On March 10, ACLU on behalf of eight organisations including Wikimedia Foundation, Amnesty International USA and Human Rights Watch filed a complaint challenging NSA’s mass interception and surveillance program. The complainants allege that the mass upstream surveillance programs being run by the government exceeds the scope of authority granted by Congress in the FAA and violates the First and Fourth Amendments. In this post, I will look at the specific issues of constitutional standing which shall be the first hurdle that the comaplainants will have to cross.
Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 by the Congress to put in place a due process and impose a check on the widespread warrantless surveillance by the Executive. FISA mandated that an order from the Foreign Intelligence Surveillance Court (FISC) be obtained before conducting any form of electronic surveillance in the US. In order to obtain the order, the details of the subject, the form of communication to be monitored had to be supplied by the government along in addition to establishing that the ‘significant purpose’ of the surveillance was to seek foreign intelligence information targeted at a foreign power or an agent of the foreign power.
In July 2008, President Bush signed the FISA Amendment Act which effectively got rid of a number of controls and checks in original structure of FISA. Among the wide array of powers granted to the Executive, the Attorney General and Director of National Intelligence could direct surveillance up to a period of one year of persons reasonably believed to be outside the US. The role of FISC was limited to a review of the guidelines adopted by the Attorney General, in consultation with the Director of the National Intelligence for procedures to govern who may be targeted and how the communication intercepted was to be handled. FISA prohibits the government from targeting US person, however it allows the government to acquire communications of the US person with foreigners whom the government chooses to target. The government may target any person for surveillance who, as per its reasonable belief, is a foreigner outside the United States who is likely to communicate foreign intelligence information.
Given this broad framework of laws, this is how the complaint alleges the FAA has been implemented. In paragraph 37 the complaint states:
The Director of National Intelligence has reported that, in 2013, the government relied on the FAA to target 89,138 individuals, groups, or organizations for surveillance under a single court order. According to the FISC, the government gathered 250 million internet communications under the FAA in 2011 alone—at a time when the NSA had far fewer targets than it has today. Intelligence officials have declined to determine, or even estimate, how many of the communications intercepted under the FAA are to, from, or about U.S. citizens or residents. However, opinions issued by the FISC, reports by the President’s Review Group on Intelligence and Communications Technologies and the Privacy and Civil Liberties Oversight Board, and media accounts indicate that FAA surveillance results in the wide-ranging and persistent interception of U.S. persons’ communications.
The complaint then moves to the particularly scary part of the surveillance carried on by the government, ‘upstream surveillance’ under a program called PRISM. This involves acquiring stored and real-time communications from companies like Google, Facebook and Microsoft of US residents. Second and more importantly, the government carries out upstream surveillance by connecting surveillance devices to multiple major internet cables, switches, and routers inside the United States. The complaint further claims,
Upstream surveillance is not limited to communications sent or received by the NSA’s targets. Rather, it involves the surveillance of essentially everyone’s communications. The NSA systematically examines the full content of substantially all international text-based communications (and many domestic ones) for references to its search terms. In other words, the NSA copies and reviews the communications of millions of innocent people to determine whether they are discussing or reading anything containing the NSA’s search terms. The NSA’s practice of reviewing the content of communications for selectors is sometimes called “about” surveillance. This is because its purpose is to identify not just communications that are to or from the NSA’s targets but also those that are merely “about” its targets. Although it could do so, the government makes no meaningful effort to avoid the interception of communications that are merely “about” its targets; nor does it later purge those communications.
The preliminary challenge that the complainants shall face in this lawsuit is to satisfy the test of ‘standing’. In 2013, the Supreme Court had, in a 5-4 vote, dismissed a similar challenge to the FAA in Clapper v. Amnesty, as the parties failed establish standing. Broadly, the court held that plaintiffs failed to show a sufficient likelihood that their communications were being monitored. The significant difference in circumstances that the complainants are relying upon is that in light of the Snowden disclosures, the facts being alleged are no longer in question. Also, the complainants now strategically involve organisations whose communication is so large that it would be arguably impossible to conduct sweeping surveillance without involving their communications.
The requirement of standing is drawn from Section 2 of Article III of the Constitution of United States. While the provision does not speak directly of ‘standing’ the courts have relied on the limitation of judicial power to ‘cases’ and ‘controversies’ to mandate a standing requirement that the plaintiff has a genuine stake in the case. The case-law on this issue which goes back over a hundred years is effectively summed up by the Supreme Court in Lujan v. Defenders of the Wildlife. Constitutional standing requires the plaintiff to satisfy a three part test. It needs to be shown by the plaintiff that (1) she has suffered an injury, which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there is a causal connection between the injury and the conduct complained of, and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
In Clapper v. Amnesty, the majority opinion holds that the respondents failed to prove that the alleged potential future injury of Government surveillance of their communications was certainly impending or fairly traceable to the FISA provision. Justice Alito, in the majority opinion, takes guidance from Lujan to state that the imminence doctrine forbids plaintiffs from asserting merely hypothetical injuries. Notably, Lujan does not define what constitutes a sufficient probability of risk and how quickly such an injury must result for it to constitute a sufficient injury standing purposes. The respondents argued that they meet the test of imminence as “there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under § 1881a at some point in the future.” This contention was rejected by the majority as the objectively reasonable likelihood test is at odds with the requirement that the threatened injury must be certainly impeding. The opinion talk at some length of why the respondents claims are too speculative breaking the allegation down to five parts –
(1) the Government will decide to target the communications of non-U.S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under § 1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government’s proposed surveillance procedures satisfy § 1881a’s many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents’ contacts; and (5) respondents will be parties to the particular communications that the Government intercepts.
Together, the opinion concludes that the claims do not satisfy the test of imminence.
On the other hand, speaking for the minority, Justice Breyer stated the respondents allegations are “likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.” Looking at the general nature of communication between the respondents and their foreign clients, he held that there is a very high likelihood that Government will intercept at least some of the communication. The main point of disagreement between the two opinions is with regard to the standard of ‘certainly impeding’ adopted by the majority, while the minority takes a more pragmatic view by lowering the standard to reasonably likely or highly likely. The disagreement seems to play around the semantic interpretation of the work ‘certainly’. Justice Breyer argues that courts use the work ‘certainly’ so as to emphasize rather than literally define what is impeding.
Standing in the present case
As mentioned above, the major difference between the present case and Clapper is that much of the alleged injuries have become less and less speculative and more definitive in the time elapsed since Clapper was argued. In a Reddit AMA on this lawsuit, Jameel Jaffer of ACLU mentioned three factors that differentiate the current case from Clapper on the issue of standing. First, with the Snowden disclosure in retrospect, much of the speculation about surveillance practices have become certainties. Second, since the leaks by Edwards Snowden to the Washington Post and the Guardian, various actors of the US Government including President Barrack Obama and Dircetor of National Intelligence Clapper have confirmed the surveillance practices in some measure or other. The third point that Jaffer makes is regarding the strategic decision to have Wikimedia Foundation as a complainant. The contention is that given the volume of Wikimedia Foundation’s communications, there is no way that the government carry out upstream surveillance in the manner alleged without a bulk of the communication being surveyed involving Wikimedia Foundation. How well the complainants are able to establish and leverage the last point will be decisive, in my view, about whether this case passes the constitutional test of standing.