Case: In re Motion of ProPublica, Inc. for the Release of Court Records [FISC Docket Misc. 13-09]

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On January 17, 2014, the Director of National Intelligence authorized the declassification and public release of numerous orders approving the National Security Agency's ("NSA") so-called "Bulk Telephony Metadata Program" under Section 501 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), commonly referred to as Section 215 of the USA PATRIOT Act. The Director's press release is available here.

Under the program, the NSA had collected records from large telecommunication companies about, allegedly, virtually all domestic telephone calls. These records, termed "telephony metadata," included the phone numbers placed and received; the date, time and duration of calls; some location identifiers; and calling card numbers. The records, however, did not include the parties' names, addresses or financial information or the call's content.

The program began under executive authority alone following the September 11, 2001 terrorist attacks. Subsequently, in 2006, the federal government first sought approval of the program from the Foreign Intelligence Surveillance Court ("FISC") under Section 215 of the USA PATRIOT Act, and the court approved it on May 24, 2006. Section 215 orders must be reviewed and reapproved by the FISC every 90 days; the order approving the program was reapproved dozens of times by the FISC. For more information on the program, see BR 06-05.

On November 12, 2013, ProPublica, represented by the Electronic Frontier Foundation, filed a motion in the FISC for release of court records, including opinions that were referenced in, but redacted from, an August 29, 2013 opinion in FISA docket BR 13-109. (That case involved an order reauthorizing the collection of telephone metadata. See BR 13-109 for more information.) ProPublica argued that the First Amendment compelled release of the judicial decisions and that FISC Court Rule 62 granted the FISC discretion to publish its own orders, opinions, and decisions. ProPublica sought this information to ascertain "FISC's ultimate authority for the bulk collection of records." ProPublica's motion also rooted its argument in the First Amendment, saying that a "brisk evolution" in FISC caselaw toward disclosure of opinions was moving it more in line with traditional Article III courts, which allow disclosure in most instances. As a result, the caselaw ProPublica was seeking should be disclosed, per this argument. In addition, ProPublica mentioned a procedural fairness argument under the First Amendment, saying that public disclosure would make future FISA opinions more fair as readers of publicized opinions would know how to argue before the court.

The government argued that the redacted opinions referenced in the August 29, 2013 opinion should not be disclosed because they had already been subjected to a classification review and thus there was no basis for FISC to order a new classification review.

In December 2013, FISC Judge Reggie Walton granted the motion of the Reporters Committee for Freedom of the Press and a group of 25 media organizations to file a brief as amici curiae. They noted that the news media plays an important role in preventing government misconduct through open access to court records under the First Amendment, and that if these documents were still sealed, the news media would have issues accessing them and, potentially, holding government accountable for excessive surveillance. The amici added that disclosure would improve faith in government and that decisions on surveillance were fairly made, too.

Between December 2013 and September 2020, no new documents were added to this docket. It appears that similar matters continued in dockets Misc. 13-02 and Misc. 13-08.

However, on September 15, 2020, FISC Judge James E. Boasberg dismissed ProPublica's motion due to lack of jurisdiction. The order discussed a similar motion that the American Civil Liberties Union and the Media Freedom and Information Access Clinic had filed in a different case from 2013 (Misc. 13-08), which sought classified judicial opinions about bulk collection.  In both cases, the parties pointed to FISC Rule 62 and the First Amendment right of access as the source of the FISC’s jurisdiction over their claims. 

Addressing the motion in that related case, the United States Foreign Intelligence Surveillance Court of Review (FISCR) had held that courts created by FISA lack subject matter jurisdiction to address constitutional claims, so they cannot rule on First Amendment claims. That court also declined to exercise ancillary jurisdiction over the constitutional claims. Additionally, it held that the petitioners in that case were not the type of party that FISA allowed to petition FISCR. Finally, it noted that the disclosure of classified information should remain within the discretion of the President. 957 F.3d 1344.

For the same reasons, Judge Boasberg dismissed ProPublica’s motion, as the FISC lacked subject matter jurisdiction to rule on it. 2020 WL 5637412.

In November 2021, the Supreme Court declined to hear a case involving a similar issue, leaving in place a FISCR decision that applied the Misc. 13-08 opinion.