“We think that these motions have a stronger likelihood of succeeding because the public interest in the disclosure of these materials is even higher now,” says Patrick Toomey, one of the attorneys working on this case for the ACLU.

Max Mishkin, a student co-director of the MFIA Clinic who has been working on the case, also raises another reason to be optimistic: a “friend of the court” brief that several members of Congress filed in support of their initial motion for access over the summer. It turned out that the lawmakers, too, were having trouble getting enough access to make informed decisions about the very law that they were charged with debating, and likely renewing.

“As Congress considers whether to reauthorize one of the government’s principal surveillance tools—Section 215 of the Patriot Act—in two years, it is crucial for Congress to fully understand how the law is being utilized and where it can be clarified or improved,” read the brief, which was signed by 16 members of Congress.

“The fact that our lawmakers have had trouble finding out what these opinions say—I think was a very powerful point for them to make,” says Mishkin.

The impact of having ProPublica file a parallel motion also remains to be seen. Tofel says that their motivation to file an additional motion was that they “wanted to maximize the chances that the documents would be released.” While ProPublica’s participation may help emphasize to the court the need for access to this information, though, it won’t necessarily make a difference to have a news organization making the request, says MFIA Clinic student co-director Patrick Hayden.

But, says the ACLU’s Patrick Toomey, that’s the way it should be. Otherwise, “that would be quite damaging to the First Amendment,” he says. “Courts shouldn’t be distinguishing between one person who wants to witness a trial that’s going on at the courthouse down the street from a journalist’s interest in attending that trial. Both have a right to witness those proceedings, and to access the judicial opinions generated by the courts.”


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Lauren Kirchner is a freelance writer covering digital security for CJR. Find her on Twitter at @lkirchner