How the FISA Amendments Act Allows for Warrantless Wiretapping, As Described By Supreme Court JusticesTrevor Timm 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 lets 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, its not like in [FISA], where a target was identified andthe court decided whether there was probable cause. Under this new statute, the Government doesnt say who is the particular person or the particular location. So, there isnt that check. There isnt that check. MR. JAFFER: Thats absolutely right, Justice GinsburgThe 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. Thats why we use the phrase dragnet surveillance. I know the Government doesnt accept that label, but it concedes that the statute allows what it calls categorical surveillance, whichis essentially the surveillance that the plaintiffs here are concerned about. As Justice Kagan stated succinctly, this statute greatly expands the governments 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 informationdefines it to include information with respect to a foreign power or foreign territory that relates to the conduct of foreign affairs. Its very general. Justice Breyer added that even this broad reach didnt 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 isnt 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, isnt yet even about whether the surveillance is legal; its just about whether the ACLUs clients have the right to challenge the statute. The government says the case should be dismissed before being heard because the plaintiffs dont have standing. They argue that since the plaintiffs cant prove with a certainty that surveillance is occurringsomething the government says nobody can prove without the government actually admitting itthey cannot sue. A mere ten seconds into the governments 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 isnt used by a prosecutor (only for investigations), no defendant can challenge it either. Of course, these are only a few of the justices and its 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 were hopeful that a majority will see past the governments Catch-22 standing arguments and allow the statutes constitutionality to be decided. 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, Jewels 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 Americans privacy rights and end this unconstitutional domestic spying program once and for all. linkwithin_text=Related Articles: 