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An email I wrote to FOI-L about FOIA and the FISA Court.

This isn't Odie's exact point, but even putting aside the FOIAs to the NSA, the NSA disclosures have definitely created an environment where these FOIA lawsuits (and other lawsuits) over surveillance-related sensitive material are more likely to succeed.

With the exception of defending the bulk collection of phone metadata, and the secrecy of that operation, the FISA Court's new public docket has told a very consistent story since July of the US government either losing their arguments in front of the Court, or advancing proactively chastened arguments.

For example, the ACLU was one of the original two plaintiffs that got the first FISC public dockets, case 13-02, moving for the declassification and release of any FISC opinions that interpreted section 215 of the Patriot Act.

The US government argued vigorously against the public's right to see that interpretation, but the FISC told them to "promptly conduct a declassification review" on the one opinion that wasn't also at issue in their separate FOIA lawsuit (that eventually also got resolved in the ACLU's favor, and resulted in the recent huge document dump by the DNI on IC On the Record).

The US got back to the FISC a couple weeks ago and said "The Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided." Two days later, the FISC ordered the US to provide an explanation for that judgment, and we're now waiting for that explanation by Dec 20th.

While it's definitely possible for this all to have happened outside of the NSA disclosures, it's hard to believe this would be the dynamic. It feels like the judicial branch is well aware of the spotlight on them right now.

That's all just to say, that FOIA, and information access laws in general, have been given a much friendlier climate in which to operate, at least around national security and surveillance issues. The NSA FOIA office being forced to give hundreds of Glomars a day is an unfortunate waste of their time, but not the main story.

-- Eric

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