ProPublica’s coverage of government surveillance, both before and since The Summer of Snowden, has been thorough and revelatory—and it’s far from finished. Last week, ProPublica announced that it was filing a motion in the Foreign Intelligence Surveillance Court (FISC), seeking access to certain sealed court opinions. The right-of-access motion, filed through counsel at the Electronic Frontier Foundation, argues that the public has a First Amendment right to see the court’s legal justifications for bulk data collection.
ProPublica is certainly no stranger to FOIA requests of government records, nor right-of-access motions in courts, but this is the first motion of this kind it has filed on the topic of NSA surveillance, according to ProPublica president Richard Tofel. In this situation, he says, the extra step seemed well worth it.
“We don’t litigate just to make a point,” says Tofel. “We tend to do this only when we think we have a decent chance of success, and when the subject is important, and one of continuing interest.”
Tofel isn’t alone in thinking so. This past June, shortly following an early Snowden scoop about the collection of Verizon customer phone records, the ACLU and the Yale Law School’s Media Freedom and Information Access (MFIA) Clinic both filed a motion in the same court. The Guardian had published the “top secret court order” that had compelled Verizon to hand over its customers’ data to the NSA, an order that referenced the authority of Section 215 of the Patriot Act. What the ACLU and the MFIA Clinic wanted to get from the court was the court opinions that would explain “the meaning, scope, and constitutionality of Section 215.” In other words, how far did this all go, and what interpretation of the law made it legal?
In the months that followed, as Snowden revelations continued to flood the world’s front pages, the court did order a “declassification review” of the documents that the ACLU and MFIA had requested. They still didn’t have the documents in hand, but they saw it as an important first step. That partial success is what encouraged ProPublica’s counsel at EFF, David Greene, to pursue a similar motion on ProPublica’s behalf. (Also this month, the ACLU and MFIA followed up their first motion with a second, more narrow filing, for more documents specifically concerning the authorization of the bulk collection of metadata.)
Legally speaking, the argument that ProPublica is making in its motion isn’t any different than the ones that the ACLU and MFIA have already made, or that an individual citizen could have made. ProPublica (or any news organization) does not have a stronger claim to the First Amendment than an individual or an advocacy organization.
What makes the FISC unusual—and frustrating—among courts is that its opinions are sealed from the public. When it does release some opinions, as it did in September in response to the first ACLU/MFIA motion, those opinions may contain references to other opinions, which are themselves still sealed. All of this makes it difficult for journalists, lawmakers, and everyone else to understand the full story.
David Greene’s motion written on behalf of ProPublica includes a useful metaphor: “Like nesting dolls, the opinions that have been released thus far merely cite to redacted opinions, and when those opinions are released, they too cite to and rely on other redacted opinions,” he writes. In an interview this week, Greene says that this is typical.
“We never know what we’re going to find when we open up the next nesting doll,” says Greene. “But we’re hopeful that maybe this is it—that we’ve reached the smallest one.”
The Justice Department is scheduled to respond to the motion in December. No one wants to venture to say what the outcome will be, however, and there aren’t too many precedents that could help predict it. The ACLU, for one, has filed a handful of motions in the FISC court in the past decade or so, all of which were ultimately denied—but they don’t think that necessarily means anything.
“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.”