Posted by Tarryn Ryan and Paul Kallenbach
Last month the United States Supreme Court put a definitive end to a challenge of the constitutionality of laws which allow the US Government to conduct warrantless surveillance of non-US citizens, by finding that the plaintiffs lacked standing to bring the action.[i] The challenge was brought by human rights groups including Amnesty International, lawyers and journalists, all of whom claimed that their communications were likely to be caught up in surveillance activities carried out under the laws introduced by the FISA Amendment Act.[ii]
What is the FISA Amendment Act?
The FISA Amendment Act was introduced by the Bush administration in 2008. It expanded the surveillance powers that already existed under the Foreign Intelligence Surveillance Act of 1978 which was designed to facilitate electronic surveillance of foreign powers for foreign intelligence purposes.
The original Act established the Foreign Intelligence Surveillance Court (FISC) which could authorise surveillance where it found there was probable cause to believe that the target was a foreign power or an agent of a foreign power, and that the facilities targeted were being used by that foreign power or an agent of the foreign power. The Foreign Intelligence Surveillance Court of Review was also established and given jurisdiction to hear appeals of decisions where authorisation had been refused. Of course all of this went on behind closed doors.
Since 9/11, the US Government has made a series of amendments to the original Act, enabling it to cast a wider net in its surveillance activities. The FISA Amendment Act is the most recent of those amendments. It enables the US Government to carry out surveillance of any non-US citizen located outside of the United States for the purpose of acquiring 'foreign intelligence information' - a term that is given an expansive definition, and goes so far as to include information that is 'relevant' to US foreign relations.
Under these amendments, the FISC's powers of oversight have also been whittled down so that the US Government is no longer required to show probable cause or even give the FISC any specific details on who is being targeted or how. All the US Government need show is that 'a significant purpose of the acquisition is to obtain foreign intelligence information' and that it has targeting and privacy intrusion minimisation procedures in place. In some circumstances the US Government can proceed with the surveillance without even going before the FISC.
Originally the FISA Amendment Act had a sunset clause of five years. However, just before Christmas last year, the US Congress, with the support of the Obama administration, extended its operation until 2017.
What happened in the Amnesty International case?
On the day the FISA Amendment Act was passed in 2008, a group of human rights activists, lawyers and journalists launched a challenge to the new laws on the basis that they were unconstitutional. However before the plaintiffs even got to mount their case, the District Court for the Southern District of New York (an original jurisdiction federal court) found that they did not have standing to bring the action. The United States Court of Appeals for the Second Circuit reversed this decision, which was then appealed to the United States Supreme Court.
In a 5-4 decision, the majority held that the plaintiffs did not have standing to bring their claim because they could not show that their communications had been subject to surveillance. The plaintiffs' argument was that their lines of work required them to be in communication with individuals that were likely to be targeted under the new laws. As a result, they said there was 'an objectively reasonable likelihood' that their communications would be intercepted. In the alternative they argued that the risk of being subject to surveillance required them to take onerous and costly measures to avoid interception. A number of the plaintiffs were lawyers who represented individuals suspected of terrorism offences. They submitted that in order to prevent surveillance of their privileged communications with their clients, they had to either not engage in these communications or travel outside of the United States to have them.
Nevertheless the majority held that that the plaintiffs' case was based on a series of assumptions and that they could not show the required likelihood of injury to give them standing. This decision was staunchly criticised by the minority which said that the Court had often found plaintiffs to have standing where the risk of injury was far less likely than in the present case.
What does this mean?
As the ultimate US appellate court, the US Supreme Court's decision brings an end to the plaintiffs' challenge. Following the passing of the FISA Amendment Act there were a number of parties who sought to challenge the laws on various grounds. This was one of the few cases that was still on foot. Commentators are now pessimistic about whether the laws (which many consider to be unconstitutional) will ever be able to be effectively challenged. The majority of the Court essentially found that only individuals who could actually show that their communications had been intercepted would be able to make the challenge - which will be difficult seeing as these surveillance activities are, by their very nature, carried out in secrect.
While the existence of these powers is concerning for those in the United States, it is of greater concern to non-US citizens who could potentially be a target of, or even just caught up in, FISA's far reaching surveillance net.
[i] Clapper v Amnesty International USA, No 11-1025, slip op (Sup Ct, Feb 26, 2013)
[ii] The Foreign Intelligence Surveillance Act of 1978, which the FISA Amendment Act amends, is codified at 50 USC ch 36
0 comments:
Post a Comment