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ProPublica Motion Seeks Release of Court Rulings on NSA Spying

Dec. 11: This post has been updated.

ProPublica is filing a motion today in the Foreign Intelligence Surveillance Court seeking the release of various court opinions that provide the judicial rationale for the federal government's secret collection of telephone metadata. The Electronic Frontier Foundation is acting as ProPublica's pro bono counsel in this matter.

The motion follows ProPublica's extensive reporting on the National Security Agency’s collection of phone and web records and its efforts to undermine the encryption that protects the privacy of everyday Internet communications.

"It's critical for the court to publicly provide the rationale that allows this unprecedented government secrecy," said ProPublica President Richard Tofel. "The public has a First Amendment right to see and understand its opinions, and we hope this motion will persuade the court to release more of them.”

The national ACLU, the ACLU of the Nation’s Capital, and the Media Freedom and Information Access Clinic at Yale Law School filed a similar motion last week, but Jane E. Kirtley, formerly executive director of the Reporters Committee for Freedom of the Press, said ProPublica's motion might be more effective on this particular issue. "Federal judges routinely find that news media entities have standing to assert the public's First Amendment right of access to court records and proceedings," said Kirtley, now the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communication. "The FISC therefore may be more likely to find standing on the part of a news organization to seek disclosure in such situations. And it may give an extra level of consideration to reach the First Amendment issues if a news organization is among the requesters."

Update, Nov. 26: At least some of the opinions sought by ProPublica’s motion, and perhaps all of them, were included in a batch of documents released recently by the Office of the Director of National Intelligence. The two opinions can be found here and here.

Update, Dec. 11: The brief of the U.S. in opposition to ProPublica’s motion was filed today. It confirms that redacted versions of all the FISC opinions being sought have now been released. The dispute over the redactions continues.

John Henry Bicycle Lucas

Nov. 12, 2013, 7:12 p.m.

Well, hopefully this will produce some results.

But I don’t count on it. It could be secret in the interest of “national security”.

Something everybody interested in journalism should ask themselves (and the courts) is, if Nixon were president today, what would he say about inquiries into the Watergate scandal?  Anybody who doesn’t say “bury it as national security” should just go home now.

However, on this point, don’t we already know this?  This is their secret interpretation of Section 215 of the Patriot Act, which was widely panned as the “library records provision,” back when libraries knew the most about your private interests.  It reads, to start:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

There are subsections that try to make it sound less sinister, but the upshot is that, as long as a records search is not directed at “a United States person” (which can be interpreted to mean that groups of such persons are OK) or that there’s some other interest beyond violating freedom of expression, then it’s arguably legal by this law.  Heck, it’s the entire blueprint for the NSA programs:  Search everybody, because anybody can be a terrorist, and therefore the purpose isn’t about chilling an individual’s expression!

The question isn’t what their rationale is.  The question is why they believe that rationale is legitimate.  Considering that it treats the Bill of Rights as something to be discarded on the first inconvenience (see the word “solely” in the quoted section, above) and the First Amendment says “Congress shall pass no law” violating these freedoms, then the legitimacy is a critical question.