Tag Archives: communications

Sup. Ct. Rejects Wiretapping challenge

I just realized that I never posted this decision.  The background of Clappler v. Amnesty Int’l USA, No. 11-1024 (Feb. 26, 2013) is as follows.  Attorneys for Guantanamo Bay prisoners challenged the surveillance of their attorney-client and confidential communications.  In this case, to avoid surveillance on attorney-client communications and confidential communications, attorneys traveled to Guantanamo and had face-to-face communications.  Respondents brought this lawsuit to prevent any current, past, or future surveillance on these communications.  The Supreme Court rejected all of respondents’ arguments.

This case solely focused on Foreign Intelligence Surveillance Act (“FISA”), 50 USC 1881a.  FISA allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who (1) are not “United States persons” and (2) are reasonably believed to be located outside of the United States.  Before any surveillance, the government must obtain the Foreign Intelligence Surveillance Court’s (“FISC”) approval.

This case, in other words, only dealt with the question of the powers of the United States when performing surveillance of foreign communications.

In the 5-4 vote, the Supreme Court ruled that the plaintiffs could not prove by “pointing to specific facts” that any surveillance actually happened. Justice Alito held,

Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under§1881a at some point in the future.  But respondents’ theory of future injury is too speculative to satisfy the well-established required that threatened injury must be “certainly impending.” And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a.

(Italics in original).

So what meets the burden of injury in fact? Justice Alito stated that “[a]lthough imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative… that the injury is certainly impending.” (Italics in original).

In sum, Justice Alito delineated how respondents might meet their burden.

Respondents must have “actual knowledge” that the government is performing surveillance on their contacts or clients.

Alternatively, respondents might meet their burden through imminent surveillance if two conditions are met.  First, respondents must bring about “specific facts demonstrating that the communications of their foreign contacts will be targeted.”  Second, if imminence was shown, respondents must show that the government “will seek to use <§1881a-authorized surveillance (rather than other methods) to do so” for the respondent’s contacts and clients, and that the court granted the FISC order.

What posits an interesting conundrum is how will parties know if they are or will be subjected to surveillance under the specific provision of § 1881a of FISA?  The government knows for sure whether the plaintiffs’ communications where intercepted.  Thus, the parties might only become aware when a case is brought against them with information gathered from a FISC order.

 

via Supreme Court Rejects Challenge to Surveillance Law – NYTimes.com.

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Supreme Court to Consider Right to Sue in Challenge to Wiretap Law

From ABA Journal News:

In oral arguments on Monday, the U.S. Supreme Court will consider whether a group of lawyers, human rights groups and journalists have standing to challenge a warrantless wiretapping law.

The 2008 law authorizes the National Security Agency to monitor international emails and phone calls without a warrant for each target, according to Reuters and a press release by the American Civil Liberties Union, which is representing the plaintiffs.

ACLU deputy legal director Jameel Jaffer argues that the New York City-based 2nd U.S. Circuit Court of Appeals was correct when it ruled the plaintiffs may challenge the law because they faced a substantial risk their communications would be monitored and took costly measures to avoid it.

“We are hopeful that the Supreme Court will agree with the Court of Appeals that the constitutionality of the government’s surveillance powers can and should be tested in court,” Jaffer says in the press release.

The government argues that the plaintiffs don’t have standing because the surveillance is secret and they cannot prove they were harmed. A Slate column predicts the government will win, if the Supreme Court “holds to its modern, skeptical view of standing.”

But doesn’t mean the law can never be challenged, the Slate article says. “If the government prosecutes a target using information obtained from surveillance, that person will be able to argue that the introduction of the evidence would violate his constitutional rights. However, if the government avoids bringing such cases, then people who are spied on will be out of luck.”

A New York Times editorial offers a different view. “It would not require a legal stretch for the court to find that the plaintiffs had standing to sue,” the article says.The case is Clapper v. Amnesty International.

via Supreme Court to Consider Right to Sue in Challenge to Wiretap Law – News – ABA Journal.

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