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May 01, 2013

Warrantless Wiretapping Under the FISA Amendments Act

by Mitra Ebadolahi

Imagine you are a human rights researcher trying to locate and interview foreign dissidents agitating for democratic reforms in their home country, or a lawyer representing a Guantanamo detainee charged with terrorism. Your ability to fulfill your professional responsibilities and ethical obligations depends on access to confidential, international communications. Since July 2008, however, the Foreign Intelligence Surveillance Act (FISA) Amendments Act has jeopardized the confidentiality of such communications. On December 28, 2012—just days before the FISA Amendments Act was set to expire—the Senate voted to reauthorize the law for five more years. And on February 26, the Supreme Court held that American media, human rights, and legal and labor organizations lacked standing to challenge the constitutionality of the statute. This law grants the U.S. government too much surveillance authority and gives privacy too little protection.

To understand the scope and implications of the FISA Amendments Act, a little bit of history is useful. In 1975, Congress established a committee, chaired by Senator Frank Church, to investigate allegations of “substantial wrongdoing” by federal intelligence agencies. The Church Committee discovered that, over the course of four decades, these intelligence agencies had “violated specific statutory prohibitions,” “infringed the constitutional rights of American citizens,” and “intentionally disregarded” legal limitations on surveillance in the name of “national security.” Attributing these systematic constitutional violations to a failure in the system of checks and balances, the committee recommended that all surveillance of communications “to, from, or about an American without his consent” be subject to a judicial warrant procedure. Congress subsequently enacted the Foreign Intelligence Surveillance Act (FISA) of 1978, creating a secret FISA Court to grant or deny government applications for surveillance orders in foreign intelligence investigations. See 50 U.S.C. § 1803(a). FISA generally foreclosed the government from engaging in electronic surveillance without first obtaining an individualized and particularized warrant. The FISA Court could issue such a warrant only if it found, among other things, that there was “probable cause to believe that the target of the electronic surveillance [was] a foreign power or an agent of a foreign power,” id. § 1805(a)(2)(A), and that “each of the facilities or places at which the electronic surveillance [was] directed [was] being used, or [was] about to be used, by a foreign power or an agent of a foreign power,” id. § 1805(a)(2)(B).

After September 11, President Bush secretly authorized the National Security Agency (NSA) to ignore FISA and to engage in warrantless electronic surveillance inside the United States without seeking surveillance orders from the FISA Court. When the program became public, the Bush administration pressured Congress to amend FISA. The FISA Amendments Act is the result.

The FISA Amendments Act eviscerated much of the FISA regime. The statute eliminated FISA’s probable-cause and individualized-suspicion requirements; under the FISA Amendments Act, the government can obtain a FISA Court order authorizing surveillance for up to one year by certifying that the targets of its surveillance program are “reasonably believed to be located outside the United States.” 50 U.S.C. § 1881a(a). This certification is the primary substantive limitation on the government and opens up huge swaths of international communications to surveillance. Importantly, the FISA Amendments Act permits surveillance of any foreigner abroad—not just “foreign agents”—so long as a “significant purpose” of the acquisition is “to obtain foreign intelligence information.” Id. § 1881a(g)(2)(A)(iii)–(vii). “Foreign intelligence information,” in turn, is defined broadly to include information concerning foreign affairs and national defense. Id. § 1801(e).

To make matters worse, the FISA Court no longer has any meaningful oversight role. The court cannot consider individualized and particularized surveillance applications because the FISA Amendments Act does not require the government to identify its targets to the FISA Court (or any other court); it does not make individualized probable-cause determinations; and it has limited authority to monitor the government’s compliance with targeting and minimization procedures.

The FISA Amendments Act thus has dire and immediate consequences for those Americans engaged in routine international communications with clients, sources, witnesses, experts, dissidents, and advocates abroad. It opens up our international e-mails and telephone calls to warrantless surveillance, impeding the confidential communications integral to such professional activities.

Immediately after the FISA Amendments Act became law, the American Civil Liberties Union filed a lawsuit challenging the statute’s constitutionality. The plaintiffs include attorneys and human rights, labor, legal, and media organizations whose work requires sensitive and at times privileged international communications. The government argued that the plaintiffs lacked standing to sue because they could not prove to a certainty that they are being surveilled—notwithstanding the uncontested fact that they engage in the very types of international communications the FISA Amendments Act was designed to allow the government to collect. The Supreme Court heard argument on October 29, 2012.

Late last month, the Court held that plaintiffs could not satisfy Article III standing requirements. Justice Samuel Alito’s majority opinion identified a “highly attenuated chain of possibilities” insufficient to establish that plaintiffs’ alleged injuries were certainly impending or fairly traceable to the statute and emphasized that plaintiffs cannot know whether they have been subject to secret government surveillance pursuant to the FISA Amendments Act. In a powerful dissent, Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, explained the majority’s error: “we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties.” This fact caused the plaintiffs real injury: Many altered the way they communicate with foreign contacts who were likely to be swept up in the government’s dragnet surveillance. Such injuries should suffice to establish standing and permit a federal court to adjudicate the constitutionality of the FISA Amendments Act.

The FISA Amendments Act was reauthorized without a single substantive amendment, despite valiant efforts by a small group of committed lawmakers to draw public attention to the law’s serious privacy implications and to attain greater public accountability with respect to how the law operates in practice. We ought not stand idly by and accept the continued warrantless monitoring of our international communications.

Mitra Ebadolahi

Mitra Ebadolahi is the inaugural Nadine Strossen Fellow with the American Civil Liberties Union’s National Security Project.