ACLU v. NSA seeks to compel the government to disclose recent court opinions concerning spying conducted under Section 702 of the Foreign Intelligence Surveillance Act — one of the most sweeping surveillance authorities ever enacted by Congress. Public access to these records is essential for an informed debate as Congress considers whether to reform or reauthorize this surveillance law ahead of its sunset in December 2023.

The ACLU is challenging the constitutionality of the NSA’s mass interception and searching of Americans’ international Internet communications. At issue is the NSA’s “Upstream” surveillance, through which the U.S. government systematically monitors private emails, messages, and other data flowing into and out of the country on the Internet’s central arteries. The ACLU’s lawsuit was brought on behalf of the Wikimedia Foundation and eight legal, human rights, and media organizations, which together engage in trillions of sensitive communications and have been harmed by Upstream surveillance.

The ACLU and the Office of the Federal Public Defender of Colorado jointly represented Jamshid Muhtorov in challenging the warrantless surveillance of his communications under Section 702 of the Foreign Intelligence Surveillance Act (FISA), and the lawfulness of other spying methods the government used against him. Mr. Muhtorov was the first person ever to receive notice from the government that Section 702 had been used to spy on their communications. In a split decision in December 2021, the Tenth Circuit court of appeals ruled against Mr. Muhtorov.

The ACLU has filed three motions in the Foreign Intelligence Surveillance Court (FISC) asking it to release secret opinions authorizing the surveillance of Americans. The public has a right to see the legal decisions addressing novel surveillance programs that affect our privacy and free speech rights — but many of the FISC’s opinions remained closely guarded secrets. After the FISC and its appeals court rejected the ACLU’s public access arguments in a series of rulings, the ACLU asked the Supreme Court to review those rulings and to recognize that the public has a First Amendment right of access to the FISC’s opinions.

Section 702 of the Foreign Intelligence Surveillance Act permits warrantless surveillance of Americans’ international communications, and the government has used that authority to seize and search the personal communications of Americans and others on an immense scale. In September 2016, the ACLU submitted a Freedom of Information Act request to several government agencies seeking basic information about how the government conducts surveillance under Section 702. In November 2016, we filed a lawsuit to enforce the request in the U.S. District Court for the Southern District of New York.