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The Supreme Court recently heard oral arguments in Clapper v. Amnesty International USA, a case on appeal from the Second Circuit in which the Court will address whether a group including lawyers, journalists, and civil liberties advocates possesses Article III standing in a suit seeking relief against the federal government’s ongoing warrantless wiretapping of international communications, possibly including conversations between United States citizens and their foreign contacts. The expanding warrantless surveillance was invoked as a way to keep tabs on potential terrorists under the Foreign Intelligence Surveillance Act Amendments of 2008.
Concerns regarding the potentially limitless governmental access to private communications taking place in relationships that traditionally enjoy high privacy standards, like those between lawyers and their clients, appeared to hit close to home for the Justices. This possible undisclosed access to information raises issues including malpractice worries on the part of lawyers and their clients and a dearth of willing sources for journalists due to the fear of identification. This expansive program of surveillance has created significant costs for those unwilling to risk exposure of their communications, as some have found that traveling internationally in order to communicate outside the government’s possible reach may be necessary to avoid divulging privileged or otherwise valuable information. Certainly, the calculation of the costs and benefits of cheap and timely communications between international parties is now altered.
The tone at oral arguments suggested that at least some of the Justices had an instinctual distaste for an ever-expanding power of the government to eavesdrop on communications made by its own citizens. Without any sort of review or disclosure requirements, the potential for abuse was recognized by Justice Kennedy, who pointed out that he found it difficult “to think that the Government isn’t using all of the powers at its command under the law.” The government’s expanding access coupled with the public’s increasing reliance on electronic communication creates an inherent danger to privacy that is evident in daily news headlines.
A solution for the current standing challenges faced by those seeking relief against the program might be available in the development of a method to detect or discover the warrantless surveillance, which would provide a way to supplement the plaintiffs’ claims that an injury resulted from having to undertake more expensive methods of communication to avoid the risk of surveillance. But what would be the likely effect of such a development on the government’s practice? One would imagine that if specifics of the government’s actions were no longer completely secret, it would have serious ramifications for some security programs.
If the Court finds that Article III standing is lacking in this suit, potential options for review of the current surveillance regime are seriously restricted, absent a development allowing citizens to find out when their international communications are being intercepted by the government. Could the reservations the Justices expressed during oral arguments regarding wide-ranging warrantless surveillance cause any of them to find standing on the part of the lawyers, journalists, and civil liberties advocates? If so, what are rationales that could support standing?
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