Fourth Amendment

Supreme Court Will Hear Arguments Over Warrantless Wiretaps

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I'm listening …

The federal government has long claimed the authority to paw through our personal communications in search of something that threatens the broadly-defined public good and just might get the current crop of officeholders hailed as saviors of the moment (was that too cynical?). One loophole the feds claim to have found is an exception to the Fourth Amendment for any communication that crosses an international boundary. Without bothering with warrants, they've happily been listening in on phone calls and reading emails when one party to the exchange is located outside the United States. Now, the U.S. Supreme Court will consider a challenge to that policy. Says the American Civil Liberties Union:

The U.S. Supreme Court today agreed to consider whether plaintiffs represented by the American Civil Liberties Union have the right to challenge the constitutionality of a controversial law that authorizes the National Security Agency to conduct dragnet surveillance of Americans' international emails and phone calls.

At issue is an appeals court ruling that allowed the ACLU's challenge to the law – called the FISA Amendments Act of 2008 – to move forward.

"The appeals court properly recognized that our clients have a reasonable basis to fear that the government may be monitoring their conversations, even though it has no reason to suspect them of having engaged in any unlawful activities," said Jameel Jaffer, the ACLU's deputy legal director and lead counsel in the case. "The constitutionality of the government's surveillance powers can and should be tested in court. We are hopeful that the Supreme Court will agree."

The U.S. government argues that the plaintiffs should have to prove their calls have been monitored before they can sue — but that the government has no obligation to reveal who has been wiretapped. Should the court accept this line of reasoning, it would present certain … challenges to anybody caring to file suit. And in the absence of recourse to the courts, there's really no limit on the federal government's ability to listen in. The Electronic Frontier Foundation pointed out the problem not too long ago:

Former member of the Obama administration's Office of Legal Counsel Marty Lederman explains section 702 of the FAA "permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda—indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security."  All told, the "collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications" every day, according to the Washington Post.

But according to Holder, since secret FISA courts approve executive branch requests to collect "identified categories of foreign intelligence targets, without the need for a court order for each individual subject," the law is "subject to appropriate checks and balances." Given it targets large swaths of email—much of which undoubtedly involves Americans with little recourse to challenge the surveillance—due process is lacking from the entire procedure. And after the collection, the government has fought any judicial overview at all.

In fact, says the EFF, "the government has argued even if all the allegations of warrantless wiretapping are true, that the plaintiffs cannot challenge the constitutionality of FISA because exposing the program in court would compromise national security."

The Second Circuit Court of Appeals rejected the government's arguments last year. That means the Supreme Court has agreed to hear the government's appeal, and at stake is not just the ACLU's case, but a small vestige of our ability to ask for due process before our privacy is violated by the federal government.