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Leaked documents won't make it easier to fight NSA in court

Leaked documents won't make it easier to fight NSA in court


Legal precedents protecting domestic surveillance have been building for years

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When Amnesty International filed a lawsuit against the federal government in 2009 to stop authorities from monitoring communications between US citizens and citizens abroad, the Supreme Court likened the lawsuit to a conspiracy theory.

The court’s majority opinion called any suspicion that US citizen communications would be monitored "highly speculative." What’s more, the court argued, no one had been specifically hurt by any US government spying program, so there was no need to stop government surveillance in the future. Amnesty’s case was rejected by the nation’s highest court. In other words, their argument was shut down completely by the federal government.

And not much has changed since then.

While President Obama has now openly acknowledged the existence of broad surveillance programs that may shock and surprise the public, no one can say for sure who has been targeted and how they were affected. Options for challenging that surveillance are therefore extremely limited.

The Amnesty case solidified the National Security Agency’s legal standing to surveil any communications involving anyone outside the US. And while parts of last week’s leaks could allow new legal challenges to the NSA’s authority to search as it wishes, the deck is heavily stacked against privacy advocates: US courts have set precedents allowing government agencies to invoke "national security" in the name of withholding information.

That’s as true now as it was a week ago.

No harm no foul

Perhaps the most prominent US spying case is Clapper v. Amnesty International USA. It began in 2009, when Amnesty filed a lawsuit against federal law enforcement agencies including the NSA. The lawsuit is named for James Robert Clapper, Jr., the US director of national intelligence, though he was sued alongside the director of the National Security Agency, the chief of the Central Security Service, and the attorney general of the United States.

Amnesty opposed the portion of Section 702 of the Foreign Intelligence Surveillance Act (FISA) that allows law enforcement agencies to ask permission to set up surveillance on pretty much any targets as long as those targets are "non-United States persons located outside the United States."

Though the law says law enforcement agencies "may not intentionally target any person known at the time of acquisition to be located in the United States," Amnesty’s lawyers saw major potential problems. Its lawyers argued that Section 702 would easily allow federal law enforcement agencies to surveil US citizens — and especially Amnesty employees — simply because those citizens communicated with non-US citizens abroad.

The New York district court turned down Amnesty’s argument. It was too vague and Amnesty couldn’t prove that any US citizen had been targeted. So Amnesty appealed all the way to the US Supreme Court.

"we’re almost in the same place still."

On February 26th this year, Supreme Court justice Samuel Alito offered his majority opinion — and it wasn’t far off from the New York district court’s. Alito defended the federal government’s right to collect data. There were "no specific facts demonstrating" that domestic communications between US citizens had been stored or mined by law enforcement agencies, so there was no need to eliminate any portion of Section 702.

"It is highly speculative," Alito wrote, "whether the government will imminently target communications" of Amnesty International employees who are US citizens. Furthermore, since US persons "cannot be targeted" under US law, Amnesty’s "theory necessarily rests on their assertion that their foreign contacts will be targeted." Alito dismissed that assertion: "they have no actual knowledge of the government’s ... targeting practices," he wrote, and even if they did, "they can only speculate as to whether the government will seek to use [that] surveillance instead of one of the government’s numerous other surveillance methods."

Alito’s broader point — one that’s been parroted by various congressmen and even President Obama — is that no specific person has been able to show that they’ve been targeted or harmed in any way by the massive federal data collection program. So even if the Supreme Court takes for granted that people are being surveilled, no one’s been able to prove in court that they’ve been hurt in any way by that surveillance.

For those trying to mount a legal attack on surveillance programs, that’s a big problem. Under US law, individuals can’t challenge a law unless the suing party can prove they have been — or will soon be — harmed by that law. This principle is called "standing." If the suing party can’t prove they’ve been harmed, that party "lacks standing." It's Alito’s argument in Clapper: Amnesty can’t prove that the NSA’s surveillance hurts anyone, so it therefore lacks standing.

Because of that, "we’re almost in the same place still," Mark Rumold, staff attorney at the Electronic Frontier Foundation, told Talking Points Memo last week. "We know the program operates and it operates largely similar to how we envisioned it operating. But it still doesn’t give us a particular person whose information was obtained under [Section 702]."

Showing harm

The Clapper case is over and done with, in other words. And last week’s revelations will do little to change that. What could change, however, is the Patriot Act.

That’s the opinion of Faiza Patel. The co-director of New York University’s Liberty and National Security Program at the Brennan Center, Patel points out that last week’s most significant revelation may not be that companies such as Google, Facebook, and Apple have provided (unwittingly or not) information to federal law enforcement agencies, but that Verizon’s participation in data mining may show the kind of legitimate harm that’s seemingly absent from Amnesty’s argument in Clapper.

Patel argues that the secret court order requiring Verizon to turn over troves of call data might allow a new lawsuit challenging federal data collection.

"It’s very difficult to challenge surveillance because it’s secret, so you never know for certain that you’ve been surveilled," she told The Verge. "But now everyone who’s a Verizon business customer knows that their information was collected by the government. The steps they take to prevent collection" — whether it’s switching to a more expensive, more secure internet service provider or using some unnamed technology — "could be their ‘harm,’ if you will. They might need to spend money on particular types of technology to prevent this kind of data collection on their accounts."

"it’s secret, so you never know for certain that you’ve been surveilled."

That would show an expense, she said, and thus a reason to file another lawsuit against federal law enforcement agencies participating in domestic data collection.

The point, she said, is that — whether through another challenge to Clapper or some soon-to-be-filed class action lawsuit related to Verizon’s data disclosures — avenues remain in the US court system to challenge widespread surveillance and to get a clearer picture of the federal data collection program.

"It’s very difficult for the public to understand what it is that’s being done and how this information is being gathered," she said. "Add to that the technological complexity of some of the issues and you have a real lack of understanding. Hopefully what these revelations do is put a crack in that secret facade so people can try to understand what’s really happening."