Supreme Court won’t review ACLU request for access to surveillance court rulings

The Supreme Court on Monday declined to review a request by the American Civil Liberties Union (ACLU) for access to decisions handed down by the U.S. surveillance court.

The court denied ACLU’s bid in an unsigned order, over a dissent by Justice Neil Gorsuch, who was joined by Justice Sonia Sotomayor.

The ACLU had asked the Supreme Court to consider whether Americans have a First Amendment right to access decisions handed down by the secretive court created by the Foreign Intelligence Surveillance Act (FISA), which has played a central role amid the government’s expanded mass surveillance efforts over the past two decades.

The group argued in their April brief that the secret court’s once-narrow role ballooned following the Sept. 11, 2001, terrorist attacks, and that its portfolio now has “profound implications for individual rights.”

“It’s crucial to the legitimacy of the foreign intelligence system, and to the democratic process, that the public have access to the court’s significant opinions,” said Theodore Olson, a former solicitor general under President George W. Bush, who signed on to the case.

In an opinion dissenting from the court’s denial, Gorsuch, joined by Sotomayor, said he would have granted review. 

“This case presents questions about the right of public access to Article III judicial proceedings of grave national importance,” Gorsuch wrote. “Maybe even more fundamentally, this case involves a governmental challenge to the power of this Court to review the work of Article III judges in a subordinate court. If these matters are not worthy of our time, what is?”

The case stems from a request the ACLU filed with the surveillance court in October 2016 that sought records from 2001 through 2015, a period when mass government surveillance greatly expanded and which came to light in part from the 2013 disclosures of former government contractor Edward Snowden.

During that time, the court addressed issues such as the lawfulness of the government’s bulk search of email, its warrantless use of internet surveillance and the secret installation of malware on Americans’ computers.

The brief had pushed the justices to recognize a limited First Amendment right of access to FISA court opinions — subject to redaction — on issues of public importance, like rulings on the constitutional and statutory scope of government surveillance power.

In 2015, Congress passed the USA Freedom Act, which introduced a degree of transparency on the intelligence court by requiring the federal government to periodically conduct declassification reviews of its rulings.

But that legislation has been criticized by watchdogs as seriously flawed, since it vests review authority exclusively in the executive branch and does not apply to decisions issued before the 2015 law took effect.

Both the FISA court and an appellate panel sided against the ACLU’s 2016 document request, with the appellate court ruling it lacked authority to decide the matter.