Plaintiffs May Sue the Government Over Warrantless Spying

By Teresa Anderson

A federal appeals court has ruled that the plaintiffs challenging the constitutionality of the government’s warrantless wiretapping law do have standing to pursue their case.

The plaintiffs, including Amnesty International as well as journalists, international aid groups, labor organizations, and attorneys, argued that the amendments to the Foreign Intelligence Surveillance Act (FISA) violate the U.S. Constitution. The appellate court overturned (.pdf) a lower court’s decision that the plaintiffs had no grounds to sue because they had no evidence that they had been harmed by the law.

The case involves the FISA amendments, which allow the federal government to conduct surveillance of phone and Internet communications without a warrant if they believe that at least one party involved in the communication is overseas and suspected of having links to terrorist organizations.

The plaintiffs argued that, as international aid organizations or groups that do significant work overseas, they are likely to be targets of the government’s warrantless surveillance program. As such, they argued, they have been forced to take “costly and burdensome measures to protect the confidentiality of certain communications," such as traveling overseas to meet with clients rather than communicating electronically.

Amnesty International v Clapper.pdf131.51 KB


the thorny issue of privacy and civl liberties

 In his 1992 book, Visions of Liberty, former Executive Director of the ACLU, Ira Glasser writes: 

"The use of wiretapping and electronic eavesdropping emerged during the Prohibition era. Roy Olmstead was a suspected bootlegger whom the government wished to search. It placed taps in the basement of his office building and on wires in the streets near his home. No physical entry into his office or home took place. Olmstead was convicted entirely on the basis of evidence from the wiretaps. 
"In his appeal to the Supreme Court, Olmstead argued that the taps were a search conducted without a warrant and without probable cause, and that the evidence seized against him should have been excluded because it was illegally gathered. He also argued that his Fifth Amendment right not to be a witness against himself was violated. 
"By a 5-4 vote, the Court rejected his arguments and upheld the government's power to wiretap without limit and without any Fourth Amendment restrictions, on the grounds that no actual physical intrusion had taken place. 
"Olmstead's Fifth Amendment claim was also dismissed on the grounds that he had not been compelled to talk on the telephone, but had done so voluntarily.
"Thus the Court upheld the government's power to do by trickery and surreptitious means what it was not permitted to do honestly and openly.
"It wasn't until 1967, in a similar case involving gambling, that the Court overruled the Olmstead decision by an 8-1 margin and recognized that the Fourth Amendment applied to wiretapping and electronic surveillance. 
"Interestingly, these cases arose in the context of crimes like bootlegging and gambling. During the past twenty years, the majority of wiretapping and electronic eavesdropping by both state and federal officials has been in cases involving drug dealing and gambling. 
"Serious crimes of violence, such as homicide, assault, rape, robbery, and burglary, are rarely the target of electronic eavesdropping, which is not normally a useful tool in such cases. 
"From the beginning, when wiretapping was virtually invented to enforce laws prohibiting the sale of alcohol, to the late 1960s, when gambling was a major target, to the present, when the use and sale of drugs other than alcohol are the main target, these intrusive devices have been used mostly to enforce laws aimed at punishing and proscribing personal conduct that society deems immoral. 
"Because such conduct essentially involves private activities among consenting adults who are all likely to want to keep those activities secret, they are harder to investigate and prosecute than crimes like robbery or burglary, in which an unwilling victim will probably aid any investigation...the invasion of privacy inherent in wiretapping and electronic eavesdropping remains with us as part of the legacy of our attempts to criminalize personal conduct. 
"The other major use of electronic eavesdropping has been to punish political dissent. For decades, former FBI director J. Edgar Hoover used wiretaps and other electronic devices to spy on political figures and citizens not yet suspected of having committed a crime. He built vast dossiers on their political activities and personal lives. Special units of local police called 'Red Squads' did the same.
"Nor has electronic surveillance been the only source of our loss of privacy. The widespread use of urine-testing in employment to see whether people may have been using illegal substances violates the rights of many innocent people.
"Urine-testing programs are usually not restricted to those who show evidence of impaired job performance that may be due to the use of drugs. These tests are normally administered randomly. Without any probable cause for search, this is a violation of the Fourth Amendment.
(Unless one voluntarily agrees before employment to submit to such searches as a condition of employment.)
"Many of these random tests have been struck down by the courts, where the government is the employer. But some have been upheld. Supreme Court Justice Antonin Scalia (hardly a Constitutional liberal!), denounced them as 'an immolation of privacy and human dignity in symbolic opposition to drug use.'"

In January 2006, on the eve of the West Coast Walk For Life in San Francisco, CA, Carol Crossed of Democrats For Life (she wrote the foreword to my own book, The Liberal Case Against Abortion) spoke optimistically of Roe v. Wade being overturned.

When I asked her if Roe could be overturned without Griswold v. Connecticut (the 1965 Supreme Court decision which guarantees a right to marital privacy regarding the practice of contraception) being overturned as well, Carol froze, and couldn't answer the question!

I would have preferred it if Carol had said:  "You're right.  Only pro-life Republicans like to watch others pee and defecate.  It's wrong to put people under surveillance without their knowledge or consent.  We shouldn't have to resort to draconian tactics to protect prenatal life."


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