Fourth Amendment

Supreme Court Will Hear Arguments Over Warrantless Wiretaps


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.

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  1. This post totally misrepresents FISA.

    1. Section 702 authorizes the government, withstanding any other provision of law, to engage in the "targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information" (FAA ?702(a)).

    So the authorization is not nearly as broad as you portray it.

    2. Section 702 does not apply to ordinary criminal investigations. The acquisition must be to obtain foreign intelligence information.

    3. There are limits to FISA.

    Since Section 702 surveillance is not directed at or restricted to a particular place or device and does not require a specific warrant, Section 702 Surveillance must be conducted in accordance with "targeting procedures." (FAA ?702(c)(1)(A)). Targeting procedures must be "reasonably designed" to "ensure that any acquisition ? is limited to targeting persons reasonably believed to be located outside the United States," and to "prevent the intentional acquisition" of communications "known, at the time of the acquisition," to be purely domestic (FAA ?702(d)(1)). Domestic communications remain subject to surveillance under traditional FISA (FAA ?702(b)(4)).

    And. Section 702 Surveillance must use minimization procedures (FAA ?702(c)(1)(A)). Minimization procedures are measures taken to minimize the acquisition and retention of information about US persons.

    1. I don't see how your interpretation of the scope of FISA in terms of communications crossing the U.S. border differs with that of the ACLU or EFF. And the claim that the wiretaps are targeted only at legitimate intelligence targets is one of the points contested in the lawsuit. Pointing at a phrase in the law doesn't indicate how the law is being used.

      1. The ACLU makes it sound like they can listen to any call they want. They can't. They have follow the procedures. And they can't target US persons.

        1. Unless, perhaps, if there are "Secret" interpretations of the law.

          1. They can always ignore the law. I am telling you what the law says. And the law says that you can't target US persons and you have to take measures to ensure that you are not listening to US persons or retaining their communications.

            If Reason doesn't like the law, good for them. But they ought to at least try to understand the law as written before pontificating on it.

            1. And how exactly do you make sure the government is following the law? Isn't that what the ACLU and the EFF and EPIC are trying to do?

              1. How do we know anyone is "following the law"? And since the NSA doesn't share information with anyone, I find it highly unlikely that they are using this other than what the law says.

                So you use it in a ordinary LE investigation against a US person. Just exactly how do you plan to get that information admitted into court? What good would it do you?

                1. "How do we know anyone is "following the law"?"

                  Well, with legitimate laws, we have a victim who complains when someone is not following them. With the government, it's admittedly more difficult.

                  1. And if the police are tapping your phone right now, you will know it how?

                2. FTA: "Little is known about how the FISA Amendments Act has been used. In response to a Freedom of Information Act lawsuit filed by the ACLU, the government revealed that every six-month review of the act had identified "compliance incidents," suggesting either an inability or an unwillingness to properly safeguard Americans' privacy rights. The government has withheld the details of those "compliance incidents," however, including statistics relating to abuses of the act."

                  And from the Brief In Opposition: In the final paragraph of its petition, the government asserts without explanation that requiring it even to defend the constitutionality ofthe FAA could result in "disrupt[ion to] important Executive Branch activities protecting the national security." Pet. 34..... The government's assertion is nonetheless noteworthy, because it makes clear that the government's concern is not with the possibility that the statute will be subject to judicial review in this case but with the possibility
                  that the statute will be subject to judicial review at all.

                  The ACLU wants to know if the government is in fact following the law, the government says "you just have to trust us".

                  1. I am pretty sure the NSA does share information with the President, the CIA, the FBI, the Pentagon, etc. The crux of the case from the ACLU's POV isn't whether or not the NSA is illegally gathering information on criminals, it is that it is gathering information on everybody. Your argument sounds very much like "if you aren't doing anything wrong, you have nothing to worry about."

                    Just because the NSA can't use my e-mail ordering ED pills, butt plugs and nude pictures of Bruce Vilanch from a Canadian company against me in a court of law doesn't mean that I would just as soon not have anybody know my shopping habits and that a dragnet wiretap keeping tabs on people ordering merchandise from Canadian adult novelty companies would be legal.

    2. And since FISA warrants are issued by secret courts, how can we be sure that they aren't being issued for routine criminal investigations?

      I seem to recall it taking all of a few months before the PATRIOT act was being used to investigate organized crime and drug cartels.

      1. Because the Court doesn't issue warrants for those.

        Look, I can't prove a negative. I can't tell you that they are not just ignoring what the law says. But I can read the damned statute just like anyone else. And it would be nice if Reason did the same.

        1. There's a distinction between "doesn't" and "isn't allowed to." Knowing what the statute says is all well and good, but knowing what the courts et al are actually doing seems equally relevant.

          1. How are they supposed to do this if they have to tell the world who they are listening to? That makes it a bit difficult to run an intelligence operation wouldn't you say?

            And think about this for a moment. How exactly would this be used to spy on US citizens for an ordinary criminal investigation? First NSA would have to cooperate in this crime with the FBI or some other LEO. Considering that those organizations are generally at each other's throats, that is pretty unlikely. Second, once they got the information, they would have to be able to use it. How do you get it admitted into court? You couldn't even use it as a basis for a search warrant without setting off a tone of alarm bells.

            1. As a lawyer, you should know damned well that not everything LE authorities want to collect is captured with the purpose of being used in court.

              1. What other purpose is there? It is not that hard to get a warrant. Sorry, but the LEOs are not out going to NSA, who won't talk to them anyway, to get information on criminal cases.

        2. John, the writer's don't care because this has been one of their pet anti-WOT causes, or they actually object to the idea that the US government does not need warrants to when doing surveillance on foreign governments and organizations outside of US borders. The idea that the US was indiscriminately wiretapping US citizens under FISA has always been a propganda bogeyman.

  2. The really fucked up thing here is that the SC is not hearing the case to determine if they are legal or illegal, but whether people have the right to even bring a case challenging their legality.

    What kind of a fucked up world are we now living in? Thanks a lot, Al Qaeda. You win.

    1. Isn't the problem that the people who are wiretapped this way can't bring suit because they never find out about it?

      1. It's part of it. The government's defense, in part, is that there is no standing since they are secret, and the plaintiffs cannot prove any actual damages if they cannot show that they have been tapped.

        Odd that the EPA can preemptively sue to keep something from happening to a piece of private property (without actual damages) under a dubious and unconstitutional argument, but a citizen cannot do the same on very real infringements on their basic constitutional rights.

        I'm not the least bit surprised, but it still is odd.

      2. Just like the fraking TSA no-fly list, this whole thing is one great big catch-22.

        bin Laden may be roasting in Hell, but I'll be the bugger has a smile on his face watching us continue to throw away our greatest principals!

  3. Given the debate over the NDAA and the Gitmo rulings and the EPIC/Google/NSA ruling and remarks made on procedural and statutory due process, I am not very hopeful we are going to see anything much beyond the circular argument that the government can't possibly be infringing your rights since you are only entitled to the rights the government gives you.

  4. It was issues like this that left the Democrats without any credibility as defenders of civil liberties.

    As bad as the Bush Administration was on these issue, there was nary a word against this sort of thing brought up by the Democrats during the hottest part of the War on Terror. Actually, they signed on to all of it.

    The Democrats may have been loyal, but they didn't offer any opposition.

    The real solution to this, still, is seeing Congress completely revise FISA to get rid of the parts that offend civil libertarians.

    But that won't happen because neither Obama nor the Democrats really give a shit about our civil liberties.

  5. lol, Here is a big Middle Finger Salute to the Supreme Kangaroo Court lol.

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