Misc. 13-03 Motion of Amici Curiae for Leave to Participate in Oral Argument (FISC 2013)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on June 18, 2013.
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f ' US f ORE\GNt" \NlELL\GENCr.. nT SURVE\LlAXCf. coU,', UNITED STATES '>il 1~ nr.1 \ Q P1'i 2: \ 4 FOREIGN INTELLIGENCE SURVEILLANCE C6'tJRT WASHINGTON, D.C. \ £.EA.NN FL'1'NN Hf>..l l -------------IN RE MOTION FOR DECLARATORY JUDGMENT OF GOOGLE INC. 's FIRST AMENDMENT RIGHT TO PUBLISH AGGREGATE INFORMATION ABOUT FISA ORDERS. .- CLERK OF COURT Docket No. Misc. 13-03 I IN RE MOTION TO DISCLOSE AGGREGATE DATA REGARDING FISA ORDERS i l i Docket No. Misc. 13-04 i MOTION OF THE FIRST AMENDMENT COALITION, AMERICAN CIVIL LIBERTIES UNION, CENTER FOR DEMOCRACY AND TECHNOLOGY, ELECTRONIC FRONTIER FOUNDATION, AND TECHFREEDOM AS AMICI CURIAE FOR LEAVE TOPARTICIPATE IN ORAL ARGUMENT Floyd Abrams Dean Ringel CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005-1772 (212) 701-3000 Counsel for Amici Curiae October 10, 2013 '· -2The First Amendment Coalition, American Civil Liberties Union, Center for Democracy and Technology, Electronic Frontier Foundation, and TechFreedom (together, "Amici") are public interest organizations dedicated to the preservation of civil liberties. They have previously submitted a brief Amici Curiae in support of motions filed by Google, Inc. ("Google") and Microsoft Corporation ("Microsoft") seeking declaratory judgments confirming the ability of those parties to disclose limited aggregate numerical information relating to requests that each may have received from the government pursuant to the Foreign Intelligence Surveillance Act ("FISA"). See In re Motion for Declaratory Judgment of Google Inc. 's First Amendment Right to Publish Aggregate Information About FISA Orders, Docket No. Misc. 13-03 (June 18, 2013); In re Motion to Disclose Aggregate Data Regarding FISA Orders, Docket No. Misc. 13-04 (June 19, 2013). Google has since filed amended motions for declaratory judgment seeking, inter alia, "public oral argument." Amended Motion for Declaratory Judgment of Google Inc. 's First Amendment Right to Publish Aggregate Information About FISA Orders, Docket No. Misc. 1303 (Sept. 9, 2013), at l; see also Microsoft's First Amended Motion to Disclose Aggregate Data Regarding FISA Orders, Docket No. Misc. 13-04 (Sept. 9, 2013), at 1. Amici now respectfully submit this motion for leave for their counsel, Floyd Abrams, to participate in oral argument on those motions. The argument (and ultimately the resolution) of the Google and Microsoft motions will deal with the fundamental question of how the public is to be informed about a surveillance system undertaken to protect that public. It will explore the restrictions on disclosure imposed by statute and this Court's orders and the limitations on such compelled non-disclosure imposed by those same statutes and the Constitution. Amici and their counsel, while mindful of constraints imposed by considerations of national security in this area, have substantial experience in advancing arguments rooted in the public interest in open judicial proceedings. Our participation in oral argument would, we submit, assist the Court in its deliberations, facilitate the public's understanding and evaluation of government surveillance programs, and provide transparency to a I . -3judicial oversight process that has been the subject of considerable discussion, some accurate, some not. Transparency is especially important in "light of the active, continuing public debate" surrounding the government's investigatory powers, "which has spawned a series of Congressional hearings, academic commentary, and press coverage." In re National Security Letter, 930 F. Supp. 2d 1064, 1076 (N.D. Cal. 2013). The ability of Amici to address these issues in a public setting in this matter will "further inform the ongoing public debate." Id. This Court itself has recognized "the public interest" in the general subject of surveillance and oversight. See In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Docket No. BR 13-109, Amended Memorandum Opinion (Aug. 29, 2013), at 29. *** Pursuant to FISC Rule of Procedure 7(h)(l ), Attorneys for the Amici certify that each of the undersigned Attorneys for Amici is a licensed attorney and a member, in good standing, of the bar of Untied District Court for the Southern District of New York. Pursuant to FISC Rule of Procedure 7(i), Attorneys for the Amici further certify that the undersigned do not currently hold a security clearance. October 10, 2013 OF COUNSEL: PETER SCHEER First Amendment Coalition ALEXANDER ABDO American Civil Liberties Union KEVIN BANKSTON Center for Democracy and Technology MATT ZIMMERMAN MARKRUMOLD DEAN RINGEL CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 (212) 701-3000 fabrams@cahill.com Attorneys for Amici Curiae 7 •• Electronic Frontier Foundation BERINSZOKA TechFreedom -4- -5- CERTIFICATE OF SERVICE I, Dean Ringel, hereby certify that on this day, October 10, 2013, pursuant to Rule 8(a) of the Rules of Procedure for the Foreign Intelligence Surveillance Court, I caused to be served two copies of the foregoing motion, on the following person by hand delivery: Michael Macisso Litigation Security Group U.S. Department of Justice Two Constitution Square 145 N Street, N.E. Suite 2W-115 Washington, DC 20530 I further certify that I caused to be served a copy of the foregoing motion on the following persons by electronic mail: Albert Gidari Perkins Coie LLP 1201 Third A venue Suite 4900 Seattle, WA 98101 agidari@perkinscoie.com Attorneys for Google Inc. James Garland Covington & Burlington LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004 jgarland@cov.com Attorneys for Microsoft Corporation ( , Nicholas J. Patterson U.S. Department of Justice National Security Division 950 Pennsylvania A venue Washington, DC 20530 Nicholas.Patterson@usdoj.gov -6- Attorneys for the United States of America By~ Dean Ringel CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 (212) 701-3000 dringel@cahill.com Attorneys for Amici Curiae
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