Federal judge dismisses challenge to overseas wiretapping law

[JURIST] A judge in the US District Court for the Southern District of New York [official website] on Thursday dismissed [opinion, PDF] a lawsuit [complaint, PDF] challenging amendments to the Foreign Intelligence Surveillance Act (FISA) [text; JURIST news archive] that expand government power to eavesdrop on overseas conversations. The suit was filed [JURIST report] in July 2008 by the American Civil Liberties Union (ACLU) [advocacy website] on behalf of various rights groups, shortly after then-president George W. Bush signed the FISA Amendments Act (FAA) [HR 6304 text, PDF] into law. Dismissing the lawsuit, Judge John Koeltl ruled that the plaintiffs lacked standing to assert a claim. Director of the ACLU National Security Project Jameel Jaffer said [press release:

We are disappointed by today's ruling, which will allow the mass acquisition of Americans' international e-mails and telephone calls to continue unchecked. To say, as the court says, that plaintiffs can't challenge this statute unless they can show that their own communications have been collected under it is to say that this statute may not be subject to judicial review at all. The vast majority of people whose communications are intercepted under this statute will never know about it – in fact it's possible that no one will ever be able to make the showing that the court says is required.

The court's decision effectively means that Americans' privacy rights will be left to the mercy of the political branches. This is deeply troubling, because the courts have a crucial role to play in ensuring that individual rights are not needlessly infringed upon by statutes enacted in the name of national security.
Plaintiffs are reportedly considering an appeal of Thursday's ruling.

In June, a federal judge upheld [JURIST report] provisions of the FAA giving immunity to telecom companies from liability associated with assisting the National Security Agency (NSA) with warrantless eavesdropping, dismissing 46 lawsuits against the telecom industry. In January, the Foreign Intelligence Surveillance Court of Review made public [JURIST report] a ruling from August 2008 that upheld the Protect America Act [text], a previous 2007 amendment to FISA that allowed warrantless wiretaps of international phone and e-mail communications. After the amendment, warrants were still required to monitor purely domestic communications. The 2008 FISA amendment law granted the FISA court authority to review a wider range of wiretapping orders, prohibited the executive branch from overriding the court's authority, and ordered the DOJ and other agencies to issue this latest report on the country's use of wiretapping orders.

 

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