The U.S. Supreme Court on Monday denied a request by civil libertarians to allow public access to decisions handed down by the secretive Foreign Intelligence Surveillance Court.
In an unsigned order, the high court turned down a bid by the American Civil Liberties Union seeking the release of all FISC opinions regarding government surveillance of U.S. citizens issued between the Sept. 11, 2001, terrorist attacks and June 2015.
Justices Neil Gorsuch and Sonya Sotomayor dissented, saying they would allow the Supreme Court to consider the matter. The FISC, they wrote, “evaluates extensive surveillance programs that carry profound implications for Americans’ privacy and their rights to speak and associate freely.”
“[The FISC’s] opinions are the law,” the ACLU tweeted following the decision. “They should not be kept hidden from Americans whose rights hang in the balance.”
Monday’s order concerns a motion filed by the ACLU in October 2016 seeking the release of all FISC opinions containing “novel or significant interpretations” of law issued in the 14 years between 9/11 and the passage of the USA Freedom Act in 2015.
The civil liberties group said these rulings appeared to address a range of novel surveillance activities, including, among other concerns, the government’s bulk searches of email received by Yahoo! customers and its efforts to force tech companies to weaken or circumvent their own encryption protocols.
The FISC ruled last year that the public has no First Amendment right to view its opinions, and a few months later both the FISC and its special court of appeals — the Foreign Intelligence Surveillance Court of Review — held that the U.S. Supreme Court lacked jurisdiction even to consider First Amendment public access motions, the ACLU argued.
That opinion alarmed Gorsuch and Sotomayor, who wrote in their dissent that the 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?”
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