NSA Wiretapping News

NSA Wiretapping News

The Sixth Circuit recently handed down a doozy in the current raft of lawsuits surrounding the NSA warrantless surveillance program. In ACLU v. NSA, the ACLU didn't have standing to sue in the first place, so their victory at the district court level is overturned.

Standing derives from the Constitutional requirement of a “case or controversy.” The basic idea is that courts should stay out of things unless there is a real dispute presented by real opponents who will best present each side, so the court can reach the best resolution. This shakes out into three requirements: injury (the plaintiff must have suffered or be faced with imminently suffering some concrete harm); causation (the injury must be fairly traceable to the challenged action, and not the result of something else); and redressability (victory on the merits must be capable of redressing the injury).

ACLU's problem was that they couldn't prove any actual injury, because they couldn't show that they had actually been wiretapped themselves. They tried to get around this limitation by alleging that the likelihood that they had been surveilled was affecting their ability to communicate with clients, but the court held that this was too attenuated and their own subjective reactions didn't count as injury-in-fact caused by the defendants.

ACLU v. NSA shows the practical side of standing: it keeps litigants who would win on the merits from being able to reach them. Well, probably win – given that, as noted in the opinion, the "conduct giving rise to the alleged injuries is undisputed: the NSA (1) eavesdrops, (2) without warrants, (3) on international telephone and email communications in which at least one of the parties is reasonably suspected of al Qaeda ties," it's hard to doubt the merits of their case. Since no-one, however, can allege that they personally have been wiretapped, and people can't sue to assert the rights of other people, by this logic no-one will have standing to challenge the program. The moral of the story looks to be that if the government says what it's doing is a state secret, it can do whatever it wants.

Phone photo used in thumbnail courtesy Catherine Trigg.

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erin

There are a number of reasons not to blindly trust anyone, especially the government, to... well, to put it bluntly, to break the law.

Yep, that's what they're doing. There are a number of laws in this country that prescribe exactly what and how the government can surveil, and the important thing about all of them is there is some sort of oversight. A FISA judge, a district court judge, whoever. It's crucial that the people who want to spy on you have to bring evidence before a neutral third-party that there's a good reason to invade your privacy. If the laws don't work, go to Congress and change the laws. But you can't break them just because they're inconvenient.

Privacy is a good and necessary thing. Freedom from constant surveillance allows people to lead civic lives, to voice unpopular thoughts, and engage in all those other constitutionally protected activities. The NSA doesn't need to listen to my conversations with my friends in order to prevent terrorist strikes - and that's not its goal when it does. This administration doesn't like dissent, and it doesn't like the checks and balances put into our system of government to curtail its power. That should scare you.

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leonardood

This is actually a first step in taking rights away from you .They then can justify anything by calling it ( State Secret ). This has happened in the past . How do you think Hitler gained so much power .

"Those who sacrifice freedom for security lose both. " Thats paraphrased from Ben Franklin .

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Bin3ry

I support the NSA on this. I mean its not like thier gonna still Grandma's Secret Recipe or something. If it helps our goverment and our country to be more safe from terrorist, then let them listen in on my phones calls about just pwning someone with an AWP in Counter-Strike: Source. I mean what is the harm.

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MantaBase

Well,

I doubt the NSA wiretaps the ACLU to keep us safe from terrorists. Maybe I'm wrong.

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MantaBase

This is Great News! Now the NSA can't sue me for tapping their phones!

Wait - I didn't say that out laud did I?

Manta

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