Future Tense

Supreme Court Says Americans Can’t Challenge “Dragnet Surveillance” Law

Police officers outside the Supreme Court in January 2013

Photo by Brendan Hoffman/Getty Images

The spies at the National Security Agency must have breathed a major sigh of relief today. The Supreme Court ruled that Americans have no standing to challenge the constitutionality of the NSA’s secret eavesdropping efforts.

The significant decision comes after grappling in the lower courts that began in 2008. Back then, a group of lawyers, human rights groups, journalists, and media organizations challenged in court the legality of the Foreign Intelligence and Surveillance Act. A 2008 amendment to the law, they alleged, had authorized sweeping “dragnet surveillance” that could pull in Americans’ international communications in violation of constitutional rights, such as those enshrined by the Fourth Amendment, which protects against unreasonable searches and seizures.

The district court for the Southern District of New York rejected the claim in 2009, agreeing with the government that the plaintiffs lacked standing because they could not prove they were subject to surveillance. But then the 2nd U.S. Circuit Court of Appeals overturned the ruling in 2011, concluding that the plaintiffs had a “reasonable fear of future injury.”

Now, the Supreme Court has weighed in to settle the issue, reversing the 2nd Circuit’s judgment on a 5-4 vote and agreeing with the government that the plaintiffs have no standing to challenge the spy law. The Supreme Court said that the plaintiffs’ argument “fails” in part because it “rests on a speculative chain of possibilities that does not establish that their potential injury is certainly impending or is fairly traceable.” The ruling states that “it is highly speculative whether the government will imminently target communications to which respondents are parties,” adding that “they have no actual knowledge of the government’s [FISA] targeting practices.”

The decision will come as a major blow to Americans concerned about the NSA’s secret surveillance programs, which first came to widespread attention in 2005, with a “warrantless wiretapping” scandal involving domestic surveillance of phone calls and emails. However, the ruling  does not necessarily shield FISA from future legal challenges. It states explicitly that “the holding in this case by no means insulates [FISA] from judicial review.”

It’s also worth noting that the Supreme Court judgement is clear in that it accepts “the government’s interception of a private telephone or e-mail conversation amounts to an injury that is ‘concrete and particularized’.” The reason the plaintiffs’ case failed was that they could not prove that they were subject to surveillance—and they could not do so because the government refuses to comment on its surveillance capabilities or divulge details about whom it is targeting. Indeed, in a bizarre piece of circular reasoning, the NSA told lawmakers last year that it could not even so much as provide a rough estimate of how many Americans it has spied on because it argues that providing this information would itself “violate the privacy of U.S. persons.” This hammers home the point that the problem is not necessarily the surveillance per se, but the secrecy that surrounds the surveillance.

FISA was recently renewed for a further five years, granting the NSA broad eavesdropping authorization until 2017. Aside from concerns about the law’s domestic surveillance implications, it has recently attracted attention in Europe, with a report for the European Parliament calling it “a carte blanche for anything that furthers U.S. foreign policy interests” that had legalized “heavy-calibre mass surveillance fire-power aimed at the cloud.”