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will be released to the public. This practice has facilitated declassification review. The
government should promptly create and release declassified versions of these FISC
opinions.

Discussion of Status:

The government has continued to declassify and release additional opinions over the past
year. In addition, the USA FREEDOM Act now requires that the government will conduct a
declassification review of each new decision of the FISC and FISCR “that includes a
significant construction or interpretation of any provision of law,” including decisions
interpreting the term “specific selection term” under the new system for accessing call
detail records, and that the government will make declassified versions of these opinions
publicly available to the greatest extent practicable. The Board also notes that the FISA
court maintains its own website where, at least since April 2014, it has been posting public
filings including briefs and declassified opinions and orders.

Recommendation 7: Publicly Release Past FISC and FISCR Decisions that
Involve Novel Legal, Technical, or Compliance Questions

Status:

Being implemented

Text of the Board’s Recommendation:

Regarding previously written opinions, the government should perform a declassification
review of decisions, orders and opinions by the FISC and FISCR that have not yet been
released to the public and that involve novel interpretations of FISA or other significant
questions of law, technology or compliance.
Explanation for the Recommendation:

The government should create and release declassified versions of older opinions in novel
or significant cases to the greatest extent possible consistent with protection of national
security. This should cover programs that have been discontinued, where the legal
interpretations justifying such programs have ongoing relevance.

Although it may be more difficult to declassify older FISC opinions drafted without
expectation of public release, the release of such older opinions is still important to
facilitate public understanding of the development of the law under FISA. The Board
acknowledges the cumulative burden of these transparency recommendations, especially
as the burden of review for declassification may fall on the same individuals who are
responsible for preparing new FISA applications, overseeing compliance with existing
orders, and carrying out other duties. The Board urges the government to develop and

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