Misc. 13-08 Notice of Supplemental Authority (FISC 2015)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on November 7, 2013.
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Yale Law School MEDI A F R EE D0 M A N D I NF 0 R MA T I0 N INF 0 RM AT I 0 N S 0 C 1 ET Y Honorable Thomas F. Hogan, Presiding Judge United States Foreign Intelligence Surveillance Court c/o Christine Gunning Litigation Secwity Group U.S. Department of Justice 2 Constitution Square 145 N Street N.E., Suite 2W-115 Washington, DC 20530 Re: or-!""l. - 7 /-.1f. '! A C C E 11:° f h.1 .N L<? . . . •\ ,. ' r PR 0 J EC T ~ , l ~i :.: i ~---~ '~:-: '.. ',.,· ..' : L .:_ L ~ \; ~ Q. ,./ • 1 , r. 2 •1 1 ..... '- L. ,.,.; • . '-•' :~.._.'I \ i December 4, 2015 Notice of Supplemental Authority In re Opinions & Orders ofthis Court Addressing Bulk Collection ofData Under the Foreign Intelligence Surveillance Act, Docket No. Misc. 13-08 Dear Judge Hogan: Movants American Civil Liberties Union, American Civil Liberties Union of the Nation's Capital, and the Media Freedom and Information Ac.cess Clinie (collectively "Movants") wish to bring to the Court's attention Section 402 of the USA Freedom Act of2015, Pub. L. No. 11+23 (June 2, 2015), codified at 50 U.S. C. § 1872, which supports Movants' pending motion for the release of court opinions. A copy of the provision is enclosed. As the Court is aware, on November 6, 2013, Movants filed the motion at issue in this case, asserting a First Amendment right of access to this Court's opinions addressing bulk collection of data under the Foreign Intelligence Surveillance Act. The Government responded that it already had released four heavily redacted Foreign Intelligence Surveillance Court ("FISC") opinions that are responsive to the motion. Movants replied that the redactions to those opinions must be independently reviewed by the Court to determine whether they meet the stringent standard of scrutiny required to overcome the public's right of access. Movants also asked the Court to order declassification and to independently review any other responsive FISC opinions that may exist. The parties concluded briefing on the motion on December 20, 2013, and Movants submitted a first Notice of Supplemental Authority on October 30, 2014. The Court has taken no action on the case since that time. On Jwie 2, 2015, Congress passed and the President signed into law the USA FREEDOM Act. Pub. Law 114-23. Section 402 of the Act is relevant to this suit. It requires the Director of National Intelligence ("DNI"}, in consultation with the Attorney General ("AG"}, to conduct a declassification review of "each decision, order, or opinion issued by the [FISC or FISCR] that includes a significant construction or interpretation of any provision of law," and to make such decisions "publicly available to the greatest extent practicable," with redactions if necessary. 50 U.S.C. § 1872(a)-(b). The DNI and AG are permitted to waive the requirement to declassify decisions if they detennine "that a waiver of such requirement is necessary to protect the national r.o. BOX 208215. HEW HAVEN. COHtolECTlCUT 06520-RllS • TELEPHONE 203 4l2·9lR7 • FACSIMILE 20) 432-3034 COURIER ADDRESS J27 WALL STREET, Nl!W HAVEN. CONNECTICUT 0651 I security of the United States or properly classified intelligence sources or methods," but in that case they must publish an unclassified statement "summarizing the significant construction or interpretation of any provision of law." 50 U.S.C. §1872(c)(2)(A). As movants previously demonstrated, there is a First Amendment right of access to court records where there is a history of access to the type of record in question, and where public access would improve the functioning of the process in question. 1 Section 402 provides further evidence that these inquiries, particularly the latter, favor disclosure of FISC opinions. Section 402 demonstrates Congress's judgment that significant FISC opinions should be published to the greatest extent possible, and that public access to FISC opinions supports the proper functioning of the Court. Section 402 thus further strengthens Movants' claim asserting a First Amendment right of access to the opinions sought. In light of this development, Movants respectfully ask the Court to rule on the pending motions, to determine that there is a qualified First Amendment right of access to the opinions Movants seek, and to permit redactions of those opinions only to the extent they meet the strict standard of constitutional scrutiny that is required to overcome this right. athanM. M David A. Schulz Media Freedom and Information Access Clinic Abrams Institute for Freedom of Expression2 P.O. Box. 208215 New Haven, CT 06520 Phone: (212) 850-6103 jonathan.manes@yale.edu dschulz@lskslaw.com Alexander Abdo Patrick Toomey American Civil Liberties Union 125 Broad Street, 1s•h Floor New York, NY 10005 Phone: (212) 549-2500 Fax: (212) 549-2654 Arthur B. Spitzer American Civil.Liberties Union ofthe Nation's Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, DC 20008 Phone: (202) 457-0800 Fax: (202) 457-0805 Counsel for the Plaintiffs Encl. 1 Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 418 U.S. 1, 8 (1986). 2 This submission has been prepared with the assistance of Yale Law School students Divya Musinipally, Andy Udelsman, and Yurij Melnyk. The Media Freedom and Infonnation Access Clinic and Abrams Institute for Freedom of Expression are programs of Yale Law School, but this letter does not purport to represent the institutional views of the school, if any. 2 Yale Law School MEDIA FREEDOM AND INFORMATION ACCESS CLINIC INFORMATION SOCIETY PROJECT CERTIFICATE OF SERVICE I, Jonathan Manes, certify that on this day, December 4, 2015, a copy of the foregoing notice of supplemental authority was served on the following persons by the methods indicated: By email and FedEx overnight delivery: Christine Gunning Litigation Security Group U.S. Department of Justice 2 Constitution Square 134 N Street N.E. Suite 2W-l 15 Washington, DC 20530 christine.e.gunning@usdoj.gov Alex Iftimie Nicholas Patterson John P. Carlin Tashina Guahar J. Bradford Wiegmann U.S. Department of Justice National Secwity Division 950 Pennsylvania Ave. N.W. Washington, DC 20530 alex.iftimie@usdoj.gov P.O. BOX 2082 IS, NEW HAVEN, CONNECTICUT 06520-821.S • TELEPHONE 103 02·9JR7 • FACSIMILE 203 432·3034 COURIER ADDRESS 127 \VALL STREET, NEW HAVl!M. CONNECTICUT 06511 PUBLIC LAW 114-23-JUNE 2, 2015 · UNITING AND STRENGTHENING AMERICA BY FULFILLING RIGHTS AND ENSURING EFFECTIVE DISCIPLINE OVER MONITORING ACT OF 2015 129 STAT. 268 PUBLIC LAW 114-23-JUNE 2, 2015 Public Law 114-23 114th Congress June 2, 2015 m.R. 2048) Unitin~and Strenptnening Amencaby. Ful6Jling Rights and Ensuring Effective Discipline Over Monit.oring Act of2015. souse 1801 note. An Act To reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering for foreign intelligence, counterterrorism, and criminal purposes, and for other pur- poses. Be it enacted by the Senate and House of Representatives of the United States ofAmerica in Congress assembled, SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) SHORT TITLE.-This Act may be cited as the "Uniting and Strenf!thening America by Fulfilling Rights and Ensuring Effective Disciptine Over Monitoring Act of 2015', or the ccusA FREEDOM Act of 2015". (b) TABLE OF CONTENTS.-The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Amendments to the Foreign Intelligence Surveillance Act of 1978. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110. TITLE I-FISA BUSINESS RECORDS REFORMS Additional requirements for call detail records. Emergency authority. Prohibition on bulk collection of tangible things. Judicial review. Liability protection. Compensation for assistance. Defiliitions. fos_pector General reports on business records orders. Effective date. Rule of construction. TITLE ll-FISA PEN REGISTER AND TRAP AND TRACE DEVICE REFORM Sec. 201. Prohibition on bulk collection. Sec. 202. Privacy procedures. TITLE IIl-FISA ACQUISITIONS TARGETING PERSONS OUTSIDE THE UNITED STATF.S REFORMS Sec. 301. Limits on use of unlawfully obtained .information. TITLE IV-FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS Sec. 401. Appointment of amicua curiae. Sec. 402. Declassification of decisions, orders, and opinions. TITLE V-NATIONAL SJe;CURITY LETl'ER REFORM Sec. 501. Prohibition on bulk collection. Sec. 502. Limitations on disclosure of national security letters. Sec. 503. Judicial review. TITLE VI-FISA TRANSPARENCY AND REPORTING REQUJREMENTS Sec. 601. Additional reporting OD orders requiring production or business records; business rocOrds compliance reports to Congress. PUBLIC LAW 114-23-JUNE 2, 2015 129 STAT. 269 Sec. 602. Annual reports by the Government. Sec. 603. Public reportinJ by persons subJect to FISA orders. Sec. 604. Reporting reqwrements for decisions, orders, and opinions of the Foreie Intelligence Surveillance Court and the Foreign lnte11igence Surveallance Court of Review. Sec. 606. Submission of reports under FISA. TITLE VII-ENHANCED NATIONAL SECURITY PROVISIONS Sec. 701. Emergencies involving non-United States persons. Sec. 702. Preservation of treatment of non-United States persons traveling outside the United Stat.es as agents of foreign powers. Sec. 703. Improvement to investigations of international proliferation of weapons of mass destruction. Sec. 704. Increase in penalties for material support of foreign terrorist organiza· tions. Sec. 706. Sunsets. TITLE VIII-SAFETY OF MARITIME NAVIGATION AND NUCLEAR TERRORISM CONVENTIONS IMPLEMENTATION Sec. 801. Sec. 802. Sec. 808. Sec. 804. Sec. 805. Subtitle A-Safety of Maritime Navigation Amendment to section 2280 of title 18, United States Code. New section 2280a of title 18, United States Code. Amendments to section 2281 of title 18, United States Code. New section 2281a of title 18, United States Code. Ancillary measure. Subtitle B-Prevention of Nuclear Terrorism Sec. 811. New section 2332i of title 18 United States Cede. Sec. 812. Amendment to section 881 of title 18, United States Code. SEC. 2. AMENDMENTS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978. Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or a repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.). TITLE 1-FISA BUSINESS RECORDS REFORMS SEC. 101. ADDmONAL REQUIREMENTS FOR CALL DETAJL RECORDS. (a) APPLICATION.-Section 501(bX2) (50 u.s.c: 186l(b)(2)) is amended(1) in subparagraph CA)(A) in the matter preceding clause (i), by striking "a statement" and inserting "in the case of an application other than an application described in subparagraph (C) (including an application for the production of call detail records other than in the manner described in subparagraph (C)), a statement.,; and · (B) in clause (iii), by striking "; and" and inserting a semicolon; (2) by redesignating subparagraphs (A) and (B) as subparagraphs (B) and (D), respectively; and (3) by inserting after subparagraph (B) (as so redesignated) the following new subparagr:aph: "CC) in the case of an application for the production on an ongoing basis of call detail records created before, PUBLIC LAW 114-23-JUNE 2, 2015 129 STAT. 281 (a) shall cer~ for review to the court established under subsection (b) any question oJ law that may affect resolution of the matter in controversy that the court determines warrants such review because of a need for unifonnity or because consideration by the court established under subsection (b) would serve the interests of justice. Upon certification of a question of law under this subsection, the court established under subsection (b) may gjve binding instructions or require the entire record to be sent up for decision of the entire matter in controversy. "(k) REvlEW OF FISA COURT OF REVIEW DECISIONS.cc(l) CERTIFICATION.-For purposes of section 1254(2) of title 28, United States Code, the court of review established under subsection (b) shall be considered to be a court of appeals. "(2) AM1cus CURIAE BRIEFING.-Upon certification of an 11pplication under para'P'aph (1), the Su.Preme Court of the United States may appomt an amicus cunae designated under subsection (i)(l), or any other person, to provide briefing or other assistance.". SEC. 402. DECLASSIFICATION OF DECISIONS, ORDERS, AND OPINIONS. (a) DECLASSIFICATION.-Title VI (50 u.s.c. 1871 et seq.) is amended(1) in the heading, by strlkll!g "REPORTING REQUIRE- 60USC prec.1871. MENT" and inserting "OVERSIGHT"; and (2) by adding at the end the following new section: "SEC. 602. DBCLASSMCATION OF SIGNIFICANT DIOOISIONS, ORDERS, AND OPINIONS. Consultation. Public information. 50USC 1872. "(a) DECLASSIFICATION REQUJRED.-Subject to subsection (b), the Director of National Intelligence, in consultation with the Review. Attorney General, shall conduct a declassification review of each decision, order, or ~inion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Co'lµ't of Review (as defined in section 601(e)) that includes a significant construction or interpretation of any provision of law, including any novel or significant construction or interpretation of the term 'specific selection term', and, consistent with that review, make publicly available to the greatest extent practicable each such decision, order, or opinion. "Cb) REDACTED FORM.-The Director of National Int.elligence, in consultation with the Attorney General, may satisfy the requirement under subsection (a) to make a decision, order, or opinion described in such subsection publicly available to the greatest extent practicable by m~ sucli decision, order, or opinion publicly available in redacted form. "(c) NATIONAL SECURITY WAIVER.-The Director of National Intelligence, in consultation with the Attorney General, may waive the req¢rement to declaes.ify and make publicly available a particular aecieion, order, or opinion under subsection (a), if"(1) the Director of National Intelligence, in consultation with the Attorney General, determines that a waiver of such requirement is necessary to protect the national security of the United States or properly classified intelligence sources or methods; and "(2) the Director of National Intelligence makes publicly available an unclassified statement prepared by_ the Attorney General, in consultation with the Director of National Intelligence- 129 STAT. 282 PUBLIC LAW 114-23-JUNE 2, 2015 "(A) summarizing the significant construction or interpretation of any provision of law, which shall include, to the extent consistent with national security, a description of the context in which the matter arises and any significant construction or interpretation of any statute, constitutional provision, or other legal authority relied on by the decision; and "(B) that specifies that the statement has been prepared by the Attorney General and constitutes no part of the OJ>inion of the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review.". (b) TABLE OF CONTENTS AMENDMENTS.-The table of contents in the first section is amended(1) by strikin~ the item relating to title VI and inserting the following new item: "TITLE VI-OVERSIGHT"; and (2) by inserting after the item relating to section 601 the following new item: "Sec. 602. Declassification of significant decisions, orders, and opinions.". TITLE V:-NATIONAL SECURITY LE'ITER REFORM SEC. 601. PROIUBITION ON BULK COLLECTION. (a) CoUNTERINTELLIGENCE ACCESS TO TELEPHONE TOLL AND TRANSACTIONAL RECORDS.-Section 2709(b) of title 18, United States Code, is amended in the matter preceding paragraph (1) by striking "may" and inserting "may, using a term that specifically identifies a person, entity, telephone number, or account as the basis for a request". (b) ACCESS TO FINANCIAL RECORDS FOR CERTAIN INTELLIGENCE AND PROTECTIVE PURPOSES.-Section 1114(a)(2) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(aX2)) is amended by striking the period and inserting "and a term that specifically identifies a customer, entity, or account to be used as the basis for the production and disclosure of financial records.". (c) DISCLOSURES TO FBI OF CERTAlN CONSUMER RECORDS FOR COUNTERINTELLIGENCE PURPOSES.-Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) is amended(1) in subsection (a), by striking "that information/' and inserting "that information that includes a term that specifically identifies a consumer or account to be used as the basis for the production of that information,"; (2) in subsection (b), by striking "written request," and inserting "written request that includes a term that specifically identifies a consumer or account to be used as the basis for the production of that information,"; and (3) in subsection (c). by inserting ", which shall include a term that specifically identifies a consumer or at."CUunt to be used as the basis for the production of the information," after "issue an order ex parte". (d) DISCLOSURES TO GOVERNMENTAL AGENCIES FOR COUNTERTERRORISM PuRPOSES OF CONSUMER REPORTS.-Section 627(a) of
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