The EFF and ACLU lawsuits in federal district court
Starting in 2009, various members of Congress warned of the government’s overly broad interpretation and use of Section 215 of the Patriot Act, 50 U.S.C. Section 1861. Responding to various members of the Senate Judiciary Committee’s insistence that the American public needed to know about the secret collection program, in 2011, the ACLU and EFF each made FOIA requests for records pertaining to the government’s interpretation and use of Section 215. On the tenth anniversary of the Patriot Act, October 26, 2011, the organizations responded to the government’s failure to produce any records by filing separate lawsuits seeking to enjoin compliance with their FOIA requests. EFF v. Department of Justice, Case No. 4:11-cv-05221 (N.D. Cal. filed Oct. 26, 2011); American Civil Liberties Union et al. v. FBI et al., Case No. 11 Civ. 7562 (SDNY filed Oct. 26, 2011).
The ACLU’s motion before the FISC
In response to Snowden’s disclosures about the telephony metadata program, on June 12, 2013, the ACLU filed a motion before the FISA Court (“FISC”), in conjunction with the Media Freedom and Information Access Clinic at the Yale Law School, for the publication of all FISC opinions interpreting Section 215 of the Patriot Act and evaluating its constitutionality. In re Orders Issued By this Court Interpreting Section 215 of the Patriot Act, Docket No. Misc. 13-02 (FISC filed June 12, 2013). The FISC filing was prompted by the government’s continuing resistance to the ACLU’s attempt to gain disclosure in federal district court. As part of its resistance, the Department of Justice had stated in court filings in the Southern District of New York that only the FISC had the authority to release its opinions. https://www.aclu.org/national-security/fisa-court-motion-requesting-public-access-rulings-nsa-mass-phone-call-tracking
An amicus brief in support of the ACLU’s motion was submitted by U.S. Representatives Amash, Broun, Gabbard, Griffith, Holt, Jones, Lee, Lofgren, Massie, McClintock, Norton, O’Rourke, Pearce, Salmon, Sanford, and Yoho.
A further amicus brief was filed by the Reporters Committee for Freedom of the Press and a coalition of media companies in support of both the ACLU’s motion and the Google and Microsoft motions for disclosure of statistics on FISC orders.