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Federal appeals court reinstates wiretapping suit

By Erin Bock

[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [decision, PDF] Monday that the plaintiffs in Amnesty v. Blai [ACLU materials] have standing to sue the US government over the constitutionality of a federal eavesdropping law, reinstating their lawsuit. The plaintiffs, including attorneys, journalists and rights organizations, facially challenged [JURIST report] Section 702 of the Foreign Intelligence Surveillance Act (FISA) [50 USC § 1881(a)], which was added by the FISA Amendments Act of 2008 (FAA) [HR 6304 materials]. The law created procedures to allow electronic government surveillance of individuals living outside of the US for foreign intelligence purposes. The plaintiffs alleged that the law violated the Fourth Amendment, First Amendment and Article III of the Constitution. A 2009 ruling [JURIST report] from the US District Court in Manhattan found that the plaintiffs lacked standing because they did not suffer an injury in fact and dismissed the suit. Plaintiffs appealed and argued that the fear of future government surveillance while performing work-related activities such as conducting interviews with possible targets caused an injury in fact through "economic and professional costs" expended to protect themselves. They also alleged that the law chilled their freedom of speech. The circuit court determined that this did constitute standing because the law directly affects them:

[T]he FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored.

The American Civil Liberties Union (ACLU) [advocacy website], a plaintiff in the case, declared the ruling a victory [press release] and applauded the court's decision to allow the law to be challenged.

Last month, the ACLU chided the Senate's decision to extend surveillance provisions of the USA Patriot Act [JURIST report]. The measures were set to expire on February 28, and the vote was seen as a delay tactic to allow for further debate about the provisions, which include roving wiretaps, "lone wolf" terrorism suspects and the government's ability to seize "any tangible items" in the course of surveillance. The Obama administration released a statement of administration policy [text, PDF] earlier in February calling for a three-year renewal of the provisions. The provisions were previously extended in February 2010 at the request [JURIST reports] of the Obama administration.

Full post as published by JURIST - The Paper Chase on March 21, 2011 (boomark / email).