En Banc Surveillance Court Holds ACLU, Yale Have Standing to Seek Data Collection Rulings

WASHINGTON (CN) – The Foreign Intelligence Surveillance Court ruled Thursday that two organizations have standing to seek access to heretofore secret opinions and rulings on the government’s bulk collection of the private data of U.S. citizens.

Historically, the court has ruled organizations like the plaintiffs in the current case, the American Civil Liberties Union and Yale University’s Media Freedom and Information Access Clinic, suffer no injury-in-fact and thus lack standing to bring First Amendment claims for access to redacted portions of the court’s opinions.

The 6-5 decision by the court is the first-ever en banc ruling to reverse such a holding.

“Whatever the merits of Movants’ suit, we conclude that they have asserted a sufficient injury-in-fact to pursue it,” said U.S. District Judge James Boasberg, writing for the majority.

The ACLU and Yale’s Media Clinic joined forces on the lawsuit in 2013, after Edward Snowden released documents showing the court authorized surveillance of Americans’ private communications and did so without any transparency.

The groups argued their access to the court rulings — and their legal standing — was protected under the First Amendment. But they were routinely dismissed, most recently by U.S. District Judge Rosemary Collyer in January.

Her dismissal marked the fifth time the court rejected the ACLU’s motion to see the rulings.

But in the Nov. 9 decision, Judge Boasberg, writing for the majority, said, “Figuring out whether a plaintiff has standing to bring a novel legal claim can feel a bit like trying to distinguish a black cat in a coal cellar.”

Boasberg continued: “A plaintiff, for instance, might lack standing ‘to complain about his inability to commit crimes because no one has a right to a commit a crime,’ and no court could recognize such an interest,” he explained.

But that same individual would have standing to bring First Amendment claims even if he would lose on the merits, he added, citing Buckley v. Valeo, a ruling which allowed plaintiffs to attack campaign finance laws as unconstitutional despite the fact that “there is no specific First Amendment right to make unlimited campaign contributions.”

Any unsuccessful constitutional claim could be used to illustrate the point, he emphasized but “… were we to define the rights with any greater level of specificity, no plaintiff would have standing to challenge established First Amendment precedent.”

“This is certainly not the case,” he said, this time citing Citizens United v. FEC, a ruling overturning precedent upholding restrictions on corporate independent expenditures.

In a dissent, Judge Collyer wrote, “Only by framing the question before us in its most general terms can the majority answer with the unremarkable proposition that some courts — but not the Supreme Court — have found a First Amendment right of access to some federal court proceedings in civil cases when the place and process historically have been public.”

“But the question the majority poses is not the one presented by the motion in this case,” she said.

Brett Max Kaufman, a staff attorney with the American Civil Liberties Union, called the ruling a “win for transparency against the government’s efforts to keep its mass surveillance regime hidden from public scrutiny.”

“Secret law is incompatible with democracy and uncovering classified court rulings [are] key to rolling back government spy programs that infringe on Americans’ privacy rights,” Kaufman said.

David Schulz, co-director at Yale’s Media Freedom clinic, said the reversal’s stood in direct opposition to at least a decade’s worth of intensifying secrecy under the auspices of national security.

“Nearly 40 years ago, the Supreme Court recognized the secret proceedings of any stripe are profoundly inimical to our judicial system and our democratic government,” Schulz said. “Today’s ruling ensures that, at a minimum, [the clinic] and its allies can continue to combat this trend that shrouds in secrecy government actions that undermine our civil liberties.”

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