How the FISA Amendments Act Allows for Warrantless Wiretapping, As Described By Supreme Court Justices

Trevor Timm
EFF

On Monday, the Supreme Court heard oral arguments in Clapper v. Amnesty, an important case that will decide if the ACLU’s challenge to the FISA Amendments Act—the law passed in the wake of the NSA warrantless wiretapping scandal—can go forward. The Court will essentially determine whether any court, short of a government admission, can rule on whether the NSA’s targeted warrantless surveillance of Americans’ international communications violates the Constitution.1

In Clapper, the plaintiffs — journalists, human rights workers, and lawyers — filed the lawsuit because the statute prevents them from doing their job without taking substantial measures when communicating to overseas witnesses, sources and clients. EFF has previously explained how the FISA Amendments Act gives the government an unconstitutional license to read any emails or other electronic communications coming into and out of the United States. So let’s hear the Supreme Court Justices, in their own words, explain how invasive the law really is.

Here is how Justice Ginsburg, with an assist from ACLU deputy director Jameel Jaffer, explained how the FISA Amendments Act (FAA) gutted the traditional warrant requirements in FISA, along with the Fourth Amendment:

JUSTICE GINSBURG: Mr. Jaffer, could you be clear on the expanded authority under the FAA? As I understood it, it’s not like in [FISA], where a target was identified and…the court decided whether there was probable cause. Under this new statute, the Government doesn’t say who is the particular person or the particular location. So, there isn’t that check. There isn’t that check. 

MR. JAFFER: That’s absolutely right, Justice Ginsburg…The whole point of the statute was to remove those tests, to remove the probable cause requirement, and to remove the facilities requirement, the requirement that the Government identify to the court the facilities to be monitored. So those are gone. 

That’s why we use the phrase ‘dragnet surveillance.’ I know the Government doesn’t accept that label, but it concedes that the statute allows what it calls categorical surveillance, which…is essentially the surveillance that the plaintiffs here are concerned about.

As Justice Kagan stated succinctly, “this statute greatly expands the government’s surveillance power. Nobody denies that.”

Justice Breyer confirmed the scope of the program goes far beyond wiretapping alleged terrorists or foreign agents, and affects any conversation touching on “foreign intelligence” information: “the definition of foreign intelligence information…defines it to include information with respect to a foreign power or foreign territory that relates to the conduct of foreign affairs. It’s very general.”

Justice Breyer added that even this broad reach didn’t limit the Attorney General under the statute: And then, the Attorney General can, if he decides there are exigent circumstances, wiretap for a year, anyway, without going to any court, something that isn’t true of the ordinary wiretapping.

Justice Kennedy explained the extreme difficulties the FAA causes for lawyers, who have a duty to protect client confidentiality: “I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute,” which he said gave the government an “extraordinarily wide-reaching power.”

The case at hand, however, isn’t yet even about whether the surveillance is legal; it’s just about whether the ACLU’s clients have the right to challenge the statute. The government says the case should be dismissed before being heard because the plaintiffs don’t have ‘standing.’

They argue that since the plaintiffs can’t prove with a certainty that surveillance is occurring—something the government says nobody can prove without the government actually admitting it—they cannot sue.

A mere ten seconds into the government’s argument, however, Justice Sotomayor interrupted the Solicitor General Donald Verrelli, asking “General, is there anybody who has standing?” (emphasis added). Justice Sotomayor was referring to the fact that the government has kept secret all the evidence that would prove or disprove the plaintiffs’ claims, while simultaneously arguing the suit must be dismissed for lack of evidence. In addition, since the government has gone out of its way to make sure warrantless wiretapping evidence isn’t used by a prosecutor (only for investigations), no defendant can challenge it either.

Of course, these are only a few of the justices and it’s always dangerous to predict the outcome of Supreme Court cases based on oral arguments. We were pleased that these justices seem to see what damage the FAA did to the checks and balances of FISA and we’re hopeful that a majority will see past the government’s Catch-22 standing arguments and allow the statute’s constitutionality to be decided.

No matter the outcome of Clapper, however, EFF also has an active lawsuit challenging the NSA warrantless wiretapping program, and importantly, the Ninth Circuit has already ruled that our clients have standing, noting:

Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications, a claim we accept as true.

That case is back in court on December 14th. EFF, along with the ACLU, is determined to stand up for every American’s privacy rights and end this unconstitutional domestic spying program once and for all.

• 1. Clapper v. Amnesty has been described as about a “dragnet” but we think it’s best described as about targeted warrantless surveillance — involving lawyers, journalists and others who talk to those who are targeted — as opposed to the untargeted surveillance of ordinary Americans that EFF is suing about in our case, Jewel v. NSA.