Lawsuit
ACLU v. United States
A motion asserting a right of access to opinions of the Foreign Intelligence Surveillance Court
The Knight Institute, the ACLU, and the Media Freedom and Information Access Clinic at Yale Law School argued in two separate proceedings that the public has a right of access to significant legal opinions of law issued by the Foreign Intelligence Surveillance Court.
The Foreign Intelligence Surveillance Court, or FISC, hears applications from the U.S. government to conduct both targeted and sweeping forms of foreign-intelligence surveillance. Although the court issues legal opinions with far-reaching implications for the privacy of U.S. persons and of others around the world, the court operates behind closed doors and presumptively keeps its legal opinions secret. Through motions filed in 2013 and 2016, the Knight Institute and its co-counsel argued that the First Amendment requires the court to make its legal opinions public, with only those redactions necessary to serve compelling government interests.
On November 19, 2020, the Foreign Intelligence Surveillance Court of Review held that it did not have jurisdiction to consider the constitutional claim that the Knight Institute and its co-counsel had raised. On April 19, 2021, the Knight Institute and its co-counsel—joined by former Solicitor General Theodore B. Olson—petitioned the Supreme Court for review.
Status: On November 1, 2021, the Supreme Court denied the petition for a writ of certiorari over the dissent of Justices Gorsuch and Sotomayor.
Case Information: In re Ops. & Orders of this Court Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, Misc. No. 13-08 (F.I.S.C.), No. 20-01 (F.I.S.C. Rev.); In re Certification of Questions of Law to the Foreign Intelligence Surveillance Court of Review, No. 18-01 (F.I.S.C. Rev.); In re Ops. & Orders of this Court Containing Novel or Significant Interpretations of Law, Misc. No. 16-01 (F.I.S.C.), No. 20-02 (F.I.S.C. Rev.), American Civil Liberties Union v. United States, No. 20-1499 (Supreme Court).
Press Statements
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Supreme Court Declines to Hear First Amendment Challenge to Secrecy of U.S. Surveillance Court
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Former Government Officials, as well as Media Organizations, Microsoft, Former Magistrate Judges File SCOTUS Briefs Challenging Secrecy of U.S. Surveillance Court
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Former Solicitor General, First Amendment Groups Challenge Secrecy of U.S. Surveillance Court
Analysis
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What Is America’s Spy Court Hiding From the Public?
By Jameel Jaffer , Theodore Olson & David Cole -
A New Consensus Around Transparency and National Security Surveillance
By Jameel Jaffer & Patrick C. Toomey -
The Public Should Have Access to the Surveillance Court’s Opinions
By Alex Abdo & Charlie Hogle -
Free the FISC Opinions
By Greg Margolis
Legal Filings
Click to highlight response chains
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KEY DOCUMENTS
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Supreme Court
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Order denying cert (with dissent)
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Reply Brief of Petitioner (ACLU)
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Brief in Respondent (USA)
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Amicus Briefs in Support of Petitioner (ACLU)
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Brennan Center for Justice and Americans for Prosperity Foundation
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Professor Stephen I. Vladeck
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Former Government Officials
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Former United States Magistrate Judges
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Microsoft Corporation
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Reporters Committee for Freedom of the Press and 34 Media Organizations
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Project for Privacy & Surveillance Accountability
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Petition for a Writ of Certiorari
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F.I.S.C. Rev. (No. 20-02) (appeal from No. 16-01)
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F.I.S.C. (No. 16-01)
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Movants' Petition for Review
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Opinion (denying access motion for lack of jurisdiction)
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Movants’ Status Report
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Order (denying motion to consolidate)
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Movants’ Motion to Consolide Nos. 13-08 and 16-01
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Movants’ Reply
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Government’s Opposition
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Movants’ Motion for the Release of Court Records
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F.I.S.C. Rev. (No. 20-01) (second appeal from No. 13-08)
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F.I.S.C. (No. 13-08) (after appeal to F.I.S.C. Rev.)
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Movants’ Motion to Transmit the Record
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Movants’ Petition for Review
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Opinion (denying motion for public access)
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Order (denying motion to consolidate)
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Movants’ Reply
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Professor Donahue’s Reply
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Governments’ Response
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Movants’ Brief on Subject Matter Jurisdiction
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Movants’ Motion to Consolide Nos. 13-08 and 16-01
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Professor Donahue’s Amicus Brief (in support of Movants)
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Appendix
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Order (requiring briefing on subject matter jurisdiction)
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F.I.S.C. Rev. (No. 18-01) (appeal from No. 13-08)
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Opinion (holding that Movants have standing)
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Professor Donahue’s Reply
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Government’s Reply
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Movants’ Reply
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Government’s Opening Brief
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Movants’ Opening Brief
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Amicus Briefs (in support of Movants)
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Professor Laura Donahue (appointed by F.I.S.C. Rev.)
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Appendix, part 1 of 3
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Appendix, part 2 of 3
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Appendix, part 3 of 3
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Reporters Committee for Freedom of the Press
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Order (accepting certification from F.I.S.C.)
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F.I.S.C. (No. 13-08)
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Order (certifying question of standing to the F.I.S.C. Rev.)
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En Banc order (holding that Movants have standing)
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Government’s En Banc Reply
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Movants’ En Banc Reply
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Government’s En Banc Opening Brief
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Movants’ En Banc Opening Brief
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Order (scheduling en banc consideration)
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Movants’ Motion to Alter or Amend Judgment
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Order (holding that Movants lack standing)
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Movants’ Notice of Supplemental Authority re: USA FREEDOM Act
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Movants’ Notice of Supplemental Authority re: Dhiab v. Obama
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Movants’ Reply
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Government’s Opposition
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Media Organizations’ Amicus Brief (in support of Movants)
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Movants’ Motion for the Release of Court Records
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