ACLU Asks Court To Reinstate Challenge To Spying Law

October 1, 2009

Group Appeals Dismissal Of Lawsuit, Saying Unconstitutional FISA Amendments Act Must Be Subject To Judicial Review

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – The American Civil Liberties Union today appealed the dismissal of its lawsuit challenging an unconstitutional government spying law. The ACLU and the New York Civil Liberties Union filed the landmark lawsuit in July 2008 to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to sweep up Americans' international e-mails and telephone calls.

U.S. District Court Judge John G. Koeltl of the Southern District of New York dismissed the case in August on "standing" grounds, ruling that the plaintiffs did not have the right to challenge the new surveillance law because they could not prove with certainty that their own communications had been monitored under it. Judge Koeltl rejected the plaintiffs' argument that they should be allowed to challenge the law because it had forced them to take costly and burdensome measures to protect the confidentiality of their communications, and because there was a high likelihood that their communications would be monitored under the law in the future. The appeal filed by the ACLU today asks the U.S. Court of Appeals for the Second Circuit to reverse Judge Koeltl's decision.

"The appellate court should overturn the ruling that allows the government to continue its unchecked monitoring of innocent Americans' e-mail and telephone communications," said Jameel Jaffer, Director of the ACLU National Security Project. "To say that plaintiffs can't challenge this statute unless they can show that their own communications have been collected under it is to say that this statute may not be subject to judicial review at all. The vast majority of people whose communications are intercepted under this statute will never know about it – in fact, it's possible that no one will ever be able to prove what the court says is required."

The ACLU filed the lawsuit on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States.

"The lower court's decision would leave individual privacy rights to the mercy of the political branches," said Melissa Goodman, staff attorney in the ACLU National Security Project. "The appellate court should make clear that the courts have both the authority and the obligation to ensure that individual rights are not needlessly infringed by dangerously overbroad surveillance statutes."

Attorneys on the case are Jaffer, Goodman and Larry Schwartztol of the ACLU National Security Project; Christopher Dunn and Arthur Eisenberg of the NYCLU; and Charles S. Sims, Theodore K. Cheng and Matthew J. Morris of Proskauer Rose LLP.

Today's appeal is online at: www.aclu.org/safefree/nsaspying/41222lgl20091001.html

More information about the lawsuit is available online at: www.aclu.org/faa

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