Opinion and Order

OCR transcription for search; preserved printed pages are authoritative

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# UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURAnn Flynn Hall, Clerk of Court WASHINGTON, D.C.

IN RE MOTION OF PROPUBLICA, INC. FOR
THE RELEASE OF COURT RECORDS

Docket No. Misc. 13-09

## OPINION AND ORDER

Pending before the Court is ProPublica, Inc.'s motion for the release of court records,
which was filed on November 12, 2013, in the wake of publicity about the United States
government's bulk collection of data under the Foreign Intelligence Surveillance Act.
ProPublica's motion invokes Rule 62 of the United States Foreign Intelligence Surveillance
Court Rules of Procedure and the qualified First Amendment right of access to compel the Court
to publish certain opinions that were cited in In re Application of the FBI for an Order Requiring
the Production of Tangible Things From [Redacted], No. BR 13-109 (Foreign Intel. Surv. Ct.
Aug. 29, 2013). See ProPublica's Mot. at 1, https://www.fisc.uscourts.gov/sites/default/
files/Misc%2013-09%20Motion-2.pdf.

About two weeks before ProPublica filed its motion, the American Civil Liberties Union,
the ACLU of the Nation's Capital, and the Media Freedom and Information Access Clinic jointly
filed a motion requesting that the Court disclose classified judicial opinions addressing the legal
basis for bulk collection. See Mot. of the ACLU, the ACLU of the Nation's Capital, & MFIAC
for the Release of Ct. Rs., Misc. No. 13-08 (Foreign Intel. Surv. Ct. 2013),
https://www.fisc.uscourts.gov/sites/default/files/Misc%2013-08%20Motion-2.pdf. Like
ProPublica's motion, the ACLU motion argued that both FISC Rule 62 and the qualified First

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Amendment right of access authorized this Court to exercise jurisdiction. Id. at 1. Because the
ACLU motion was filed first, it advanced to a decision before the Court considered ProPublica's
motion. The former motion was finally resolved four months ago when the United States
Foreign Intelligence Surveillance Court of Review issued its decision in In re Opinions and
Orders by the FISC Addressing Bulk Collection of Data Under the Foreign Intelligence
Surveillance Act, 957 F.3d 1344 (Foreign Intel. Surv. Ct. of Review Apr. 24, 2020) (per curiam).
The FISCR held that it lacked jurisdiction over the petition seeking appellate review of then-
Presiding Judge Rosemary M. Collyer's February 11, 2020, decision denying the motion. Id. at
1358.

This Court is now convinced that exercising jurisdiction over the pending motion in this
matter would be inconsistent with the Foreign Intelligence Surveillance Court of Review's
decision. The FISCR determined that it lacked statutory subject-matter jurisdiction because
Congress did not empower the federal courts established under FISA to consider constitutional
claims, a freestanding motion asserting a qualified First Amendment right of access did not fall
within any of the FISCR's jurisdictional categories enumerated in the statute, and the movants
were not among the parties authorized by the statute to seek FISCR review. Id. at 1350-51.
Noting its "significantly limited powers carefully delineated by Congress," the FISCR also
declined to rely on the doctrine of ancillary jurisdiction to exercise discretionary authority over
the petition. Id. at 1356-57. It explained that such authority must be exercised with restraint,
discretion, and great caution, id. at 1356, n.69 (citing Ex Parte Burr, 22 U.S. 529, 531 (1824)),
and that the movants had not been involuntarily haled into court, did not seek to assert rights in
an ongoing action, did not establish a factual connection to the classified material, and did not
present circumstances warranting the exercise of the FISCR's inherent judicial power to enforce

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its mandates and orders or protect the integrity of its proceedings and processes. Id. at 1356. In
addition, because the "crux" of the movants' claim to disclosure "[lay] within the Executive's
clear authority to determine what material should remain classified," the FISCR concluded that
"respect for the separation of powers dictates that we dismiss the Petition for lack of jurisdiction,
as we have no business deciding the merits of the Movants' constitutional claim." Id. at 1357
(internal quotation marks omitted).

Applying the FISCR's reasoning to whether this lower Court has jurisdiction over
ProPublica's motion leads to the same result. Like the FISCR, the FISC is not empowered by
Congress to consider constitutional claims generally, First Amendment claims specifically, or
freestanding motions filed by persons who are not authorized by FISA to invoke this Court's
jurisdiction. See id. at 1355 (stating that "specialized courts like the FISC" are not "empowered
to consider claims arising under the First Amendment to the Constitution"), 1350-51; 50 U.S.C.
§§ 1801-1885c. And because all of the above-described reasons why the FISCR found it
unwarranted to exercise ancillary jurisdiction over the ACLU motion apply to ProPublica's, the
FISC is foreclosed from doing so here.

Accordingly, it is ORDERED that the Motion of ProPublica, Inc. for the Release of
Court Records is DISMISSED for lack of jurisdiction.

SO ORDERED this 15 day of September, 2020.

15/

JAMES E. BOASBERG
Presiding Judge, United States Foreign
Intelligence Surveillance Court