Activists have standing to challenge wiretapping laws

The best case in the world cannot get out of the starting gate if the plaintiffs do not have standing to sue, i.e., if they do not have a concrete interest in the outcome of the case. The question in this case is whether journalists, lawyers and activists have standing to challenge the recent national security surveillance rules. They do.

The case is Amnesty International v. Clapper, decided on March 21. Under the theory that 9/11 changed everything, Congress in 2008 made it easier for the government to wiretap people in the interests of fighting terrorism. No longer does the government have to submit an individualized application to the Foreign Intelligence Surveillance Act (FISA) Court. Under the revised law, the Attorney General and Director of National Intelligence can get a "mass surveillance authorization" to listen in on phone calls. The revised law also does away with any probable cause requirement for these warrants.

In challenging the law, plaintiffs filed affidavits that said "the individuals with whom [they] communicate include 'people the U.S. Government believes or believed to be associated with terrorist organizations,' 'political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,' and 'people located in geographic areas that a special focus of the U.S. government's counterterrorism or diplomatic efforts.'" Their legal injuries stem from their fear of future government surveillance under the 2008 amendments to the wiretapping laws, which have "compromised their ability to locate witnesses, cultivate sources, gather information, communicate confidential information to their clients,and to engage in other legitimate and constitutionally protected communications." They also have to take costly and time-consuming measures to avoid the wiretapping, including traveling long distances to meet personally with individuals.

This is enough to confer standing on these plaintiffs. They do not have a generalized grievance with the 2008 statutory amendments. The Second Circuit (Lynch, Calabresi and Sack) note that the amendments affect how they do their jobs, and the new law has chilled their reporting and legal advocacy, particularly since it is reasonably likely that the government will monitor their communications with people around the world in whom the U.S. government has an interest in the post-9/11 environment. These economic and professional injuries are not speculative, as the district court held. Plaintiffs have concrete injuries as set forth in their affidavits.

Mind you, the Second Circuit is not holding that the 2008 amendments are illegal. The Court is only saying that these plaintiffs are in a position to challenge the constitutionality of the new wiretapping laws. Whether these laws are unconstitutional is a question for another day, years from now, I'm sure, as the parties now proceed with pre-trial discovery.