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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?

Emma Stephens

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6 Responses to This Call May Be Monitored…

  1. Tim says:

    As someone who has made privileged calls from within the United States that were doubtless tapped by the U.S. government, I cannot urge more strongly the importance of restricting government ability to tap international communications. Whether the activity being discussed by the government is illegal or not, the government should not be permitted to use generalized suspicion to make such broad intrusions into an area of private communications. As the court implicitly held in Katz, there is a reasonable expectation of privacy in telephonic communications. Although the Katz holding seems only to extend to domestic calls, in a world that is becoming increasingly global, the distinction between the domestic and international world in regards to communications is breaking down. Communications of American citizens to a foreign recipient should require probably cause in order to listen in and the tap should comply to the 4th Amendment restrictions that government domestic calls. The government tapping every international call is something that shocks the modern senses, and, as recognized by Justice Kennedy, it is difficult to trust the Executive to restrain itself from using all powers available to it.

  2. Shannon Han says:

    This situation is especially troubling given the exponential rise in wiretaps and digital surveillance that is pursued by and granted to the Justice Department. With the increasing number of situations and people affected, the probability of harm increases, but I guess we’ll never know if there ever is actual harm. There are some really good scenarios in the oral arguments though.

  3. Caitlin Angelette says:

    The 4th Amendment specifically lists “papers” as a thing requiring special protection. Phone calls don’t count, but warrantless email tapping might be a problem as “electronic papers”

    • CLA says:

      Interestingly enough under existing Supreme Court jurisprudence it’s not exactly clear what is meant by “papers.” You’re personal diary is probably protected (reveals your personal, intimate thoughts which you don’t reveal to the world), but maybe nothing more than that.

  4. Nick B. says:

    We also have a senate bill circulating that may (according to CNET) allow warrentless email tapping or may not (according to Senator Leahy). I’m quite interested to see where all of this heads.

    http://www.huffingtonpost.com/2012/11/20/electronic-communications-privacy-act-patrick-leahy_n_2166759.html?utm_hp_ref=technology

  5. Erin Reimer says:

    Upon first read, my immediate reaction is that the injury alleged here is entirely too speculative to create Article III standing. Cases like Lujan made it clear that alleging something like, “I’m injured, because I have foreign sources and thus the Government might someday tap my phone lines” just wouldn’t be enough. Upon further research, however, I think the plaintiffs have a good case for standing based on their assertions that they have already taken reasonable steps to protect their activities based on their concerns; such actions represent the potentially “chilling” effect that the law could have, which I think could be a quite plausible basis for standing—particularly because, as you pointed out, the justices might have special interest in the case as lawyers, themselves. Very interesting summary of the case and potential ramifications of the law!