Lawsuit Challenging Unconstitutional Spying Should Be Reinstated, Says ACLU

December 17, 2009

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 filed a brief late Wednesday arguing that its lawsuit challenging an unconstitutional government spying law should be reinstated. 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 collect Americans' international e-mails and telephone calls by the millions, without a warrant and without suspicion of any kind.

"Allowing this case to move forward is essential to protecting innocent Americans' e-mail and telephone communications from dragnet, suspicionless government monitoring," said Jameel Jaffer, Director of the ACLU National Security Project. "Without court oversight, individual privacy rights are left to the mercy of the political branches. The courts have not only the authority but also the obligation to ensure that individual rights are not trampled by overbroad surveillance laws."

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. U.S. District Court Judge John G. Koeltl of the Southern District of New York dismissed the case in August, ruling that the plaintiffs did not have the right to challenge the new surveillance law because they could not prove that their own communications had been monitored under it. The ACLU's brief asks the U.S. Court of Appeals for the Second Circuit to vacate Judge Koeltl's decision.

"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 that they were spied on under the FAA," said Larry Schwartztol, staff attorney with the ACLU National Security Project. "If Americans are prohibited from challenging the FAA unless they can show that their own communications have been collected under it, the law may never be subject to judicial review at all. The appellate court should overturn the lower court ruling and allow this challenge to go forward."

According to yesterday's brief, judicial review is necessary because the plaintiffs have been, and continue to be, injured by the unconstitutional spying statute. Because the plaintiffs engage in international communications that the government is likely to intercept under the new statute, they face a serious risk that the confidentiality of their sensitive and confidential communications will be compromised. As a result, the plaintiffs have been forced "to take costly and burdensome measures to protect the privacy of their communications," including making international trips to collect information that they previously would have exchanged by phone or e-mail. The risk of government interception is especially burdensome for the plaintiffs who are attorneys, according to the brief, because they are "ethically required by codes of professional conduct" to protect the confidentiality of their communications. The brief also argues that, if endorsed by the appeals court, the lower court's ruling would permanently insulate many surveillance laws from judicial review.

In November, the ACLU filed a Freedom of Information Act (FOIA) request for records related to the implementation of the new law, including reports indicating how the FAA is being interpreted and used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights. The FOIA request seeks records from the National Security Agency, the Justice Department, the Director of National Intelligence and the Inspector Generals at each of these agencies. The government has not yet released any of the records requested.

The ACLU's brief is available online at: www.aclu.org/national-security/amnesty-et-al-v-blair-brief-plaintiffs-appellants

More information about the ACLU's lawsuit challenging the FAA is at: www.aclu.org/faa

The ACLU's FOIA request is at: www.aclu.org/national-security/aclu-foia-request-information-related-implementation-fisa-amendments-act

Attorneys on the case are Jaffer, Schwartztol and Melissa Goodman 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.

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