MFIA Clinic Urges FISA Court of Review to Protect Public Access

On February 23, 2018, Yale's Media Freedom & Information Access Clinic (MFIA) and the ACLU filed a brief before the Foreign Intelligence Surveillance Court of Review (FISCR) urging the appellate court to recognize that judicial opinions of the Foreign Intelligence Surveillance Court (FISC) should be public.

The filing is the latest in a years-long effort to advance the public's First Amendment right of access to the FISC's secret judicial opinions authorizing some of the government's most controversial mass surveillance activities. MFIA and the ACLU originally filed the case in 2013 after Edward Snowden revealed that the FISC had authorized widespread surveillance of Americans.

A January 2017 decision from a single FISC judge had dismissed the challenge for lack of standing. Sitting en banc for the first time in its history, the FISC reversed that determination, holding that MFIA and the ACLU could challenge the secrecy of the court's judicial opinions. The question now lies before the FISCR in what could be a monumental ruling for litigants' access to federal courts.

"The case is crucial not just for establishing a First Amendment right of access to this category of judicial opinions, but also for the broader doctrinal debate on standing," said Paulina Perlin '19, who co-wrote the brief. "How narrowly should we read standing requirements and to what extent should we restrict access to courts, particularly in the national security context?"

"As the Snowden disclosures revealed, the FISC bears responsibility for authorizing sweeping collections of the public's data," said Meenakshi Krishnan '18, who co-wrote the brief. "So as to avert the spread of secret law, it is essential that the public be able to scrutinize classified court rulings with profound consequences like those of the FISC."

The government concurrently filed its opening brief in the case, as did Georgetown Law Professor Laura Donohue, who was appointed amicus by the FISCR.

MFIA is a law student clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression by providing pro bono legal services, pursuing impact litigation, and developing policy initiatives. Along with Perlin and Krishnan, the MFIA Clinic's co-director, David Schulz '78, John Langford '14, and Hannah Bloch-Wehba serve as supervising attorneys on the matter. The Knight First Amendment Institute, the ACLU, and the ACLU of Washington, D.C., are co-counsel on the case.