Surveillance law: US group can't challenge it, Supreme Court rules

These critics contend that the law is unconstitutional because it bypasses the long-established requirement that the government demonstrate to a neutral judge that there is probable cause to justify the surveillance of a particular individual. That justification must be presented before the government can start collecting intelligence.

In contrast, the new foreign-surveillance law allows the government to intercept and store substantial volumes of communications information – including communications involving US citizens – without an individualized warrant.

Officials must pledge that the target of the intelligence gathering is a foreign person and that it will attempt to minimize any incidental information collected about Americans.

The judicial oversight of this process involves review of the protective procedures, rather than review of the government’s actual surveillance of individuals.

The group of lawyers, journalists, and human rights workers sought to have the law declared unconstitutional. They argued that their work put them in frequent contact with individuals likely to be targeted for electronic surveillance.

To counteract that threatened invasion of their private communications, they began traveling overseas to conduct face-to-face meetings rather than risk having their communications intercepted by the US government.

A federal judge threw the case out, ruling that the lawyers, journalists and human rights workers lacked the necessary standing to bring the lawsuit. The group, the judge said, could not demonstrate that they have suffered actual harm because it is not clear that they were ever subject to surveillance and it is merely speculative that they might be subject to it in the future.

On appeal, a panel of the Second Circuit Court of Appeals in New York reversed, ruling that members of the group had suffered a concrete injury because of the extra international travel they had undertaken in an attempt to avoid US surveillance of their telephone and Internet communications.

In reversing that decision, the high court said the appeals court erred in considering the extra costs and burdens sustained by the individuals in trying to shield their own communications from surveillance.

To allow legal standing based on a party’s fear of possible government action would water down the fundamental requirements of who is entitled to litigate an issue in federal court. “Respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending,” Justice Alito wrote.

Alito was joined in the majority by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas.

Breyer’s dissent was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

The case was James Clapper, Director of National Intelligence v. Amnesty International (11-1025).

Previous

1 | 2