Privacy rights teeter on the scales of justice

Lending another layer to the shroud over state surveillance, the Supreme Court recently refused to hear a critical case concerning Americans' privacy rights.  Another crucial case, however, will appear before the Court for oral argument next week.

The Electronic Frontier Foundation (EFF) initiated suit against AT&T in 2006, challenging its alleged participation in the National Security Agency's (NSA) system of programmatic domestic spying.  Mark Klein, plaintiff and former AT&T technician, furnished evidence that AT&T routed personal customer information, such as phone and web history, to a NSA data room in San Francisco.

scales of justice.Despite the telecommunication industry's corporate complicity in casting the government dragnet, the FISA Amendment Act of 2008 (FAA) essentially insulated the program by retroactively granting the industry legal immunity.  EFF subsequently challenged the FAA as violating separation of powers in Hepting v. AT&T, but the Court refused to hear this case.

Just as the Court's rejection of Hepting may inhibit defenses against warrantless wiretapping,  Jewel v. NSA will also influence the state of privacy rights in post-9/11 America.  EFF helms Jewel on behalf of AT&T customers seeking relief from government surveillance authorized under the FAA.  The formal complaint asserts that the FAA unconstitutionally imposes chilling effects on free speech and violates the Fourth Amendment.  Ultimately, Jewel signifies the rights of ordinary people to remain free from secret surveillance by their government.  In conjunction with the denial of Hepting, a disfavorable determination in Jewel could decimate Americans'  access to legal redress for illegal surveillance.

Though the Supreme Court declined to hear Hepting, the Justices have another opportunity just next week to balance Americans' privacy and national security.

In May, the US Court of Appeals for the Second Circuit granted certiorari to Clapper v. Amnesty International, a class action suit challenging the constitutionality of Section 101(a)(2) of the FAA.  The Supreme Court will hear oral argument on October 29

The provision at issue in Clapper governs the interception of communications by non-US persons located outside the United States.  Journalists in the plaintiff class argue that the FAA illegally allows the unreasonable interception of overseas communications  made in the course of professional duties.  Though the Clapper court will address only whether the plaintiffs have Article III standing to seek prospective relief from government surveillance, the merits of the case pose a more profound inquiry:  whether the national security network may undermine peoples' paramount protections to perpetuate a misguided 'counterterrorism' program.

Restrictions written into Section 101(a)(2) do scarcely more than suggest insidious methods of data collection.  50 U.S.C. § 1881a(b) stipulates that the NSA may not "intentionally" target  or intercept communications from individuals within the United States.  However, there is no proscription of incidental surveillance that 'somehow' becomes subject to review or distribution.  Without mechanisms to honor the reasonable expectation of privacy, the dubious restrictions of Section 101(a)(2) may jeopardize millions of Americans' personal information.  Furthermore, national security and intelligence agents may need only demonstrate lack of intent to evade liability for constitutional violations.

50 U.S.C. § 1881a(b) also requires that interceptions observe the Fourth Amendment, but this pacifier provision fails practically to provide protection against illegal searches.  The Foreign Intelligence Surveillance Court (FISC), which operates in high secrecy, has held that:

a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.

This analysis exempts the NSA from observing the single effective restriction on domestic interceptions.  As standards for "foreign intelligence" and "national security" information remain vague and broadly interpreted, these categories fail to adequately limit the NSA's access to protected information.  The FISC exception to the Fourth Amendment also allows 'interested agencies' to receive Americans' communications as collateral damage by nominally targeting foreign powers or their agents.  Even more daunting is the apparent authority of a court as obscure as the FISC to suspend constitutional protections for Americans who pose no national security threat.  While the administration of national security law continues in dystopian fashion, the judiciary's decision in Clapper will significantly impact Americans' capacity to challenge government surveillance.

The Supreme Court's denial of Hepting may not wholly undermine legal challenges to warrantless wiretapping, it does trivialize the quiet erosion of Americans' privacy.  The pending outcomes of Jewel and Clapper, though resolving different legal issues, should help illustrate modern judicial attitudes towards domestic surveillance.

Of course, courts exist to defend the Constitution, particularly against assaults from the other branches of government.  Whether our judges will honor this principlel or instead sacrifice Americans' privacy, remains to be seen.

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