of analysis and expertise, especially over the
long-term, because it does not allow for the same interplay and development of various
viewpoints. The detailed public discussion that has begun today was impossible prior to the
release of this Courtas opinions, and it can only benefit the FISA system.
Fourth, publishing this Courtas opinions of broad legal significance will contribute to the
body of decisional law essential to the functioning of our common-law system. Article III courts
have always built upon the work of their predecessors by refining, reworking, or even, at times,
abandoning decisions issued in the past. See, e.g., Penny v. Little, 4 Ill. (3 Scam.) 301, 304
(1841) (aThe common law is a beautiful system; containing the wisdom and experience of
ages.a). This iterative process lies at the foundation of our legal system but has been stunted by
the continued secrecy of this Courtas significant legal opinions. Other courts should have access
to this Courtas determinations relating to surveillance, new technologies, privacy, and First
Amendment protections so that they may rely on, respond to, or distinguish this Courtas
21

See, e.g., Laura K. Donohue, Section 702 and the Collection of International Telephone and
Internet Content, 38 Harv. J.L. & Pub. Polay 117 (2015), http://www.harvard-jlpp.com/wpcontent/uploads/2015/02/Donohue_Final.pdf; David S. Kris, On the Bulk Collection of Tangible
Things, Lawfare Res. Paper Series (Sep. 29, 2013), http://bit.ly/2eKWyZT; Steven M. Bellovin
et al., Itas Too Complicated: How the Internet Upends Katz, Smith, and Electronic Surveillance
Law, Harv. J. of L. & Tech. (forthcoming 2016), http://bit.ly/2ectB8K.

19

reasoning. 22 Both the FISC and ordinary federal courts have important perspectives to offer on
emerging legal issues related to surveillance that inescapably cut across jurisdictions and even
statutes. That courts might, when permitted to engage in an open and good-faith debate about
such matters, disagreeaor agreeaabout the proper outcomes, is a strength of the common-law
systemanot a reason to keep one jurisdictionas law siloed and unavailable for logical
development. See, e.g., Clapper, 785 F.3d 787; Cent. States, Se. & Sw. Areas Pension Fund v.
Intal Comfort Prods., LLC, 585 F.3d 281, 287 (6th Cir. 2009) (agreeing with the FISCR that it is
important to avoid a asnowballing of precedent unconnected to the aactual statutory language at
issueaa) (citing In re Sealed Case, 310 F.3d 717, 725a27 (FISCR 2002)).
For these reasons, disclosure of this Courtas opinions addressing novel interpretations of
the governmentas surveillance authorities would contribute to the functioning of the FISA system
and benefit the public interest. Cf. In re Section 215 Orders, 2013 WL 5460064, at *7 (stating
that amovants and amici have presented several substantial reasons why the public interest might
be served by the[] publicationa of FISC opinions interpreting Section 215).
*

*

*

In sum, because there is a longstanding American tradition of public access to judicial
opinions; because such access positively contributes to the integrity of the judicial process, the
democratic legitimacy of this Court, and the public understanding of laws passed in its name; and
because the release of the requested opinions and orders would illuminate crucial gaps in the
22

See also, e.g., California v. Carney, 471 U.S. 386, 400a01 (1985) (Stevens, J., dissenting)
(aThe only true rules governing search and seizure have been formulated and refined in the
painstaking scrutiny of case-by-case adjudication. . . . To identify rules that will endure, we must
rely on the state and lower federal courts to debate and evaluate the different approaches to
difficult and unresolved questions of constitutional law. Deliberation on the question over time
winnows out the unnecessary and discordant elements of doctrine and preserves awhatever is
pure and sound and fine.aa (quoting Benjamin Cardozo, The Nature of the Judicial Process 179
(1921))).

20

public knowledge about the legal justifications for its governmentas surveillance activities, the
publicas First Amendment right of access attaches to the Courtas legal opinions containing novel
or significant interpretations of law.
This Court erred in concluding otherwise in denying a 2007 public-access motion brought
by the ACLU. First, by limiting its analysis to whether two previously published opinions of this
Court aestablish a tradition of public access,a the Court took too narrow a view of the
aexperiencea prong of the Supreme Courtas test. See In re Motion for Release of Court Records,
526 F. Supp. 2d at 493 (emphasis omitted). Again, athe aexperiencea test of Globe Newspaper
does not look to the particular practice of any one jurisdiction, but instead to the experience in
that type or kind of hearing throughout the United States.a El Vocero, 508 U.S. at 150 (quotation
marks omitted). Second, the Court erred in concluding that public access would aresult in a
diminished flow of information, to the detriment of the process in question.a See In re Motion for
Release of Court Records, 526 F. Supp. 2d at 496. Instead, disclosure of the requested opinions
would serve weighty democratic interests by informing the governed about the meaning of
public laws enacted on their behalf.
B. The First Amendment requires disclosure of the Courtas opinions containing
novel or significant interpretations of law.
Although the First Amendment right of access is a qualified one, judicial records that are
subject to the right may be kept from the public only upon a rigorous showing. Different
formulations have been used by various courts to define the showing that must be made, but the
governing standard applied by the Supreme Court encompasses four distinct factors:
1. There must be a asubstantial probabilitya of prejudice to a compelling interest. A
party seeking to restrict the right of access must demonstrate a substantial probability that
openness will cause harm to a compelling governmental interest. See, e.g., Press-Enter.
II, 478 U.S. at 13a14; Press-Enter. I, 464 U.S. at 510; Richmond Newspapers, 448 U.S.
at 580a81. In Press-Enterprise II, the Court specifically held that a areasonable
likelihooda standard is not sufficiently protective of the right and that a asubstantial
21

probabilitya standard must be applied. 478 U.S. at 14a15. This standard applies equally
in the context of national security. See In re Wash. Post, 807 F.2d at 392.
2. There must be no alternative to adequately protect the threatened interest. A party
seeking to defeat access must further demonstrate that nothing short of a limitation on the
constitutional right of access can adequately protect the threatened interest. See PressEnter. II, 478 U.S. at 13a14; see also Presley v. Georgia, 558 U.S. 209, 214a15 (2010)
(per curiam) (a[T]rial courts are required to consider alternatives to closure even when
they are not offered by the partiesa and aare obligated to take every reasonable measure
to accommodate public attendance at criminal trials.a); In re Herald Co., 734 F.2d 93,
100 (2d Cir. 1984) (A atrial judge must consider alternatives and reach a reasoned
conclusion that closure is a preferable course to follow to safeguard the interests at
issue.a); Robinson, 935 F.2d at 290.
3. Any restriction on access must be narrowly tailored. Even alegitimate and substantiala
governmental interests acannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved.a Shelton v. Tucker, 364
U.S. 479, 488 (1960). Any limitation imposed on public access thus must be no broader
than necessary to protect the threatened interest. See, e.g., Press-Enter. II, 478 U.S. at
13a14; Lugosch, 435 F.3d at 124; Robinson, 935 F.2d at 287.
4. Any restriction on access must be effective. Any order limiting access must be effective
in protecting the threatened interest for which the limitation is imposed. As articulated in
Press-Enterprise II, the party seeking secrecy must demonstrate athat closure would
preventa the harm sought to be avoided. 478 U.S. at 14; see Robinson, 935 F.2d at 291a
92 (disclosure could not pose any additional threat in light of already publicized
information); In re Herald Co., 734 F.2d at 101 (closure order cannot stand if athe
information sought to be kept confidential has already been given sufficient public
exposurea); United States v. Hubbard, 650 F.2d 293, 322 (D.C. Cir. 1980) (aOne possible
reason for unsealing is that the documents were already made public through other
means.a).
The party seeking to restrict access bears the burden of presenting specific facts that satisfy this
four-part test. See Press-Enter. II, 478 U.S. at 15 (aThe First Amendment right of access cannot
be overcome by [a] conclusory assertion.a).
The government cannot satisfy these strict standards in order to justify withholding the
FISCas significant and novel opinions and orders in full. The proposition that the government has
an interestalet alone a acompellinga oneain preventing disclosure of this Courtas opinions on
novel or significant interpretations of FISA is insupportable. In fact, a public accounting of this
Courtas legal analysis would serve governmental interests by clarifying the scope of the

22

governmentas surveillance powers and the legal reasoning supporting them. See, e.g., Nakashima
& Leonnig, supra (quoting current and former government officials advocating for release of
original FISC bulk-collection opinion). Even the General Counsel of the ODNI has recognized
the importance of publicly discussing the legal framework under which the government conducts
its surveillance programs and of ademystify[ing] and correct[ing] misimpressionsa the public
may have about the governmentas surveillance activities. ODNI, General Counsel Robert Littas
as Prepared Remarks on Signals Intelligence Reform, IC on the Record (Feb. 4, 2015),
http://bit.ly/2e2J1OM.
Of course, portions of the Courtas opinions may be sealed to serve compelling
governmental interestsafor example, to protect intelligence sources and methods that have not
been previously disclosedabut the First Amendment requires the Court itself to ensure that any
redactions are narrowly tailored to serve that interest. Cf. Pepsico, Inc. v. Redmond, 46 F.3d 29,
31 (7th Cir. 1995) (Easterbrook, J.) (aThe judge must make his own decision about what should
be confidential . . . and what may be spoken of openly. I regret that this means extra work for the
judge, but preserving the principle that judicial opinions are available to the public is worth at
least that much sacrifice.a); Nakashima & Leonnig, supra (quoting former senior DOJ attorney
Kenneth Wainstein as arguing that a[e]specially when it comes to legal decisions about big
programs, . . . we can talk about them in a sanitized way without disclosing sources and
methodsa). This Court itself has rejected the governmentas overbroad classification claims in
releasing opinions in the past. See Declassification Order at 6a7, In re Section 215 Orders.
Important to the analysis here will be the numerous disclosures made to date, which provide
critical context for assessing any claim that disclosure of the rulings sought here would harm the
governmentas interests. See, e.g., Merrill v. Lynch, 151 F. Supp. 3d 342, 350 (S.D.N.Y. 2015)

23

(ordering release of details of challenged national-security letter and relying heavily on previous
disclosures to find that the government had anot demonstrated a good reasona to expect harm
would arise as a result of the ordered release); Doe v. Gonzales, 386 F. Supp. 2d 66, 78 (D.
Conn. 2005) (relying in part on athe nature and extent of information about the [national-security
letter] that has already been disclosed by the defendantsa in determining that athe government
has not demonstrated a compelling interest in preventing disclosure of the recipientas identitya).
III.

The Court should order declassification review under Rule 62 and apply the First
Amendment standard to any proposed sealing by the government.
In implementing the constitutional right of access to opinions concerning novel or

significant interpretations of law, the Court should first order the government to conduct a
declassification review of the opinions pursuant to FISC Rule 62(a). See, e.g., In re Section 215
Orders, 2013 WL 5460064, at *7; Declassification Order at 5a7, In re Section 215 Orders
(discussing FISC judgeas review of proposed redactions); Order, In re Application of the FBI for
an Order Requiring the Production of Tangible Things from [Redacted], No. BR 13-109 (FISC
Aug. 23, 2013), http://www.fisc.uscourts.gov/sites/default/files/BR%2013-109%20Order-2.pdf
(discussing sua sponte request by FISC judge to publish memorandum opinion under FISC R.P.
62(a)); In re Directives [Redacted] Pursuant to Section 105B of the Foreign Intelligence
Surveillance Act, 551 F.3d 1004, 1016 (FISCR 2008).
If, after the completion of that review, the government proposes to redact any information
in the Courtas opinions, the Court should set a briefing schedule, requiring the government to
justify how its sealing request meets the constitutional standard set out above, and allowing the
ACLU to contest any sealing it believes to be unjustified. Although the Court should give due
consideration to the governmentas predictive judgments of harm to national security, it should
not simply defer to those judgments or to the results of the governmentas declassification review.

24

See, e.g., In re Wash. Post, 807 F.2d at 392. The First Amendment right of access is a
constitutional right that belongs to the public, and that right can be overcome only upon specific
findings by a court, including a finding that disclosure would risk a substantial probability of
harm to a compelling interest. See supra Part II.B. 23
Independent judicial review of any proposed redactions from this Courtas opinions is
necessary becauseaas was made clear in In re Section 215 Orders when the ACLU moved this
Court for public access to other FISC opinionsathe standards that justify classification do not
always satisfy the strict constitutional standard, and because executive-branch decisions cannot
substitute for the judicial determination required by the First Amendment. Declassification Order
at 10a11, In re Section 215 Orders (applying First Amendment standard to this Courtas review of
the governmentas second redaction proposal). Specifically, information may be classified on a
simple determination by the executive branch that athe unauthorized disclosure of [the
information] reasonably could be expected to cause damage to the national security.a Exec.
Order No. 13,526, 75 Fed. Reg. 707, ASS 1.2(a) (Dec. 29, 2009) (emphasis added). The First
Amendment, however, can be overcome only upon a showing of a asubstantial probabilitya of
harm, a standard that the Supreme Court has specifically held to be more stringent than a
areasonable likelihooda test. Press-Enter. II, 478 U.S. at 14. Moreover, under the classification
regime, the executive branch alone decides whether to consider the publicas interest in
disclosure, and it does so only in aexceptional cases.a Exec. Order No. 13,526 ASS 3.1(d). Applying
that standard to judicial records would flatly contradict the First Amendment right of access,

23

In evaluating the governmentas declassification review of FISC opinions in response to the
ACLUas prior motion in this Court, the Court noted that the governmentas proposed redactions
apasse[d] mustera under the First Amendment standard, even while declining to reach the
ultimate question whether the First Amendment right of access applied. See Declassification
Order at 9, n.10, In re Section 215 Orders.

25

which presumes that the publicas interest is in disclosure, and permits sealing only if there are no
less-restrictive alternatives and if the limitation on access is narrowly tailored.
Indeed, judicial intervention in and oversight of government declassification of sealed
judicial opinions has led to the release of additional information to which the public was entitled.
In In re Section 215 Orders, after this Court ordered a declassification review of a FISC opinion,
the government determined that the opinion should be awithheld in full,a but the FISC judge
demanded aa detailed explanationa of why the opinion could not be released in redacted form.
Order, In re Section 215 Orders, No. Misc. 13-02 (FISC Nov. 20, 2013),
http://1.usa.gov/258tRH8. In response, the government agreed to release the opinion in redacted
form, but it took multiple proposals before this Court was satisfied that all redactions were
sufficiently narrowly tailored. Declassification Order at 5a7, In re Section 215 Orders
(describing this Courtas back-and-forth with the government on proposed redactions to the
opinion). Similarly, careful judicial review of redactions in other cases has led to greater
disclosure than the government initially proposed. See, e.g., Order, In re Directives Pursuant to
ASS 105B of FISA, No. 105B(g) 07-01 (FISC Feb. 5, 2016), http://1.usa.gov/1OIbC1C (ordering the
government to respond to FISC judgeas concerns aabout the scope of certain proposed
redactionsa in response to an earlier order to conduct a declassification review of documents
filed in the case).
Furthermore, whether the publicas constitutional right of access is outweighed by a
compelling interest in continued sealing is a question for the courts, not one that rests with the
executive. See Press-Enter. II, 478 U.S. at 13a14. As the Fourth Circuit has forcefully explained,
[T]roubled as we are by the risk that disclosure of classified information could
endanger the lives of both Americans and their foreign informants, we are equally
troubled by the notion that the judiciary should abdicate its decisionmaking
responsibility to the executive branch whenever national security concerns are

26

present. History teaches us how easily the spectre of a threat to anational securitya
may be used to justify a wide variety of repressive government actions. A blind
acceptance by the courts of the governmentas insistence on the need for secrecy,
without notice to others, without argument, and without a statement of reasons,
would impermissibly compromise the independence of the judiciary and open the
door to possible abuse.
In re Wash. Post, 807 F.2d at 391a92; see United States v. Hershey, 20 M.J. 433, 436 (C.M.A.
1985) (a[E]ven when the interest sought to be protected is national security, the Government
must demonstrate a compelling need to exclude the public . . . .a (emphasis omitted)); United
States v. Grunden, 2 M.J. 116, 122 (C.M.A. 1977) (although classification and the policy
determinations it involves aare not normal judicial functions, immunization from judicial review
cannot be countenanced in situations where strong countervailing constitutional interests exista).
In other contexts, too, courts routinely scrutinize executive-branch classifications. See,
e.g., Campbell v. DOJ, 164 F.3d 20, 30 (D.C. Cir. 1999); Goldberg v. DOS, 818 F.2d 71, 76
(D.C. Cir. 1987). This principle is not controversial, and in other forums, the government has
expressly accepted it. See, e.g., Final Reply Br. for Appellants at 8 n.1, Ctr. for Intal Envtl. Law
v. Office of the U.S. Trade Rep., No. 12-5136 (D.C. Cir. Nov. 27, 2012), 2012 WL 5940305
(clarifying that the government has not asuggested that the Executiveas determination that a
document is classified should be conclusive or unreviewablea).
For these reasons, merely ordering discretionary release under Rule 62(a) after executive
declassification review would not satisfy the constitutional right of access. The Court should thus
order declassification review as a first step and then test any sealing proposed by the government
against the standard required by the First Amendment. Of course, even if the Court holds that the
First Amendment right of access does not attach to the legal opinions requested by Movant, it
should nonetheless exercise its discretionaas it has in the past and in the public interestato

27

order the government to conduct a declassification review of its opinions pursuant to Rule 62.
See, e.g., In re Section 215 Orders, 2013 WL 5460064, at *7.
CONCLUSION
For the foregoing reasons, Movant respectfully requests that this Court unseal its
opinions and orders containing novel or significant interpretations of law, including but not
limited to those described in the Appendix, with only those limited redactions that satisfy the
strict test to overcome the constitutional right of access.

Dated: October 18, 2016

Respectfully submitted,
/s/ Patrick Toomey
Patrick Toomey
Brett Max Kaufman
Alex Abdo
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Phone: (212) 549-2500
Fax: (212) 549-2654
ptoomey@aclu.org

David A. Schulz
Hannah Bloch-Wehba
John Langford
Media Freedom & Information Access Clinic *
Abrams Institute
Yale Law School
P.O. Box 208215
New Haven, CT 06520
Phone: (203) 436-5827
Fax: (203) 432-3034
dschulz@lskslaw.com

Arthur B. Spitzer
Scott Michelman
American Civil Liberties Union
of the Nationas Capital
4301 Connecticut Avenue, N.W., Suite 434
Washington, D.C. 20008
Phone: (202) 457-0800
Fax: (202) 457-0805
artspitzer@aclu-nca.org
Counsel for Movant
*

This motion was prepared in part by the Media Freedom and Information Access Clinic, a
program of the Abrams Institute for Freedom of Expression at Yale Law School. The motion
does not purport to express the Schoolas institutional views, if any. Yale Law School students
assisting on the papers: Andrew Udelsman a17, Regina Wang a18.

28

CERTIFICATE OF SERVICE
I, Patrick Toomey, certify that on this day, October 18, 2016, a copy of the foregoing
motion was served on the following persons by the methods indicated:
By email and UPS overnight delivery
Daniel Hartenstine
Litigation Security Group
U.S. Department of Justice
2 Constitution Square
145 N Street, N.E.
Suite 2W-115
Washington, DC 20530
Daniel.O.Hartenstine@usdoj.gov
By UPS overnight delivery
Loretta E. Lynch
Attorney General
Office of the Attorney General
U.S. Department of Justice
National Security Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
John P. Carlin
Assistant Attorney General for National Security
U.S. Department of Justice
National Security Division
950 Pennsylvania Ave., N.W.
Washington, DC 20530

/s/ Patrick Toomey
Patrick Toomey

APPENDIX
Undisclosed Opinions and Orders of the Foreign Intelligence Surveillance Court
Issued Between September 11, 2001, and June 2, 2015
Date
1

2

1

2015

Subject of Opinions
or Orders
Authorizing bulk
searches of incoming
Yahoo! email for a
computer asignaturea
pursuant to FISA

Addressing the
governmentas use of
malwareafor example,
NITs and Computer
and Internet Protocol
Address Verifiers
(aCIPAVsa or
aIPAVsa)

Source Identifying
Opinions or Orders
Charlie Savage &
Nicole Perlroth,
Yahoo Said to Have
Aided U.S. Email
Surveillance by
Adapting Spam
Filter, N.Y. Times
(Oct. 5, 2016). 1

Description
aA system intended to scan emails for child pornography and spam
helped Yahoo satisfy a secret court order requiring it to search for
messages containing a computer asignaturea tied to the
communications of a state-sponsored terrorist organization. . . .a
aTwo government officials who spoke on the condition of
anonymity said the Justice Department obtained an individualized
order from a judge of the Foreign Intelligence Surveillance Court
last year.a

FBI records released The FBI emails describe, for example, the use of the aIPAV toola in
via FOIA, including aboth criminal and FISA cases.a
FBI email dated Dec.
8, 2004. 2

Available at: http://nyti.ms/2dFsC0q.

2

Available at: https://www.eff.org/files/filenode/cipav/fbi_cipav-01.pdf (PDF page 5). See also https://www.eff.org/files/filenode/cipav/fbi_cipav08.pdf; https://www.eff.org/files/filenode/cipav/fbi_cipav-15.pdf.

1

Date
3

4

5

2009

Subject of Opinions
or Orders

Source Identifying
Opinions or Orders

Addressing the use of
FISA or Section 702 to
compel private
companies to provide
technical assistance,
including measures that
weaken or circumvent
encryption

Glenn Greenwald,
Microsoft Handed the
NSA Access to
Encrypted Messages,
Guardian, July 12,
2013. 3

The report describes assistance provided by technology companies
to facilitate NSA and FBI access to encrypted communications of
their users and quotes a joint statement by NSA and ODNI officials:

Addressing the use of
FISA to compel the
disclosure of source
code by technology
companies

Zack Whittaker, US
Government Pushed
Tech Firms to Hand
Over Source Code,
ZDNet, Mar. 17,
2016. 4

aThe US government has made numerous attempts to obtain source
code from tech companies in an effort to find security flaws that
could be used for surveillance or investigations.a

Addressing the use of
acybersignaturesa and
Internet Protocol
addresses to conduct
FISA and Section 702
surveillance

Charlie Savage et al.,
Hunting for Hackers,
N.S.A. Secretly
Expands Internet
Spying at U.S.
Border, N.Y. Times,
June 4, 2015. 5

aAbout that time [in May 2009], the documents show, the N.S.A.a
whose mission includes protecting military and intelligence
networks against intrudersaproposed using the warrantless
surveillance program for cybersecurity purposes. The agency
received aguidance on targeting using the signaturesa from the
Foreign Intelligence Surveillance Court, according to an internal
newsletter.a

Description

aThe article[] describe[s] court-ordered surveillanceaand a US
companyas efforts to comply with these legally mandated
requirements.a

aThe government has demanded source code in civil cases filed
under seal but also by seeking clandestine rulings authorized under
the secretive Foreign Intelligence Surveillance Act (FISA), a person
with direct knowledge of these demands told ZDNet.a

3

Available at: https://www.theguardian.com/world/2013/jul/11/microsoft-nsa-collaboration-user-data.

4

Available at: http://www.zdnet.com/article/us-government-pushed-tech-firms-to-hand-over-source-code/.

5

Available at: http://www.nytimes.com/2015/06/05/us/hunting-for-hackers-nsa-secretly-expands-internet-spying-at-us-border.html.

2

Date
6

Subject of Opinions
or Orders

Source Identifying
Opinions or Orders

2011 and Addressing FISA
NSA, Memorandum
earlier
surveillance directed at re: SSOas Support to
computer intrusions
the FBI for
Implementation of
their Cyber FISA
Orders 1a2 (Mar. 27,
2012). 6

7

Addressing the use of
astingraysa or cell-site
simulator technology
pursuant to FISA.

8

February Addressing First
and March Amendment
2006
restrictions on Section
215 surveillance

Description
aThe FISC has issued a number of orders at the request of the FBI
authorizing electronic surveillance directed at communications
related to computer intrusions being conducted by foreign powers.
The orders include some that are limited to pen register/trap and
trace (PR/TT) as well as other that authorize collection of content.a

DOJ, Policy
Guidance: Use of
Cell-Site Simulator
Technology 1 n.1
(Sept. 3, 2015). 7

aWhen acting pursuant to the Foreign Intelligence Surveillance Act,
Department of Justice components will make a probable-cause
based showing and appropriate disclosures to the [FISC] in a
manner that is consistent with the guidance set forth in this policy.a

DOJ Office of the
Inspector General, A
Review of the FBIas
Use of Section 215
for Business Records
in 2006 at 68 (Mar.
2008). 8

aThe Section 215 request was presented to the FISA Court as a read
copy application in February and March 2006. On both occasions
the Court declined to approve the application and order. . . . OIPR
and NSLB e-mails state that the FISA Court decided that athe facts
were too thin and that this request implicated the targetas First
Amendment rights.aa

6

Available at: http://www.nytimes.com/interactive/2015/06/04/us/document-cyber-surveillance-documents.html (PDF pages 5a6).

7

Available at: https://www.justice.gov/opa/file/767321/download.

8

Available at: https://assets.documentcloud.org/documents/1385905/savage-nyt-foia-doj-ig-reports-patriot-act.pdf#page=187 (PDF page 187).

3

Date
9

Subject of Opinions
or Orders
Addressing the
collection of location
information under
FISA or Section 215

Source Identifying
Opinions or Orders
Charlie Savage, In
Test Project, N.S.A.
Tracked Cellphone
Locations, N.Y.
Times, Oct. 2, 2013. 9

Description
Director of National Intelligence James Clapper said that athe
N.S.A. had promised to notify Congress and seek the approval of a
secret surveillance court in the future before any locational data was
collected using Section 215.a
Senator Ron Wyden, a member of the Intelligence Committee, said
that a[a]fter years of stonewalling on whether the government has
ever tracked or planned to track the location of law-abiding
Americans through their cellphones, once again, the intelligence
leadership has decided to leave most of the real story secretaeven
when the truth would not compromise national security.a

10

Addressing FISAas
criminal penalties
provision, 50 U.S.C.
ASS 1809(a)

October 3, 2011
FISC Opinion at 17
n.15. 10

FISC opinion aconcluding that Section 1809(a)(2) precluded the
Court from approving the governmentas proposed use of, among
other things, certain data acquired by the NSA without statutory
authority through its aupstream collection.aa

11

Addressing bulk
collection of financial
records by the CIA and
FBI under Section 215

Siobhan Gorman et
al., CIAas Financial
Spying Bags Data on
Americans, Wall St.
J., Jan. 25, 2014. 11

aThe program, which collects information from U.S. moneytransfer companies including Western Union, is carried out under
the same provision of the Patriot Act that enables the National
Security Agency to collect nearly all American phone records, the
officials said. Like the NSA program, the mass collection of
financial transactions is authorized by a secret national-security
court, the Foreign Intelligence Surveillance Court.a

9

Available at: http://www.nytimes.com/2013/10/03/us/nsa-experiment-traced-us-cellphone-locations.html.

10

Available at: https://www.aclu.org/sites/default/files/field_document/October 2011 John Bates FISC Opinion.pdf.

11

Available at: http://on.wsj.com/1dO2n2T.

4

Date

Subject of Opinions
or Orders

Source Identifying
Opinions or Orders

Description

12 August 20, Addressing NSA
2008 12 queries of records
collected in bulk

Declaration of
Jennifer L. Hudson
AP 40a46, ACLU v.
FBI, No. 11-cv07562 (S.D.N.Y.
Apr. 4, 2014) (ECF
No. 87).

aThe August 2008 FISC Opinion addresses the NSAas use of a
specific intelligence method in the conduct of queries of telephony
metadata or call detail records. . . .a

13

October
2006;
February
2006;
December
2005 13

Addressing collection
of records under
Section 215, including
collection of records in
bulk

See, e.g., Elec.
Opinions or orders previously identified by the government
Frontier Found. v.
pursuant to FOIA as containing asignificanta legal interpretations of
DOJ, No. 11-cvSection 215.
05221, 2014 WL
3945646, at *2 (N.D.
Cal. Aug. 8, 2014).

14

2013

Addressing
unauthorized NSA
surveillance

NSA, Memorandum
for the Chairman,
Intelligence
Oversight Board at
10a11 (May 16,
2013). 14

a[Redacted] NSA notified Congressional intelligence committees
about the FISCas opinion relating to [redacted]. NSA purged the
unauthorized collection and recalled all reporting based on those
communications. [Redacted] the FISC authorized such collection to
be undertaken prospectively.a

12

This Court previously denied without prejudice the ACLUas motion for disclosure of this opinion because the same record was at issue in thenpending FOIA litigation. See In re Section 215 Orders, No. Misc. 13-02, 2013 WL 5460064, at *6a7 (FISC Sept. 13, 2013). The district court
ultimately declined to order disclosure of the August 20, 2008 opinion under FOIA. See ACLU v. FBI, No. 11-cv-07562, 2015 WL 1566775
(S.D.N.Y. Mar. 31, 2016). Accordingly, the ACLU renews its request for disclosure of the opinion based upon the First Amendment right of
access and the grounds set forth in this motion.

13

The district court in ACLU v. FBI, 2015 WL 1566775, declined to order disclosure of the October 2006 records to the ACLU under FOIA.

14

Available at: https://www.aclu.org/sites/default/files/field_document/May%2016%2C%202013%20-%20Report%20to%20the%20Presidents%20Intelligence%20Oversight%20Board%20-%202Q%20FY%202013_0.pdf.

5

Subject of Opinions
or Orders

Source Identifying
Opinions or Orders

Addressing changes to
2013 NSA
minimization
procedures for Section
702 surveillance

NSA Office of the
Inspector General,
Implementation of
ASS 215 of the USA
PATRIOT Act and
ASS 702 of the FISA
Amendments Act of
2008 (dated Feb. 20,
2015). 15

aAn amendment to the Minimization procedures was made in late
2013. A section was added precluding NSA from using information
acquired pursuant to FAA ASS702 unless NSA determines, based on
the totality of the circumstances, that the target is reasonably
believed to be outside the United States at the time the information
was acquired.a

16 August 30, Addressing sharing of
2013
Section 702
information with
private entities to
mitigate computer
intrusions

August 26, 2014
FISC Opinion at 18a
19 n.19. 16

aThe FISC approved the current version of this provision under
Section 702 on August 30, 2013. See August 30, 2013 Opinion at
17a19.a

17 September Addressing sharing of
20, 2012 Section 702
information with
private entities to
mitigate computer
intrusions

August 26, 2014
FISC Opinion at 18
n.19. 17

aThe FISC first approved a version of this provision under Section
702 on September 20, 2012, in connection with a prior Section 702
certification. See [Redacted] Memorandum opinion entered on Sept.
20, 2012, at 22 (aSeptember 20, 2012 Opiniona). At that time, the
FISC noted that the provision at issue [redacted].a

Date
15

2013

Description

15

Available at: https://assets.documentcloud.org/documents/2712306/Savage-NYT-FOIA-IG-Reports-702-2.pdf (PDF page 312).

16

Available at: https://www.aclu.org/sites/default/files/field_document/fisc_opinion_and_order_re_702_dated_26_august_2014_ocrd.pdf.

17

Available at: https://www.aclu.org/sites/default/files/field_document/fisc_opinion_and_order_re_702_dated_26_august_2014_ocrd.pdf.

6

Date
18

19

2008 to
2010

Subject of Opinions
or Orders

Source Identifying
Opinions or Orders

Description

Addressing NSAas
targeting and
minimization
procedures for Section
702 surveillance

NSA Office of the
Inspector General,
Final Report of the
Audit on the FISA
Amendments Act
ASS 702 Detasking
Requirements (dated
Nov. 24, 2010). 18

aAlthough this section of the draft report notes that the FISC has
expressed aconcerna about the modifications the Government
proposed [redacted] to NSAas FAA 702 targeting and minimization
procedures, the report fails to note that the Courtas concern was
with the [redacted] issue. [The Office of General Counsel]as
understanding is that the Court concluded that even the modest
changes proposed [redacted] to address one aspect of the [redacted]
were incompatible with the current statutory framework.a

Addressing FISA penregister surveillance
and/or collection of
post-cut through dialed
digits

See, e.g., Second
Decl. of David M.
Hardy APAP 10a13,
Elec. Privacy Info.
Ctr. v. DOJ, No. 13cv-1961 (D.D.C.
Nov. 7, 2014), ECF
No. 24-1. 19

aThe FISC orders discuss classified investigative information
regarding the underlying FISA applications, the type and character
of information to be collected through the PR/TT order as well as
details regarding that particular FISC court proceeding.a

20 December Addressing retention of November 6, 2015
10, 2010 information obtained
FISC Opinion at 56a
through unauthorized
57. 20
electronic surveillance

aOpinion and Order Regarding Fruits of Unauthorized Surveillance
issued on December 10, 2010.a

18

Available at: https://assets.documentcloud.org/documents/2712306/Savage-NYT-FOIA-IG-Reports-702-2.pdf (PDF page 53).

19

Available at: https://epic.org/foia/doj/pen-reg-trap-trace/24-Second-Hardy-Decl.pdf.

20

Available at: https://www.dni.gov/files/documents/20151106-702Mem_Opinion_Order_for_Public_Release.pdf.

7

Date

Subject of Opinions
or Orders

Source Identifying
Opinions or Orders

Description

21

May 13,
2011

Requiring destruction November 6, 2015
of information obtained FISC Opinion at 57a
through unauthorized
58. 21
electronic surveillance

aOpinion and Order Requiring Destruction of Information Obtained
by Unauthorized Electronic Surveillance issued on May 13, 2011.a

22

2007 or
earlier

Authorizing
surveillance of targets
outside the United
States prior to the
Protect America Act

January 15, 2008
FISC Opinion at 3
n.1. 22

aPrior to the PAA, the government had argued that, in some
contexts, surveillances of targets outside the United States did
constitute electronic surveillance as defined by FISA, such that the
FISC had jurisdiction. The FISC judges concluded that they did
have jurisdiction over certain types of such surveillances.a

Addressing the scope
of searches and
seizures of electronic
data, including
computer hard-drives
and other large data
repositories, and
applicable
minimization
requirements

See, e.g., FBI,
Standard
Minimization
Procedures for FBI
Electronic
Surveillance and
Physical Search
Conducted under
FISA (Nov. 1,
2008). 23

The FISC reviews and approves rules governing electronic
surveillance and physical searches for foreign-intelligence purposes,
including searches and seizures of electronic data that may
encompass large volumes of personal information.

23

21

Available at: https://www.dni.gov/files/documents/20151106-702Mem_Opinion_Order_for_Public_Release.pdf.

22

Available at: https://cdt.org/files/2014/09/49-yahoo702-memorandum-opinion-and-order-dni-ag-certification.pdf.

23

Available at: https://www.aclu.org/files/pdfs/natsec/faafoia20101129/FAAFBI0707.pdf.

8