It really was just a few months ago that the Supreme Court rejected
a lawsuit filed by the ACLU, seeking to find the FISA Amendments Act unconstitutional. This is part of the law that is so key to the NSA's surveillance strategy, part of which was revealed over the past few days. The key problem for the Supreme Court was that the plaintiffs didn't have standing, because it was "too speculative" to suggest that the government had monitored their communications. Specifically, the court said that the injury must be "certainly impending." From the ruling:
Yet respondents have no actual knowledge of the
Government’s §1881a targeting practices. Instead, respondents merely speculate and make assumptions about
whether their communications with their foreign contacts
will be acquired under §1881a. .... “The party invoking federal jurisdiction bears the burden of establishing” standing—and,
at the summary judgment stage, such a party “can no
longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by
affidavit or other evidence ‘specific facts.’”.... Respondents, however, have
set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted. Moreover, because §1881a at most authorizes—but does not
mandate or direct—the surveillance that respondents fear,
respondents’ allegations are necessarily conjectural. .... Simply put, respondents can
only speculate as to how the Attorney General and the
Director of National Intelligence will exercise their discretion in determining which communications to target.
The court also points out that since the FISA Court could block such an attempt, the plaintiffs would also need to show that the FISC authorized the surveillance.
...even if respondents could show that the Government will seek the Foreign Intelligence Surveillance
Court’s authorization to acquire the communications of
respondents’ foreign contacts under §1881a, respondents
can only speculate as to whether that court will authorize
Right. So, given the now leaked documents showing that the FISA Court ordered the data on all phone calls
from Verizon, and the further admission from multiple Senators
that this program has been happening continuously since at least 2007, perhaps someone should be filing a lawsuit (if they haven't already), and using the latest leaks as proof of standing...