Supreme Court Effectively Says There's No Way To Challenge Warrantless Wiretapping

from the but-of-course dept

This probably won’t come as a surprise to anyone, but the Supreme Court has completely shot down the ACLU (and some activists and journalists’) attempt to invalidate the part of the FISA Amendments Act that “legalized” warrantless wiretapping. As we guessed at the time of the oral hearings, it seemed like it was going to be difficult to convince a majority of the court that the plaintiffs had any standing to complain, since they couldn’t show that they had been directly impacted. And, indeed the court ruled 5 to 4 that there was no standing here. So, basically, there is simply no way to challenge the constitutionality of warrantless wiretaps.

Doesn’t that seem like a serious constitutional problem? The government can pass laws that it can spy on people in private, and there’s no way to then challenge that law. Oh, and if you happen to discover (by accident!) that you’ve been spied upon the government can just claim sovereign immunity, and that’s it. Case closed.

The full ruling is pretty depressing. The court basically says any harm is “speculative,” and thus there can’t be any standing at all.

We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors.

That’s from the majority ruling, written by Justice Alito, and signed by Justices Roberts, Thomas, Scalia and Kennedy. Dissenting were Justices Breyer, Ginsburg, Sotomayor and Kagan. The majority also rejected the idea that merely having to take precautions not to be spied upon without warrants represents a real harm that gives standing:

If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.

Perhaps a legitimate concern, but it still seems somewhat ridiculous that there is no actual way to test the constitutionality of a law that clearly has 4th Amendment consequences.

The dissent pointed out that it’s crazy to suggest that the fact that this will be used on the plaintiffs was “speculative,” and clearly worried about the implications of such a ruling and what it means for the government’s ability to pass these kinds of laws without real judicial review.

The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs’ communications, including some that the 2008 amendment, §1881a, but not the pre-2008 Act, authorizes the Government to intercept. At the same time, nothing suggests the presence of some special factor here that might support a contrary conclusion. The Government does not deny that it has both the motive and the capacity to listen to communications of the kind described by plaintiffs. Nor does it describe any system for avoiding the interception of an electronic communication that happens to include a party who is an American lawyer, journalist, or human rights worker. One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circumstance here.

Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as “speculative.”

They go on to point to a series of other cases where standing was granted based on “probable” injury. It also notes a bunch of scenarios that seem ridiculous, but which are logically implied by this ruling. And, indeed, the standard the Supreme Court ruling makes here is a very high bar that is going to deny standing in many cases, and often allow the government to act with impunity in cases where oversight is needed. This is very unfortunate. And, of course, it’s unlikely that Congress will do its job and step in to fix this.

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Companies: aclu, amnesty international

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Comments on “Supreme Court Effectively Says There's No Way To Challenge Warrantless Wiretapping”

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Give Me Liberty... says:

Re: Re:

Since these “justices” have reneged on their oath to

“support and defend the Constitution of the United States against all enemies, foreign and domestic”,

we apparently don’t need no steenkin’ Supreme Court anymore.

So, they might as well just pack up their shit and go home, rather then continue the charade.

RonKaminsky (profile) says:

"Cryptoparty" --- it's the new "Constitution"!

Looks like those hundreds-year old pieces of paper are going to need replacement by new technology: cryptography, steganography, 3-D printing.

Funny how the advancement of technology both enables the government to infringe on the rights of the citizens on a previously unknown enormous scale, and also (could) enable the citizens themselves to take back the initiative.

Some Other AC (profile) says:

Re: Re:

Enough with this inane crap trying to polarize this to one particular party/politician.
IIRC, GWBush instituted this particular version of privacy invasion. Obama has upheld/renewed it, but he did not start it. Many of the current BS in regards to invasion of privacy and erosion of rights began very soon after 9/11, this means the “laws” were created/implemented by GW and what ever jackasses were in Congress at that time.
Please understand, Obama is not blameless, he could have pushed to reduce or overturn these ridiculous “laws”.
However, he did not and neither have enough of the Republican or Democratic politicians. The entire government is corrupted by the power and prestige of their offices. Even those who on occasion, vote for worthwhile issues and cause(however they impact you or yours).

Anonymous Coward says:

“We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors.”

So if this is now legal precedent set by the Supreme Court, how long I wonder before someone accused under the ‘Guilty Until Proven Innocent’ three strikes law tries this as a defense. Courts around the country after all have been chiming in to the tune of ‘An IP address is not a person’. The premise behind the three strikes system itself seems to be ‘THis person committed infringement! Probably… maybe…. we think…’. Certainly seems like speculation to me.

art guerrilla (profile) says:

Re: Re:

gee, that ain’t how it went down in bush v gore, it were ALL about possible future actions of unknowable actors…

of course, they told us peons upfront that it was a -you know- um, unique situation, nebber ebber to be used as precedent… (if that wasn’t enough funny-bidness from the get-go to tell you what was going on, nothing was going to inform you…)

i was raised to respect a nation of laws, not a nation of men… (exactly when was it our moral/legal poles flipped ? ? ?)

art guerrilla
aka ann archy

Jesse (profile) says:

Interesting, because it’s the governments baseless speculation that is leading to the wiretaps (otherwise they could get a warrant). So the government can break the law based on speculation, but we can’t speculate that the government breaking civil liberties could be bad.

Also, it seems to be that a lot of people (Aaron Swartz?) Face jail time for speculative harms, no? The government has no problem speculating all kinds of made up evils when it suits it’s interests.

So much for separation of the powers.

Mr. Applegate says:

Well we have weapons...

All citizens need to encrypt all forms of communication. Better dust off your GPG keyring (or set one up), setup Redphone, and use TOR. In fact better encrypt your hard drives and all other data as well.

Guess Osama bin Laden was right when he said “I am confident that Muslims will be able to end the legend of the so-called superpower that is America.”

Since 9/11 the U.S. has been on a path of self destruction. Scared of everything and willing to give up liberty in the name of security.

In the words of one of our founding fathers “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” — Benjamin Franklin

Anonymous Coward says:

Re: Re: Well we have weapons...

The problem with relying on technology like that is it means you’re reliant on the people that developed it and the government is certainly pressuring anyone it can to give them backdoor access to everything. That’s why their ‘cybersecurity’ legislation doesn’t revolve around making known vulnerabilities public and keeping everyone up-to-date on critical patches. It’s in their best interests not to have those things fixed but to talk about them behind closed doors.

Mr. Applegate says:

Re: Re: Re: Well we have weapons...

“The problem with relying on technology like that is it means you’re reliant on the people that developed it and the government is certainly pressuring anyone it can to give them backdoor access to everything. “

This is true, but what I am saying is that the law should specifically dis-allow back doors because there is an expectation of privacy in cases where logins and encryption are used and certainly in cases where I can determine who can see what I post or do.

You of course still have an issue where you may post something and allow me to see it. If I break your trust and post it on the net, what then. Well again, just like now, if I rat you out to the cops…

Anonymous Coward says:

Re: Re: Re: Well we have weapons...

That really only happens though when the technology comes from large companies that are already in the pockets of the politicians. Necessity is the mother of invention. SOMEONE will likely develop this technology and release it strictly to deal with the problem of privacy. Giving the government a backdoor access to it would completely defeat the purpose of the technology itself. So it is likely to appear from another source. The government is merely creating the situation that will drive the innovation to stop this nonsense.

Anonymous Coward says:

more than anything else, i think this shows that what was fought against in world wars ie, continuous govt surveillance and the collection/passing on of information by fanatics, was simply a gross waste of human life and just delayed the inevitable, that all governments are going to spy on all activities of all people, all the time.
‘nothing to fear but fear itself’ seems rather relevant today

Mr. Applegate says:

Re: Re: Re:

Sorry, I don’t think it is “just meaningless political rhetoric…”

‘conservative’ = Government should not get in the way of companies that want to screw over the little guy. Little guy, you are on your own, figure it out or get out of the way.

‘liberal’ = Government should manage the large companies and the little people because only liberal politicians are smart enough to control the large companies and know what to provide for the little people, because little people aren’t capable of making their own decisions or providing for themselves.

Very different philosophies but both will screw the average american over at every turn. So in that regard I guess you are right, either way the average american get F#%^&*! over!

Anonymous Coward says:

Two points…

I love how a lot of the commentary ignorantly revolves around party and partisanship. There is no partisanship going on here, regardless of the way the media portrays it.

This ruling is almost entirely based on standing. You have to prove standing to sue. If you can’t show positive proof of your standing then you cannot move forward with the suit. The problem here is this is obviously a catch-22 since you can’t show standing in the face of a secret operation. The question that comes to my mind is how to adjust the rules regarding standing and what would be the systemic impact of doing so?

Anonymous Coward says:

Re: Re:

As I said earlier in my double standard comment. The government has standing to bring criminal charges against an individual based on speculative reasoning. However, the public cannot bring charges that the government is breaking the law without “standing”. Our standing is that we as citizens have the duty to hold our leaders accountable for their actions when they break the law. Probable cause is good enough for them so it should stand that it is good enough for the public.

Anomalous-Coward says:

We’ll be fighting in the streets
With our children at our feet
And the morals when they worship will be gone
And the men who spurred us on
Sit in judgement of all wrong
They decide and the shotgun sings the song

I’ll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I’ll get on my knees and pray
We don’t get fooled again

special-interesting (profile) says:

Re: Re:

Thats brilliantly stated and makes my point that we use popular songs to express ideas and concepts in ways we cannot do ourselves. A song or quotes from a book embellish our sentiment if well chosen resonates socially.

An excellent example of copyrighted culture being denied for public use. Its likely this is covered under fair use. If one were to ask a recording firm for permission am sure the answer is no. Thus, a way of expression has been denied.

Eternal copyright only serves to deny cultural items (books, music, TV shows, etc) to use in expressing ourselves or getting our ideas across. It would be nice if fair use was expanded a bit too.

It has been one of my themes that copyright should be limited to some time span of much less that the average lifespan of the audience. 30 years might be to much. It is important that we be able to use the stories our parents taught us or read in school because… thats all we know!

special-interesting (profile) says:

So, the Supreme Court makes a decision on privacy issues and a rubber-stamp of bureaucracy (sounds familiar) makes the day for now and maybe for all time but… with voter support anything is possible. Thats right legislation combined with public awareness (of the privacy issues in this case) can save the day.

Fear is what drives privacy issues. Fear of basic human nature to take advantage… of any advantage especially individual privacy. If the local bully had access to your private information like where and what you hid under your bed mattress be it cash, gold or dirty magazines they would either steal it (because they would know your habits enough to get away with it), ransom the embarrassing details of your life or more likely reveal all the silly details at the next social gathering to your friends. (such is the mindset of a bully)

Keep in mind that bullies like to occupy official offices of power if only because of the opportunities to keep bullying. The often heard phrase ?tough on criminals? is dubious when one considers what and who are criminals. Its human nature to take advantage of any situation so that is why we should force laws to be at a minimum and any law regulating a life style should not exist.

?if the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.?

Paranoia (not always a bad thing) is what provides us with some motivation for defending ourselves from overt forms of surveillance will ultimately take advantage of us. Every foreign country with overt internal surveillance complains about the fact that they do not worry so much about corporate or foreign spies as much as the government spies. Seems like the government spies sold the intel to other corporations or foreign spies for cash. (go figure) Opportunity (crimes of) fosters rampant corruption through the ‘just because we can’ type of attitude. In EVERY communist regime it became a money making enterprise to sell your corporate info to the highest bidder. (just ask the KGB, don’t expect a straight forward answer)

Appeasement of privacy rights is a risk that exceeds giving ones PIN # away with the bank account number on a public website.

?it’s unlikely that Congress will do its job and step in to fix this.? Your are right Mike about the current batch of politicians not being able to do anything about this.

Key phrase ?current batch of politicians?…

The present administration seems only to rubber-stamp the bureaucracy he leads and Bushi boy or dubya (or ?panic boy? with a penchant for overreaction IMHO is possibly the worst?) in the line of culpable presidents with lack of respect for the citizenry. With the exception of Carter, who had his own follibles, this can be traced back to Nixon’s ?War on Drugs? which started off the latest purge of ?people who would not vote for them?. Its not really a new thing related to ?just because we can?.

Prohibition of alcohol was before that and its resulting gangland war resembles our present gang problems so much its like dejavu for anyone old enough to actually remember. (which is why our being able to share cultural items such as a movie or song on Al Capone’s Chicago gangland murders would be nice.)

My post on how sharing culture is important and how it allows us as citizens to learn that war is a bad thing:

Nixon was, most likely, a certifiable paranoid lunatic (and I do mean in the clinical sense of insanity) and can easily be imagined as frothing at the mouth for any citizen who did not vote for him. Watergate was his legacy trademark of this as he even spied on his political opponents campaign offices. The citizens? Bill of Rights? Out the window. No one can tell me that criminalization of using drugs helped not ever one of the victims of such laws. Not even one! The average victim rots in some jail cell with job lost (at the expense of taxpayers) or sits in the gutter, along with their kids, after some debilitating fine was levied. A person who uses drugs needs help not hurting.

Drug usage, sharing of commercially produced media and whatever parking ticket level offenses trumped up with ridiculous jail terms and life crippling fines can be described as war on, what others would consider, indecent lifestyles. The ?lifestyle wars? can be summed up as a purge of voters they did not like.

Anyone might not like what you say, do, personal habits or how you live but making such and such opinion the basis of legal intervention sounds more like an attack on ones race or class.

Which brings me to the topic of: How to recognize a candidate that respects your life(style) (want to say privacy but its more expansive than that). If your candidate says:

?I want to be tough on crime!? forget this candidate because he will most likely be a stooge for the private prison system and encourages prison terms for non violent (parking ticket level) offenses.

?Its for the children? you can count on legislation that chains your to the bedside because it to risky to get up and the kids will be taken to a huge facility where brainwashing (that they did them a favor) will be implemented.

?copyright extension will provide profits? for who and at what expense to culture based on public domain.

Fill in the blank here with your local candidates buzz line. War on terror, Drug Dealers, Unlicensed home food caterers making cookies to take to school (for real!), etc.

It will take years to replace the current batch of politicians with sane unbiased people and many mistakes will be regretted along the way and this assumes the public at large will actually be paying attention to cultural issues over corporate and runaway government agencies dogma.

This is one of the most unpleasant essays I have written. -throws up- blech I apologize if any spew landed on anyone.

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