On Tuesday, the U.S. Supreme Court rejected a lawsuit challenging a federal law that gave the government a broader ability to eavesdrop on international communications.
In a 5-to-4 ruling split along ideological lines, the Court shielded a government anti-terrorism program from facing a Constitutional challenge.
The law is called the Foreign Intelligence Surveillance Act of 1978, or FISA. Congress amended FISA in 2008, giving the National Security Agency broader authority to monitor emails and phone calls of any U.S. citizens, so long as they are suspected of communicating with anyone located outside the United States. The amended provision was set to expire at the end of last year, but Congress reauthorized the bill for another five years.
In Clapper v. Amnesty International USA, journalists, lawyers, and human rights advocates challenged the constitutionality of the law on the grounds that they might be subject to wiretapping. Justice Samuel Alito, writing for the majority, held that such fear was too speculative, so they lacked standing to sue.
“They cannot manufacture standing by incurring costs in anticipation of nonimminent harms,” Justice Alito wrote. The plaintiffs claimed that the reason they had not been harmed yet was because they had taken steps to avoid the surveillance (such as traveling to meet clients in person and not sending emails or talking on the phone).
Justice Stephen Breyer wrote the Court’s dissenting opinion. He agreed with the plaintiffs that, if they had not shown harm already, it was only a matter of time. “Indeed, it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen,” Justice Breyer wrote.
To the dissent, the fact the plaintiffs had to alter their work practices to avoid having confidential calls overheard indicated some harm already. “In my view, this harm is not ‘speculative,’” Breyer added.
Via Impunity Watch.