This week’s revelations about the extent of the National Security Agency’s surveillance activities have prompted the American Civil Liberties Union to revisit its options related to a hard-fought, high-profile legal case it lost earlier this year.
The ACLU’s lawsuit, known as Amnesty et al. v. Clapper, was an attempt to challenge a 2008 law called the FISA Amendments Act (FAA), which broadened the power of the NSA to monitor Americans’ international phone calls and emails. The ACLU brought the lawsuit on behalf of a number of attorneys, human rights, labor, legal, and media organizations whose work involved sensitive and sometimes privileged telephone and e-mail communications with people located outside the United States.
The ACLU filed the suit almost immediately after President George W. Bush signed the FISA Amendments Act in to law in July 2008. The following summer, a district court judge in New York dismissed the suit on “standing” grounds, because the ACLU’s clients could not prove that their communications would be monitored under the new law. A federal appeals court reversed that ruling in 2011, and the Obama administration appealed the issue to the Supreme Court. The Supreme Court ultimately dismissed the ACLU’s lawsuit in a 5-4 decision in February 2013, holding that the plaintiffs did not have the right to challenge the law.
The NSA’s practice of collecting the phone records of millions of Verizon customers was revealed by The Guardian on Wednesday. Then, on Thursday, The Washington Post reported that the NSA and the FBI are tapping into the central servers of nine major U.S. internet companies, including Microsoft, Yahoo, and Google.
“The recent disclosures raise serious questions about the government’s representation to the Supreme Court about the speculative nature of dragnet surveillance,” Brett Max Kaufman, a national security fellow with the ACLU’s National Security Project, told TPM. “And the ACLU is considering and researching the available options in terms of further action on the FAA. Throughout the Amnesty litigation, the ACLU consistently argued that a broad interpretation of the FAA would permit the government to conduct the very kind of surveillance that has been disclosed in the past few days, and the government was dismissive of the possibility.”
According to Kaufman, this week’s news demonstrates “how important legal issues like standing are, because they take away the ability of the American people to challenge the very kind of surveillance that we’ve learned about.”
Mark Rumold, staff attorney at the Electronic Frontier Foundation, suggested that the ACLU and its plaintiffs still had a tough fight when it came to standing.
“It was dismissed on standing grounds,” Rumold told TPM, speaking of Amnesty et al. v. Clapper. “And I think where standing lies, we’re almost in the same place still. 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 the Act … maybe their plaintiffs could be only Google users. Still the question is going to be, was your email intercepted, and can you demonstrate that it was.”
With the Verizon records, in contrast, “it’s clear that customers of Verizon had their information obtained by the NSA,” Rumold said. But whereas the PRISM program falls under the FAA, the order allowing the NSA to collect the Verizon records was issued under Section 215 of the Patriot Act, Rumold said, meaning it falls outside the FAA case.
