FISA Challenge Struck Down by the Supreme Court

Friday, March 1, 2013, by Amanda Jones

In 1978 Congress passed the Foreign Intelligence Surveillance Act (“FISA”), a law governing “the surveillance of people in the United States for the purpose of collecting intelligence related to foreign powers.”  The Act was amended several times in the following years, the most recent amendment occurring in 2008.  With each amendment, the government, specifically the National Security Agency, was given more power to conduct surveillance of American’s communications with citizens of foreign countries.  The 2008 amendments permit the National Security Agency to conduct surveillance without first seeking a specific warrant.

The government is able to eavesdrop on a wide range of communications, especially communications involving foreigners, but the public cannot be exactly sure what type of communications the government is listening too because all the information is kept secret from the public.

Subsequent to the amendments in 2008 a group of Americans filed suit claiming that FISA violated their constitutional rights.    “[A]ll the plaintiffs argued that they were likely interacting with persons and groups outside the country who were being wiretapped—foreign sources for reporters, activists, and defendants in court cases.”   Plaintiffs argued that this wiretapping is a violation of their due process right.  After losing in New York district court on standing grounds, the plaintiffs appealed to the New York federal appeals court and won.  The appeals court found that this group of individuals was being injured by FISA and should be permitted to sue.   The decision then was appealed by the government to the United States Supreme Court.

On February 26th the Supreme Court, in a 5-4 decision held that the plaintiffs did not have standing to bring the suit.  They majority opinion, written by Justice Alito, held that because plaintiffs cannot show with certainty that their communications have been monitored by the National Security Agency, they do not have the right to sue at all.

Plaintiffs cannot show with certainty that their communications have been monitored.

It is not a surprise that the plaintiffs cannot show that they are being wiretapped, because of the governmental information surrounding FISA wiretaps is kept secret.  The plaintiffs must assume that they are being wiretapped because of their communications and then they must go out of their way to protect their privacy when talking to the foreigners who are likely of interest to the US government.  In fact, one lawyer representing a Saudi national on terrorism charges often had to travel abroad to ensure that his telephone conversations with his client and others related to the case were not intercepted by the government.

But, the Supreme Court says all of this is speculative because the plaintiffs and even the lawyer in the example above must all make the assumption that their communications are being intercepted, but not one of them can prove that interception actually occurred.

The dissent takes a more reasonable approach to the standing issue.  Justice Breyer wrote, “The plaintiffs’ standing depends upon the likelihood that the Government, acting under the authority of 50 U.S.C. § 1881a will have them by intercepting at least some of their private, foreign, telephone, or e-mail conversations.  In my view, this harm is not ‘speculative.’  Indeed, it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.”   This logical approach should have been used when deciding this case, but instead the majority decided to avoid the merits of the case, kicking the suit out on standing grounds.