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Media Freedom and Information Access Clinic, ACLU Ask Spy Court to Release Secret Opinions on Patriot Act Surveillance Powers

Together with the American Civil Liberties Union (ACLU), Yale Law School’s Media Freedom and Information Access Clinic filed a motion Monday with the secret court charged with overseeing government surveillance in national security cases, requesting opinions that may shed light on the scope, meaning, and constitutionality of Section 215 of the Patriot Act.

The filing comes one week after media accounts published a Foreign Intelligence Surveillance Court (FISC) order requiring Verizon to turn over months’ worth of phone call data. The secret order used Section 215 of the Patriot Act as the legal justification for the action, which has been the source of intense scrutiny and public debate in recent days. 

Max Mishkin ’14, a member of the clinic, said the ACLU reached out to the clinic over the weekend and they moved quickly to join the case. The motion offers two separate grounds for releasing the secrete rulings: the public's constitutional right of access to judicial decisions under the First Amendment, and the FISC's independent authority to publish these rulings as it sees fit.

“In light of the recent news, it is crucial for the FISC to reveal how it has interpreted the scope of Section 215, so that the public can take part in a meaningful debate over balancing privacy and security,” said Mishkin.

“Releasing certain key FISC opinions will help inform a necessary public conversation about surveillance, privacy, and the scope of the Patriot Act—a discussion that has been much inhibited by the government's secret management of this program.”

David Schulz '78, director of the Media Freedom and Information Access Clinic and a visiting lecturer at Yale Law School, said the lawsuit is about reclaiming a core level of transparency that is critical to protecting “the thin line that separates democracy from tyranny.”

“New types and levels of surveillance may be inevitable in these times,” said Schulz. “But a democracy cannot function if the basic rules and procedures that govern the surveillance and prevent abuse are not disclosed. A secret court that issues secret orders deciding secret motions based on secret legal principles threatens the fundamental principles on which this nation was built.”

The Media Freedom and Information Access Clinic at Yale Law School works to support a robust investigative role for news organizations and to preserve the public’s right of access of information, thereby ensuring a well-informed public sphere.

For more information on the case, visit the ACLU website.