by Mike Masnick

Filed Under:
4th amendment, appeal, warrantless wiretapping


Appeals Court Says It's Possible To Challenge Warrantless Wiretap Law Without Proving It Was Used On You

from the huge-news dept

Here's some big news. You may recall a few years ago that the courts more or less said that the ACLU had no standing to file a lawsuit over the government's warrantless wiretapping program, because they weren't the people being spied on. Of course, that left people in quite the catch-22 situation. The wiretapping was entirely secret, and no one could sue unless it was known that they were being wiretapped. So how could you possibly question the legality of the program? The only case that was able to move forward was the one where the government accidentally revealed it was wiretapping, but otherwise the wiretapping program has continued. In fact, to deal with this, Congress even passed a law that explicitly stated that warrantless wiretapping was okay (and also granting telcos retroactive immunity for helping out prior to the law being passed).

Of course, with the passage of the new law, the FISA Amendments Act, there was a new issue to sue over, and the ACLU and some others brought a new suit, challenging the specific law. The lower court, again, said that the ACLU had no standing, but the 2nd Circuit appeals court has now reversed that ruling and sent it back to the lower court, saying that the ACLU and the others have made a strong case that they should be able to challenge the constitutionality of the law:
plaintiffs have good reason to believe that their communications in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct. The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor – i.e., individuals “the U.S. government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,” and “people located in geographical areas that are a special focus of the U.S. government’s counterterrorism or diplomatic efforts.” The plaintiffs’ assessment that these individuals are likely targets of [FISA Amendments Act] surveillance is reasonable, and the government has not disputed that assertion.
As the report linked above notes, it's expected that the US government will do its usual "state secrets!" claim to try to get away from having to actually defend how this law meets the requirements of the 4th Amendment. Hopefully the courts will actually stand up to the government for once on such a claim.

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  • identicon
    Infowars, 21 Mar 2011 @ 5:01pm


    "Hopefully the courts will actually stand up to the government for once on such a claim"

    Don't hold your breath.

    We are Pwned to no end already..

    reply to this | link to this | view in chronology ]

    • identicon
      Kevin, 21 Mar 2011 @ 7:02pm

      Re: Haha

      I agree with you that this administration will never come clean about this. I believe, as sad as it is, that we are several years away from a leadership that is more in-tune with how the world has started to operate, and can craft rules that actually make sense.

      reply to this | link to this | view in chronology ]

  • icon
    velox (profile), 21 Mar 2011 @ 7:04pm

    Federal attitude: 4th amendment is annoying

    Unfortunately the 4th Amendment is that portion of the Constitution for which all three branches of government have long shown the least respect. A current paper by Orin Kerr, which will be published in an upcoming issue of the Harvard Law Review calls 4th Amendment Law "a theoretical embarrassment".

    reply to this | link to this | view in chronology ]

  • icon
    Josh Bova (profile), 21 Mar 2011 @ 8:02pm

    Can't say he didn't warn us...

    There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any given wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live-did live, from habit that became instinct-in the assumption that every sound you made was overheard, and, except in the darkness, every movement scrutinised. -George Orwell 1984

    reply to this | link to this | view in chronology ]

  • identicon
    Roland, 21 Mar 2011 @ 8:03pm

    ex post facto

    The US Constitution, Article I, Section 9.3, bans 'ex post facto' laws. This means congress can't make something illegal (or legal, if previously illegal) after the fact. So telecom immunity is toast, if the judge is worth a damn. Does that law 'granting telcos retroactive immunity' have a severability clause? There wasn't one in the 2000+ page health 'insurance' bill. Without a severability clause, the judge would (in a just world) toss the whole thing, leaving the telcos wide open for a huge class action. If not by 2030, maybe by 2040. IANAL, ymmv, etc.

    reply to this | link to this | view in chronology ]

  • icon
    JustMe (profile), 22 Mar 2011 @ 4:42am

    Re: Kevin

    You said: "this administration will never come clean about this." and "we are several years away from a leadership"

    Why did you phrase it like that? The previous administration put these rules in place and defended them for five or six years. Certainly the rules are being continued by the current administration. A partisan attack which ignores facts from the previous administration only serves to divide, and therefore weaken, the People. All administrations are equally bad at this and these abuses will continue until we stand together and demand transparency.

    I apologize if I misunderstood your argument, but it really left a bad taste in my mouth.

    reply to this | link to this | view in chronology ]

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