SURVEILLANCE

Clapper v. Amnesty International USA

Issues

Does a group of international organizations, lawyers, and media personnel have standing to sue for prospective relief based on their allegation that the United States would imminently acquire their international communications using surveillance authorized under the Foreign Intelligence Surveillance Act of 1978?

 

In 2008, Congress passed the FISA Amendments Act of 2008 (FAA), which revised the procedures for authorizing certain foreign intelligence collection, including expanded authority to collect information on persons outside of the United States using electronic surveillance.  Additionally, the new procedures allow the government to disclose less information before targeting people reasonably believed to be abroad. Shortly after Congress passed the FAA, several organizations, including Amnesty International and the American Civil Liberties Union (ACLU), filed a lawsuit in federal court challenging the act’s constitutionality.  The district court dismissed the lawsuit because it found the organizations lacked standing.  The Second Circuit Court of Appeals reversed, and now the Supreme Court must decide if Amnesty International and other organizations have a sufficient stake to allow them to move forward with their constitutional challenges to the FAA. Amnesty International and other organizations argue that they have standing based on a reasonable fear that the government will monitor some of their communications and based on the costly methods used to prevent that monitoring. Director of National Intelligence James Clapper argues that the groups do not have standing because their injuries are not imminent, they do not have ongoing or present injuries, and self-inflicted harms are not recognizable injuries. The decision in this case will likely result in a rebalancing of the competing interest in government transparency and safeguarding national security. Further, the decision will likely cause one side to incur greater costs either in litigating more cases based on alleged, unproven surveillance or in protecting confidential communications against unknowable surveillance.

Questions as Framed for the Court by the Parties

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)- referred to here as Section 1881a- allows the Attorney General and Director of National Intelligence to authorize jointly the "targeting of [non-United States] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information," normally with the Foreign Intelligence Surveillance Court's prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Respondents are United States persons who may not be targeted for surveillance under Section 1881a. Respondents filed this action on the day that Section 1881a was enacted, seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a. The question presented is:

Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using Section 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.

Amnesty International USA, along with attorneys, human rights, labor, legal, and media organizations, filed a lawsuit challenging the constitutionality of the FISA Amendments Act of 2008 (FAA). See Brief for the Respondents, American Civil Liberties Union at 15-16. The FAA amends the Foreign Intelligence Surveillance Act of 1978 (FISA), which established procedures for gathering foreign intelligence including by el

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electronic surveillance

Overview

Electronic surveillance is the acquisition of information by an electronic, mechanical, or other surveillance device of the contents of any wire or electronic communication, under circumstances in which a party to the communication has a reasonable expectation of privacy.

Federal Bureau of Investigation v. Fazaga

Issues

Does Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 supplant the state-secrets privilege to allow a district court to investigate alleged national security secrets and determine the merits of a lawsuit challenging covert government surveillance of individuals freely practicing their religion?

This case asks the Supreme Court to balance the state-secrets privilege and the Foreign Intelligence Surveillance Act of 1978 (“FISA”). The state-secrets privilege permits the government to withhold certain information from evidence in a proceeding if that information’s disclosure would be detrimental to national security. FISA establishes procedures for judicial oversight of the government’s electronic surveillance of individuals in the United States. After the Federal Bureau of Investigation electronically surveilled Yassir Fazaga (“Fazaga”) and the Islamic Center as a part of counterterrorism efforts, Fazaga and other members of the Center filed suit based unconstitutional searches and the freedom of religion, seeking to use FISA to access the surveillance. The Federal Bureau of Investigation argues that the state-secrets privilege supersedes FISA and should be honored to avoid disclosure of privileged information that would harm national security. Yassir Fazaga counters that FISA displaces the state-secrets privilege and requires in camera and ex parte review of his religious freedom claims. The outcome of this case has strong implications for national security interests and civil liberties.

Questions as Framed for the Court by the Parties

Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the states-secret privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.

The Federal Bureau of Investigation (“FBI”), beginning at least in 2006, set up a counterterrorism operation known as Operation Flex, which used detection and prevention techniques to counter alleged terrorism and sought to “gather information on Muslims.” Fazaga v. Federal Bureau of Investigation at 19. As part of this operation, the FBI hired Craig Monteilh (“Monteilh”) as an informant in Los Angeles.

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United States v. Jones

Issues

Whether law enforcement’s installation and use of a GPS tracking device to continuously monitor a person’s vehicle movements for an extended period of time violates that person’s Fourth Amendment right to be free of unreasonable or warrantless searches and seizures.

 

FBI agents installed a Global Positioning System (“GPS”) tracking device on Antoine Jones’s vehicle as part of a drug trafficking investigation. The United States used the locational data from the GPS in a federal trial that resulted in Jones’s conviction for conspiracy. The Court of Appeals for the District of Columbia Circuit reversed that conviction, holding that the agents needed a warrant before installing the GPS. The United States argues that a warrant was unnecessary because Jones had no reasonable expectation of privacy in his movements in public and was never deprived use of his Jeep. Jones responds that he has a privacy interest in the aggregation of his movements over a prolonged period and that the aggregation of such information interferes with his use of the Jeep. The Supreme Court’s decision will affect how police employ new technologies to reduce the manpower and cost required for criminal investigations. The Court’s decision will also consider how citizens can protect themselves from government officials’ possible abuse of new technologies, particularly where misuse threatens fundamental privacy rights.

Questions as Framed for the Court by the Parties

Whether the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment.

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “whether the government violated respondent's fourth amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.”

In 2004, the Federal Bureau of Investigation (“FBI”) launched an investigation on two business partners, Antoine Jones and Lawrence Maynard, for possible drug trafficking. See United States v. Maynard, 615 F.3d 544, 549 (D.C. Cir.

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Acknowledgments

The authors would like to thank Professor Sherry Colb for her insights into this case and former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

Additional Resources

• Wex: Privacy

• Verdict, Sherry Colb: One Way or Another, I’m Gonna Find Ya: The U.S. Supreme Court Considers Whether GPS Tracking of Suspects’ Cars Requires a Search Warrant (Sept. 21, 2011)

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