If We Don’t Tell You We’re Watching You / You Maybe Maybe Maybe Can Still Sue

Amnesty Intl. USA v. Clapper, 638 F.3d 118, 2011 ILRC 1479, 39 Med. L. Rptr. 1481 (2d Cir. 2011) [2011 BL 73424]

It comes as no surprise that the federal government continues to fight tooth and nail to prevent court review of any kind of its warrantless surveillance of the world’s communications. What’s surprising is that, even with the strong deference shown by U. S. courts towards claims of “national security”, the occasional ruling still slips through. This is one of those. A mix of attorneys, journalists and human rights organizations have challenged the constitutionality of changes to the Foreign Intelligence Surveillance Act, arguing that though they do not have access to affirmative evidence that they are being surveilled, it is plausible enough that they are being surveilled that they have taken expensive and burdensome actions to change the way they communicate with their overseas contacts to take that possibility into account. The case will go ahead as a facial challenge to Section 702 of the FISA Amendments Act.

The Act’s language, accurately described by Lyle Dennison, heartwarmingly excludes intentional capture of US persons’ communications:

The amendments significantly expanded the federal government’s authority to engage in electronic surveillance that supposedly targets only foreign nationals, but may pick up communications involving Americans, although that is not allowed intentionally [my italics].

Let’s review. FISA got expanded to allow communications involving Americans to be vacuumed up at will without a warrant, so long as the vacuuming is not intentional. Perhaps the thinking was that this would insulate a computer algorithm from Fourth Amendment review, because a computer algorithm could be deemed by a court to have no intent. We would argue that a computer algorithm that does not distinguish between the communications of U. S. citizens and of non-U. S. citizens is in effect intentionally designed to pick up communications involving Americans. “Oops, golly gee, I don’t know how that happened” is not a legitimate defense against Fourth Amendment review. (h/t: SCOTUSBlog)

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