Media outlets renew push for access to secret spy court decisions

A group of prominent media companies, including the New York Times and Bloomberg, are fighting a decision by America’s secret spy court to exclude a media advocacy group from seeking access to the court’s rulings.

In a petition filed on Friday (below), the media companies complained that the Foreign Intelligence Surveillance Court “ignored Supreme Court precedent” by ruling that the Media Freedom and Information Access Clinic at Yale Law School had no standing to seek access to decisions that explain why the NSA can collect millions of phone and email records.

The claims set out in the petition – which was also signed by entities like Politico, the New Yorker and the Reporters’ Committee for Freedom of the Press — appear to provide further grist to a claim by the New York Times in July that the secret FISA court “has quietly become almost a parallel Supreme Court,” issuing its own series of rulings on important constitutional questions.

A crucial problem, according to the media outlets, is that the FISA Court is making the constitutional rulings about the Patriot Act and other government powers in secret, without an adversarial process:

“the FISA Court has only one side — the government — arguing before it. Disclosing precedential opinions would be a major step towards fostering trust in the Court and public understanding of surveillance.”

The filing comes as part of a multi-pronged fight by the media, tech companies and civil liberties groups to pry open the workings of the secret court, whose activities are under scrutiny as a result of ongoing leaks about surveillance by former NSA contractor Edward Snowden.

In September, the FISA court ruled that the ACLU could petition the court for access to some of its decisions — but added that the Yale media law clinic could not. According to the media outlets’ new filing, the choice to exclude the clinic “interferes with the most basic constitutional commandments and common-law traditions underlying the access of courts, and is particularly problematic in a court already so closed off from public view.”

The media companies also pointed out that they have fewer resources to defend free speech and civil liberties issues in court, and must rely on newer groups like the Yale law clinic to help lift a legal torch they carried for most of the 20th century:

“while [the media companies] feel that news of their ‘death’ has been greatly exaggerated, shrinking budgets at large media companies have inevitably meant a drop-off in First Amendment litigation from those outlets”

The media companies also took issue with the FISA Court’s view that only entities that have previously participated in public debate about Section 215 of the Patriot Act have a right to witness the court process.

More broadly, the companies argued that, while news outlets have long been a surrogate for public access to the courts, the right to attend trials has belonged to any citizen with “a watchful eye” since colonial days.

The filing, posted below, was first reported by @fisacourt, a Twitter account that announces filings sporadically published on the secret court’s rudimentary website.

NYT Et Al Re Fisa Court

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Image by Chris DeRidder via Shutterstock.