PRISM

In too many ways, 2013 was a year that vindicated the long-standing paranoia of many Americans, particularly the more conservative. A bewildering number of stories littered the news that seemed to confirm exactly the sort of gross government overreach that previously sounded like a delusion of someone whose eyes were scanning the skies for black helicopters. In spring 2013, for example, we learned that the IRS had been targeting the 501(c)(3) applications of conservative and libertarian organizations, apparently based solely on their political and philosophical affiliations. Nothing in 2013, though, fanned the flames of political paranoia quite like revelations of the National Security Agency’s mass surveillance programs.

In Clapper v. Amnesty International USA, decided in February, the U.S. Supreme Court dismissed Amnesty International’s constitutional challenge to a portion of the FISA Amendments Act of 2008. In its 5-4 opinion, the Court found that Amnesty lacked Article III standing, in part because the plaintiffs could not show that they had necessarily been targeted for surveillance. When Edward Snowden later disclosed details of the NSA’s PRISM surveillance program, civil libertarians experienced something of a Pyrrhic victory. Standing would not be a problem in many future lawsuits because the revelation of PRISM established that millions of Americans had been subject to some NSA spying. The only question was whether that surveillance amounted to a violation of the law.

As we leave 2013 and 2014 dawns, some new developments have emerged . . . .

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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 . . . .

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* Edward Snowden is still in Hong Kong. [Los Angeles Times]

* Obama is a fan of the ladies. [The Blog of the Legal Times]

* Well, if you don’t like what the Supreme Court is doing, you can still sit outside First Street and protest. I doubt it’ll have any effect whatsoever, but knock yourselves out. [National Law Journal]

* Speaking of the Supreme Court, things are still harder for minority law students. Not that such pesky things like facts should stop Chief Justice Roberts from feeling confident about telling us how to end racial discrimination in our time. [National Law Journal]

* As if the curse of Superman wasn’t bad enough, now he needs a lawyer. [Bloomberg Businessweek]

* Lionel Messi is as creative with his tax bill as he is on the pitch. [QZ]

I don’t really feel the need to slap a “hero” or “villain” label onto Edward Snowden, the former Booz Allen Hamilton contractor who blew the lid off of the secret government email spying program now known as Prism. I mean, if I have to choose, I go “hero” because I basically don’t trust any program the government won’t even explain to its own people. And I certainly don’t trust anything that’s every come out of a FISA court, because how can I?

But I don’t know that this was the right or only way to bring this important information to light. I believe, I kind of need to believe, that the public’s ability to know and stop potentially massive government overreach rests on more than the good conscious of high school dropouts living in Hawaii. Perhaps so-called “small government” types will join together with progressives in saying that non-public courts issuing secret warrants is probably a bad thing.

With that in mind, I would love to see Snowden evade prosecution. It’s not his fault that he wasn’t able to forge alliance between Ron Paul supporters like himself and progressives who wish that politicians were as afraid of Fourth Amendment as the Second.

But how can he stay free? The Justice Department is loading up charges and Hong Kong just wants what’s good for business. Snowden is already on the move, where should he go? Come on people who went to law school for “international law” get your head out of complex cross border transactions and help this brother out…

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