The Government Can Spy on You Without a Warrant
The Supreme Court is considering the right of citizens to sue over a law that lets government agents conduct dragnet telephone and email surveillance. The current case won’t determine the constitutionality of the sweeping powers of the Foreign Intelligence Surveillance Act, or FISA, but a ruling against the government could set the stage for a constitutional challenge next year.
FISA was passed in 1978 to give government agents the ability to eavesdrop on communications between foreign parties without a warrant. But a FISA amendment passed in 2008 allows agents to spy on communications involving innocent U.S. citizens if their locations or identities are unknown, according to Jameel Jaffer, a staff attorney with the American Civil Liberties Union. Jaffer argued before the Supreme Court that attorneys, journalists and other plaintiffs have grounds to sue over the costly precautions that they have had to take to guard against government surveillance.
“When attorneys are talking to their clients outside the United States, they might be talking about things they’re obligated to keep confidential,” explained Alex Abdo, an ACLU staff attorney involved with the case. “So if they feel they might be under surveillance, they might have to be nonspecific or they might forego communicating about those things altogether. They might have to consider traveling abroad to have the conversation in person.”
Abdo said that reporters covering international affairs are also hampered by the possibility of eavesdropping.
“Journalists are typically less worried about preserving their own confidentiality than they are about protecting the anonymity of their sources,” he said. “They depend on these trust-based relationships with people who share the type of information that the government is after.”
Justices Wary of Expansive Powers
A constitutional challenge to these broad surveillance capabilities was brought by a group of attorneys on the same day the 2008 amendment was signed into law. But the trial judge ruled that they did not have standing to sue, as their “abstract fear that their communications will be monitored” did not amount to actual injury. An appeals court reversed that ruling in 2011, finding that the plaintiffs acted reasonably in taking costly measures to avoid being monitored.
With the matter before the Supreme Court, it appears as though at least some of the justices suspect the law may have been sufficiently harmful to certain parties. Justices Stephen Breyer and Elena Kagan noted a declaration by attorney Scott McKay, who represented two clients accused of terrorism and other crimes. McKay, a U.S. citizen, said that roughly 10,000 of his phone calls and 20,000 of his work-related emails were intercepted by government agents.
Justice Anthony Kennedy, who is often the swing vote on split decisions from the Supreme Court, was incredulous at Solicitor General Donald Verrilli’s repeated insistence that fears over surveillance amounted to mere speculation.
“You are saying that the government has obtained this extraordinarily wide-reaching power and we have extraordinary risks that face this country and the government’s not going to use it,” Kennedy said. “It’s hard for me to think that the government isn’t using all of the powers at its command under the law in order to protect this country.”
Abdo notes that even though attorneys and journalists are obligated to keep sensitive communications confidential, most will have no way of knowing if their communications are being spied upon under FISA. Because the information being harvested is used for foreign intelligence rather than criminal evidence, the government rarely has a reason to make the interceptions public.
“The statute gives the government the authority to cast a wide net,” Abdo said. “It allows geographical targeting, it allows the acquisition of thousands or millions of communications at a time. The government is not always identifying specific individuals or specific places. They don’t have to define these things. It authorizes a type of categorical surveillance.”
Do you think U.S. citizens should be able to sue for having to go out of their way to avoid surveillance? Do you think the latest FISA amendments are unconstitutional? Let us know in the comments section below.