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Supreme Court hears arguments on federal wiretapping law

The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases Monday. In Clapper v. Amnesty International [transcript, PDF; JURIST report] the court heard arguments to determine whether advocacy organizations which represent or work with terrorist suspects, such as Amnesty International (AI) and the American Civil Liberties Union (ACLU) [advocacy websites] have standing to challenge a federal eavesdropping law. Parties included in the suit are attorneys, journalists and rights organizations, represented by the ACLU, who are facially challenging [JURIST report] Section 702 of the Foreign Intelligence Surveillance Act (FISA) [50 USC § 1881(a) text], which was added by the FISA Amendments Act of 2008 (FAA) [HR 6304 materials]. The law creates procedures to allow electronic government surveillance of individuals living outside of the US for foreign intelligence purposes. The Solicitor General, the petitioner in this case, argued that standing could only arise if the government had information obtained through wiretapping that could be "used" against one of the parties. Further, he urged trust in the Foreign Intelligence Surveillance Court [official profile], a secret court allowed to survey the surveillance obtained through FISA. The attorney for respondents—a representative from the ACLU—disagreed, arguing that the professionals involved have to temper their practices immediately and risk confidences with clients due to the act:

[Respondents] have standing here because there is a substantial risk that their communications will be acquired under the act and because this substantial risk has effectively compelled them to take immediate measures to protect information that is sensitive or privileged. [Respondents] are lawyers, journalists and human rights researchers who routinely engage in communications that the act is designed to allow the Government to acquire. [Respondents] communicate, for example, foreign intelligence information, the kind of information that the statute expressly authorizes the Government to collect, to retain and disseminate.
The court had not granted any challenges to FISA until this hearing, and although many expected the court to be easily swayed by the Solicitor General, reports from oral arguments indicate a divided court [SCOTUSblog report]. Both the ACLU and AI [press releases] released statements on the arguments, with the ACLU declaring: "By jeopardizing their abilities to engage in confidential communications, the FISA Amendments Act injures our clients, as at least some of the justices seemed to recognize."

The court also heard oral arguments in Kirtsaeng v. John Wiley & Sons, Inc. [transcript, PDF; JURIST Copyright Act [text], a copyrighted work obtained legally outside the US may be sold in the US without the copyright owner's permission. Petitioner and Thai national Supap Kirtsaeng resold foreign-manufactured textbooks in the US that were published originally and only authorized for sale in other countries. His attorney argued that as they understand the law, "lawfully made under this title means made wherever, in a way that satisfies US copyright standards," so if a copyright owner sells a product somewhere, he/she loses distribution rights over it in any other country. The respondents argued that under the first sale doctrine, also quoting the "lawfully made under this title" portion of the law, there is a clear presumption that US Copyright law controls, and that sellers must not just satisfy it: "Now, when we just say lawfully made, you know, we need something to measure, well, how do we know whether it's lawfully made? Well, you look to the rules in the copyright law. So if you just—if you focus more on the lawfully word, lawfully made, and then under this title doesn't mean made in the United States, it means lawfully made under the rules of this title." JURIST Guest Columnists Beth Heifetz and David Cooper of Jones Day analyzed the case [JURIST comment] and suggested that copyright protections for the resale of goods should only apply to copyrighted goods first manufactured and sold outside the US.

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