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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