ACLU v. NSA — FOIA Lawsuit Seeking Court Opinions Addressing Section 702 Surveillance

Section 702 authorizes the widespread collection of Americans’ international communications without a warrant. The NSA, CIA, and FBI have used that authority to seize and search the personal communications of Americans and others on an immense scale. While this surveillance is ostensibly “targeted” at foreigners located overseas, the government uses this authority to acquire the internet communications and phone calls of Americans who are in contact with hundreds of thousands of people abroad. The law is set to expire at the end of 2023, and Congress must decide whether to reauthorize it.

Behind closed doors, the Foreign Intelligence Surveillance Court (FISC) has been examining novel or significant issues related to the government’s Section 702 applications since at least late 2020. Following an extended review process, the FISC issued at least one opinion addressing those significant issues. But the government has yet to release that opinion publicly, despite a legal requirement that it FISC opinions like this one publicly available to the greatest extent practicable.

This FOIA suit seeks disclosure of that secret opinion and others issued by the FISC since 2021. Without access to these opinions, the public lacks critical information about how Section 702 surveillance has expanded and evolved in recent years — information that is vital for a meaningful debate about whether the statute should be reauthorized.