First Ever En Banc FISA Court Review Gives Plaintiffs Standing To Challenge Surveillance Program Secrecy

from the How-I-Learned-To-Stop-Worrying-And-Love-The-Adversarial-Process dept

One more thing we can give Ed Snowden credit for: the possibility we may be seeing even more public access to FISA court opinions and other FISA docs in the future. [h/t Mike Scarcella]

There's still a long way to go procedurally, but this latest ruling from the FISA court will allow a First Amendment lawsuit by the ACLU and the Yale Law School Media Freedom and Information Access Clinic to move forward. Being granted the standing to actually challenge government surveillance is a rarity. The cover of national security darkness has prevented many plaintiffs from being able to allege harm, but the Snowden leaks have provided many public entities the information they need to shore up these allegations.

The FISA court review process behind this opinion is itself a unicorn: it's an en banc review of the plaintiffs' challenge -- the first time this has ever happened in the history of the court. The opinion [PDF] notes the rarity of the occasion as well as acknowledges the significant "standing" hurdle the plaintiffs were facing.

Figuring out whether a plaintiff has standing to bring a novel legal claim can feel a bit like trying to distinguish a black cat in a coal cellar. "Although the two concepts unfortunately are blurred at times, standing and entitlement to relief are not the same thing. Standing is a prerequisite to filing suit, while the underlying merits of a claim ... determine whether the plaintiff is entitled to relief." Arreola v. Godinez, 546 F.3d 788, 794-95 (7th Cir. 2008). The Initial Opinion in this action decided that Movants -- the American Civil Liberties Union and Yale Law School's Media Freedom and Information Access Clinic -- had suffered no injury-in-fact and thus lacked standing to bring their First Amendment claim for access to redacted portions of certain of this Court's opinions. Sitting en banc for the first time in our history, we now vacate that decision. Whatever the merits of Movants' suit, we conclude that they have asserted a sufficient injury-in-fact to pursue it.

Shortly thereafter, the judges tip their hats to Snowden.

By necessity, this Court conducts much of its work in secrecy. But it does so within a judicial system wedded to transparency and deeply rooted in the ideal that "justice must satisfy the appearance of justice." Levine v. United States, 362 U.S. 610, 616 (1960). It comes as no surprise, then, that members of the public may at times seek to challenge whether certain controversies merit our continued secrecy or, instead, require some degree of transparency. The matter before us was born from two such challenges. On June 6, 2013, two newspapers released certain classified information about a surveillance program run by the Government since 2006. Within a day, the Director of National Intelligence declassified further details about this bulk-data-collection program, acknowledging for the first time that this Court had approved much of it under Section 215 -- the "business records" provision -- of the Patriot Act, 50 U.S.C. § 1861.

From there sprung the First Amendment challenge: the plaintiffs argued the Snowden leaks stripped away the justification for continued secrecy by the government. They argued the ongoing refusal to hand over the government's legal justification of the program -- as approved by the FISA court -- violated the First Amendment "right of access" to courtroom proceedings and documents.

As more documents were leaked, the right to access argument grew stronger -- especially when the leaks were followed by official government acknowledgement of each program's existence and, in some cases, the official release of other documents by the government itself.

The court now agrees -- after en banc review -- that the alleged harm is sufficient enough to move forward with its lawsuit against the government. It also notes that the granting of standing doesn't pass any judgment on the merits of the arguments, other than to acknowledge the plaintiffs have the right to pursue them. (In other words, courts will entertain arguments destined for doom, but denying doomed arguments upfront would violate other rights.)

A plaintiff, for instance, might lack standing "to complain about his inability to commit crimes because no one has a right to a commit a crime," and no Court could recognize such an interest. Citizen Ctr. v. Gessler, 770 F.3d 900, 910 (10th Cir. 2014). On the other hand, he would have standing to bring colorable First Amendment claims, even if he would ultimately lose on the merits.

[...]

Indeed, were we to define rights with any greater level of specificity, no plaintiff would have standing to challenge established First Amendment precedent. This is certainly not the case.

[...]

At bottom, the legally-protected-interest test is not concerned with determining the proper scope of the First Amendment right or whether a plaintiff is correct that such right has in fact been invaded; that is a merits inquiry. Waukesha, 320 F.3d at 235. The test instead seeks only to assess whether the interest asserted by the plaintiff is of the type that "deserve[s] protection against injury."

[...]

Against this backdrop, the sufficiency of Movants' allegation of such a legally protected interest appears clear. They identify the invasion of an interest - the First Amendment right to access judicial proceedings - that courts have repeatedly held is capable of "being known or recognized."

[...]

No more than this is necessary for standing purposes, even if Movants ultimately fail to prove that the precise scope of the First Amendment right extends to redacted portions of our judicial opinions under the Richmond Newspapers test.

So, it's a win of sorts, even though it's very limited. As Mike Scarcella noted, it's a "foot in the door," rather than a victory. But it stems from a historic first -- an en banc review by the FISA court -- and indicates the nation's most secretive court is willing to address issues in a more adversarial setting than it's used to.

There's a lengthy dissent attached that appears to believe there's no right to access to classified documents and this decision will set up the government for endless redaction challenges, but that's kind of the point. Even the nation's most secret court shouldn't be completely beyond the reach of the citizens it ultimately serves.


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  • identicon
    Montauk, 13 Nov 2017 @ 2:49pm

    Hidden Government ?

    "There's a lengthy dissent attached that appears to believe there's no right {of the American citizenry} to access to classified documents..."


    Interesting issue:

    -- Do U.S. courts have any inherent due process right to access documents designated as "classified" by executive & legislative branches of American government?

    -- Where does the specific power of document "classification" originate in U.S.?

    -- Are there any legal limits to U.S. Government "Classification" authority or do government officials have generally unlimited authority to "classify" whatever they desire? (if so, who adjudicates any disputes involving these limits?)

    -- What does the US Constitution specify about the "secret" powers of the 3 Federal Branches and creation of secret Federal courts?

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 13 Nov 2017 @ 3:14pm

      Re: Hidden Government ?

      Your point the third hits on a perennial problem: Massive overclassification and for extended periods, because someone said so. (And then there are the work product games, and deliberative materials games.)

      Classification isn't required to be evidence-based, really.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Nov 2017 @ 3:22pm

        Re: Re: Hidden Government ?

        Massive overclassification and for extended periods, because someone said so. (And then there are the work product games, and deliberative materials games.)

        Those are the ways that governments zealously guard their privacy, while at the same time trying to remove the privacy of their citizens.

        reply to this | link to this | view in chronology ]

      • icon
        stderric (profile), 14 Nov 2017 @ 5:36pm

        Re: Re: Hidden Government ?

        Classification isn't required to be evidence-based, really.

        That's OK, because deciding what should be classified - without any specific rules or constraints to use for guidance - is really more of an art than a science... and the government is Jackson Pollock splattering black paint on a dark grey background.

        reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 14 Nov 2017 @ 8:54am

      Re: Hidden Government ?

      With regard to your third question, it would most likely depend on the intent and the effect of the classification.

      If there is a genuine national security interest in the classification, then it would be difficult to imagine type of information that could not be classified under existing case law and statutes.

      That being said, anything the general public already knows probably cannot be classified, as that would merely prevent those with security clearances from discussing it, while having no effect on the general public's ability to do so -- we've seen this happen relatively recently, where government employees are required to pretend certain Snowden leaks (and others) don't exist, yet all the news media are talking about it constantly.

      On the other hand, classifying evidence of wrongdoing in order to evade prosecution is never going to be legitimate, and even though letting our rivals and enemies abroad know some people in the US commit crimes makes us look bad, there is no way there could be a compelling national security interest that would sufficiently outweigh the public interest in preventing crimes, without creating an unequal enforcement situation regarding those laws and/or the abolition of those laws.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 3:18am

    ... and this is why I read TechDirt

    Great article. An important development that is likely to not be covered in many publications. Movants will "get their day in court".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 7:32am

    Inability to commit crimes

    A plaintiff, for instance, might lack standing "to complain about his inability to commit crimes because no one has a right to a commit a crime," and no Court could recognize such an interest.

    Did anyone else find this a strange statement? The USA was founded on a bunch of people committing crimes, with a large set of writings expounding on all peoples' inherent right to do so; that these people didn't go to prison indicates that early US courts, at least, recognized their interest in doing so. I suppose it's fitting that this arguably illegal court does not recognize it.

    Nevermind that criminal laws can be overturned by courts. Laws like (most of) the Communications Decency Act which make speech a crime have been overturned, for example.

    reply to this | link to this | view in chronology ]

  • icon
    Steve R. (profile), 14 Nov 2017 @ 2:03pm

    FISA Gullibility

    Fox News has been speculating that the so-called (fake) Russian dossier was leaked by the Democrats to the Justice Department as a verified document as a means of legitimizing the unmasking of US citizens. This may have lead to the appoint of Mueller to investigate so-called Russian collusion by the Trump administration.

    Whether this turns out to be a deplorable political dirty trick by the Democrats is unknown at this time. Nevertheless, it points to the potential that the FISA court may be making (horrendous) decisions based on false data. It is another shortcoming of FISA.

    reply to this | link to this | view in chronology ]


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