Supreme Court Agrees to Hear Wiretapping Case
Yesterday the Supreme Court agreed to hear a lawsuit challenging the constitutionality of the federal government’s use of electronic surveillance – “wiretapping” – of calls and other communications between Americans and those overseas under the Foreign Intelligence Surveillance Act Amendments (FISA) Act of 2008. According to the American Civil Liberties Union (ACLU), the FISA Amendments Act of 2008 is the “broadest surveillance program ever enacted by Congress.” The ACLU has called for Congress to “fix” FISA, arguing that monitoring of communications should be limited to suspected terrorists.
But the Court is not being asked to consider the constitutionality of the FISA Amendments Act—at least, not yet. Rather, the Court will be deciding whether those bringing the lawsuit – a group of activists, journalists and lawyers – have the standing to actually bring the case. The group claims that they have a “well-founded fear” that their communications have been intercepted by the federal government. However, the Obama administration – defending the law – says that they cannot prove that any of their e-mails or phone calls have actually been monitored.
If the Court decides this group has standing, however, other courts will be able to move on to the more substantive question at issue: the issue of privacy. Do we as Americans have a Fourth Amendment right to not have our private conversations monitored by the government, without the government first obtaining a warrant based on reasonable suspicion? As Lyle Denniston at SCOTUSblog observed, even though the Justices will not be asked to answer this question when they consider the case next fall, they “will have to explore the scope of the 2008 amendments, and what risks — or lack of risks — the program may raise of picking up the telephone calls, e-mails and other electronic exchanges of U.S. citizens or organizations.”
While it is almost impossible to predict what the Supreme Court will do, the Court did recently decide another technology-related privacy case. In that case, the Court recognized that allowing the police to place a GPS tracking device on an individual’s car without a warrant is a violation of the Fourth Amendment. Although the Court issued a number of opinions and some (admittedly significant) disagreement over the reasoning, there was general agreement over the conclusion that today’s technological advancements are still subject
Image courtesy of Mother Jones.