Civil liberties organisations have petitioned the Supreme Court to make decisions of the secretive court that oversees bulk email collection, warrantless internet searches, and other government monitoring programmes available to the public.
In an appeal filed with the high court on Monday, the groups argue that the public has a fundamental right to see major Foreign Intelligence Surveillance Court decisions. They further contend that it is up to the courts, not the executive branch, to determine when views that might impact millions of Americans’ privacy should be made public.
Theodore Olson, the American Civil Liberties Union, Columbia University’s Knight First Amendment Institute, and Yale Law School’s Media Freedom and Information Access Clinic filed the appeal. Olson is a member of the Knight Institute’s board of directors and served as the Bush administration’s top Supreme Court lawyer as the FISA court’s position was expanded following the terrorist attacks of September 11, 2001.
“You’re dealing with court rulings that will have a huge impact on millions of people. In an interview with The Associated Press, Olson said, “The public needs to know the broad strokes of what those decisions are and how far they go.” “I know the government, for the best of intentions, would err on the side of keeping everything hidden because of my familiarity with it.”
The Foreign Intelligence Surveillance Court was established in 1978 to hear FBI requests to listen in on people it suspects of being foreign intelligence agents, such as suspected spies or terrorists. Following the September 11 attacks, Congress extended the court’s jurisdiction to include extensive surveillance programmes.
Judges have recently ruled that the views requested by the organisations should not be made public, except in censored form, and that they lacked the authority to even suggest doing so.
A clause of legislation passed in 2015 allows the government to consider publishing major FISA court opinions. However, the statute does not extend to judgments written before it was passed, and the executive branch is solely responsible for the review process.
According to the appeal, the First Amendment’s guarantee to press freedom necessitates greater access.
The Justice Department did not respond to a request for comment on the filing on Monday. It must respond to the court by the end of May.
For years, the ACLU has been requesting FISA court decisions, and the latest case dates back to 2016.
“These judgments and orders discuss, among other things, the legality of bulk email searches, the government’s authority to instal malware on Americans’ computers without their knowledge, and the use of warrantless internet surveillance for cybersecurity purposes,” according to the appeal.