Way back in the callow, innocent days of, um, February 2013, the U.S. Supreme Court delivered its opinion in Clapper v. Amnesty International. The case stemmed from a challenge of the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a.

If you didn’t pay much attention to the Court’s decision in Clapper back then, you might want to revisit it now that we know we’re all subject to NSA surveillance . . . .

Section 1881a authorizes the Attorney General and the Director of National Intelligence to collect foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States. In order to proceed with these wiretaps, the Attorney General and the Director of National Intelligence must get approval from the Foreign Intelligence Surveillance Court (FISC). The plaintiffs in Clapper, American attorneys, journalists, and human rights workers who routinely communicated with non-US persons who are probable targets of §1881a surveillance, sought to enjoin the surveillance and have it declared unconstitutional.

After the parties moved for summary judgment, though, the District Court held that the plaintiffs did not meet Article III’s requirements for standing to sue. The Second Circuit reversed.

When SCOTUS took up the case earlier this term, the Court split 5-4, with Justice Alito writing for a majority comprised of Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justice Breyer filed a dissent, joined by Justices Ginsburg, Sotomayor, and Kagan.

The majority found that the plaintiffs lacked standing. The plaintiffs argued that they suffered injury as a result of § 1881a because (a) given who they were talking to, surveillance was an objectively reasonable likelihood, and (b) they’d already had to take preventive measures, such as traveling for in-person meetings with clients and sources, to avoid having the government listen in on sensitive phone calls. To do otherwise, the plaintiffs argue, would violate their ethical obligations to protect the confidentiality of their conversations. The majority rejected both arguments.

A few things might strike you as strange about this ruling, even as you hearken back to Con Law and strain to recall the holding in, say, Lujan v. Defenders of Wildlife. The rather unique nature of the government action authorized by §1881a makes the facts of this case tricky to analogize with other standing cases. It’s hard to meet the traditional standards for showing injury in fact when your claimed injury is the result of a government program the very secrecy of which is part of why you want to contest its constitutionality in the first place. At oral argument, Solicitor General Don Verilli said:

“[The plaintiffs] are asking the Court to consider invalidating the statute based on an assumption either that there is dragnet surveillance or an assumption that their clients are going to be put under surveillance, without a single fact to substantiate either of those assumptions.”

To which Justice Ginsburg immediately responded:

“Which they can never, never have, and that’s what makes this — if — if there could be a person in this category who would know, but the person will never know.”

Justice Ginsburg then asked about the minimization procedures embedded in FISA. General Verrilli replied:

“It’s a little bit hard to talk about, Your Honor, because, to the extent we’re talking about the process of acquiring foreign intelligence, that’s a very sensitive intelligence method; and, to the extent minimization plays into that, it’s — it’s not public information.”

So, the plaintiffs may be the targets of actual §1881a surveillance. They can’t prove it without the government admitting as much. The government, though, need not admit to it unless and until it decides to use the fruits of that surveillance.

No one should treat lightly the lowering of Article III minimums, but neither should we overlook the apparent consequence that this decision effectively insulates this portion of FISA from constitutional challenge. If these plaintiffs lack standing, who would have it?

The majority helpfully suggests that, if nothing else, an electronic communications service provider that has been called upon by the government to assist in its surveillance efforts might have standing to challenge the order before FISC.

That seems like pretty weak sauce if you are individual who thinks her Fourth Amendment rights have been violated by government spying, but them’s the breaks of Article III’s case or controversy requirement, according to SCOTUS.

What’s that you say? So, we can’t get to the merits of a challenge to a government surveillance program because the plaintiffs can’t show that the government is actually targeting them?

Enter the NSA’s PRISM program, which for the present conversation ought to be filed under “Hidden Blessings.”

On Tuesday, the ACLU and the New York Civil Liberties Union filed a new suit against the government. This case again seeks declaratory and injunctive relief, this time challenging the government’s dragnet acquisition of the ACLU and NYCLU’s telephone records under Section 215 of the Patriot Act, 50 U.S.C. §1861. Again the NSA’s surveillance efforts face the challenge that they violate the First and Fourth Amendments.

Unlike in (the earlier) Clapper, standing should not be a problem here. The ACLU is, conveniently, a Verizon wireless customer. On June 5, The Guardian revealed that the NSA has been systematically collecting metadata for all phone calls made or received by Verizon customers. The government has, of course, since confirmed the authenticity of the FISC order requiring Verizon to do so.

Whatever your views on the propriety of the NSA’s surveillance programs, you should be pleased that courts should finally have the opportunity to reach the merits of the constitutional question. Has our government been overstepping the bounds of the Bill of Rights in its attempts to counter terrorism? Has it gone too far? Are we sacrificing important safeguards of our liberty in order to fight this undeniably real foreign threat?

Writing without a pseudonym for ATL — with a name like mine, no less — suggests that I’m not necessarily always the fiercest defender of my own personal privacy. I am, however, fiercely defensive of the Fourth Amendment. If one blessing emerges from the recent revelations about NSA surveillance, it’s that we may finally get to argue in court about the answers to the questions above. If there’s one good thing about finding out that the government is spying on us, it may be that we finally have standing to challenge the government spying on us.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]


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