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Plaintiffs May Sue the Government Over Warrantless Spying

A federal appeals court has ruled that the plaintiffs challenging the constitutionality of the government’s warrantless wiretapping law do have standing to pursue their case.

The plaintiffs, including Amnesty International as well as journalists, international aid groups, labor organizations, and attorneys, argued that the amendments to the Foreign Intelligence Surveillance Act (FISA) violate the U.S. Constitution. Theappellate court overturned(.pdf) a lower court’s decision that the plaintiffs had no grounds to sue because they had no evidence that they had been harmed by the law.

The case involves the FISA amendments, which allow the federal government to conduct surveillance of phone and Internet communications without a warrant if they believe that at least one party involved in the communication is overseas and suspected of having links to terrorist organizations.

The plaintiffs argued that, as international aid organizations or groups that do significant work overseas, they are likely to be targets of the government’s warrantless surveillance program. As such, they argued, they have been forced to take “costly and burdensome measures to protect the confidentiality of certain communications," such as traveling overseas to meet with clients rather than communicating electronically.

The government argued that the plaintiffs' case should not be allowed to proceed because they could not prove that the FISA amendments would cause them future injury. The court disagreed.

In the written opinion of the case, the court noted: “The government overstates the standard for determining when a present injury linked to a contingent future injury can support standing. The plaintiffs have demonstrated that they suffered present injuries in fact—concrete economic and professional harms—that are fairly traceable to the [FISA amendments] and redressable by a favorable judgment. The plaintiffs need not show that they have been or certainly will be monitored.”

The facts of the case must now be heard by a lower court to determine whether the FISA amendments are unconstitutional.Amnesty International v Clapper.pdf

♦ Photo of poster byMike Licht,