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Courthouse News Service Courthouse News Service

Media Outlets Push FISC for Info|on Secret Government Surveillance

WASHINGTON (CN) - The once-secret Foreign Intelligence Surveillance Court has mishandled demands to reveal the government's attempted justifications of its program of collecting the call and email data of Americans, a media coalition said.

Reporters Committee for the Freedom of the Press filed the amicus brief with the FISC, just before Thanksgiving last week, alongside Bloomberg, The New York Times, The Washington Post, Courthouse News Service and 21 other media organizations.

The brief takes aim at a Sept. 13 ruling in which the FISC found that the ACLU and its D.C.-based Nation's Capital chapter alone had standing to seek the release of precedential FISC opinions that underlie the National Security Agency's surveillance programs.

This decision denied standing to the Media Freedom and Information Access Clinic (MFIAC) at Yale Law School based on the finding that only those entities that had previously discussed the scope of Section 215 of the Patriot Act can witness the court's proceedings.

MFIAC moved on Oct. 11 for reconsideration of that standing determination, and the ACLU moved for the release of court records a few weeks later. Propublica also moved for the release of FISC records on Nov. 12, stressing that it has standing as a member of the media.

The Nov. 26 amicus brief supports all three motions, claiming that the FISC "ignored Supreme Court precedent when it denied MFIAC standing because it found that the clinic had not 'participated in public debate about Section 215.'"

Access to court information "is a right that everyone has and that an abridgement of that right harms the public's right to hold its government accountable," RCFP attorney Bruce Brown added.

The 26-page filing emphasizes that media outlets often act as "a proxy - but never a substitute - for the general public in exercising this right of public access.

"Given that journalists help ensure public access by serving as the 'information-gathering agent' of people who cannot go to courtrooms themselves, it is especially important that this court recognize the interests of new groups, like MFIAC, that are forming to take on these same responsibilities for the benefit of the public," Brown added.

MFIAC's role in the fight becomes evermore important as "shrinking budgets at large media companies have inevitably meant a drop-off in First Amendment litigation from those outlets," the brief states.

"Between 2009 and 2011, media access and access policy efforts received $134.7 million from private foundations," Brown added. "This figure demonstrates that outside groups that traditionally have not been involved in access debates are becoming participants in this crucial area of First Amendment jurisprudence. New entrants should not be excluded, as MFIAC was, for attempting to join this critical field. ... As these types of organizations assume a greater role in helping represent the public's interests, it is essential that this court and others recognize the importance of these actors in the constitutional debate."

Better understanding of the NSA's surveillance programs also heightens the need for access, according to the brief.

"In addition to closing its proceedings and sealing its records, the FISA Court has only one side - the government - arguing before it," Brown wrote. "Disclosing precedential opinions would be a major step towards fostering trust in the court and public understanding of surveillance programs."

Access to the secret court orders come as former NSA contractor Edward Snowden continues to selectively leak documents about the court's activities.

The court's decision to restrict who can see what "interferes with the most basic constitutional commandments and common-law traditions underlying the laws of access to courts, and is particularly problematic in a court already so closed off from public view," Brown added.

Joining the RCFP as amici are the Bay Area News Group; Belo Corp; Bloomberg; Courthouse News Service; E.W. Scripps Co.; First Amendment Coalition; Gannett Co.; Hearst Corp.; Investigative Reporters and Editors; Investigative Reporting Workshop at American University; The McClatchy Co.; Media Consortium; The National Press Club; National Press Photographers Association; National Public Radio; The New York Times Co.; The New Yorker; North Jersey Media Group Inc.; Online News Association; Politico LLC; Radio Television Digital News Association; The Seattle Times Co.; and The Washington Post.

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