Tag Archives: Foreign Intelligence Surveillance Court

Fear of the Enemy Within: Unrestricted Surveillance

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The Supreme Court declined to hear a constitutional challenge to a secretive government surveillance program, dealing a setback to privacy groups including the American Civil Liberties Union ahead of a looming debate in Congress over whether to renew the law that authorizes the intelligence tool.

In a brief order issued on February 2023, the high court said it wouldn’t hear arguments challenging the legality of the National Security Agency program known as “Upstream,” in which the intelligence agency collects and monitors internet communications without obtaining search warrants. Classified details about the program were among those exposed a decade ago by former intelligence contractor Edward Snowden, who has been charged with theft of government property and violating espionage laws and lives in Russia.

The legal challenge was brought by Wikimedia, the nonprofit owner of the Wikipedia online encyclopedia. Wikimedia was represented by lawyers at the ACLU, Cooley LLP and the Knight First Amendment Institute at Columbia University. Wikimedia’s lawyers urged the high court to rein in the “state secrets privilege,” a legal doctrine that allows the government to shut down lawsuits that could jeopardize sensitive national-security information. 

“The Supreme Court’s refusal to grant our petition strikes a blow against an individual’s right to privacy and freedom of expression—two cornerstones of our society and the building blocks of Wikipedia,” said James Buatti, Wikimedia’s legal director, in a statement.

Excerpts from  Jan Wolfe  and Dustin Volz, Justices Won’t Hear Challenged to NSA Surveillance, Feb. 22, 2023

FISA Court and Transparency

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According to the Opinion of Judge F. Dennis Saylor of the FISA (Foreign Intelligence Surveillance) court, of Sept. 13, 2013 in response to a motion by the ACLU for release of certain opinions of the FISA court:

“The unauthorized disclosure in June 2013 [Edward Snowden disclosure] of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215 of the Partiot Act. Publication of FISC opinions relating to this provision would contribute to an informed debate. Congressional amici emphasize the value public information and debate in representing their constituents and discharging their legislative responsibilities. Publication would also assure citizens of the integrity of this Court’s proceedings.

In addition, publication with only limited redactions may now be feasible, given the extent of the government’s recent public disclosures about how Section 215 is implemented. Indeed, the government advises that a declassification review process is already underway.  In view of these circumstances, and as an exercise of discretion, the Court has determinedthat it is appropriate to take steps toward publication of any Section 215 Opinions that are not subject to the ongoing FOIA litigation…”

Excerpt, See United States Foreign Intelligence Surveillance Court, In Re Orders of this Court Interpreting Section 215 of the Patriot Act, Docket No. Misc. 13-02