Supreme Court FISA Decision: How the NSA and the Courts Are Trashing the First Amendment


On February 26, 2013, the Supreme Court denied standing to journalists in challenging recent amendments to the Federal Intelligence Surveillance Act (FISA). This 5-4 ruling in Clapper v. Amnesty is a First Amendment disaster — it makes stories related to terrorism or war unavailable or more difficult to obtain. Without full exposure of these important topics, America risks a greater chance of government abuse and a general ignorance of crucial developments abroad.

FISA has a history of abuse. In 2005, the New York Times revealed that the National Security Agency (NSA) was conducting a secret and illegal wiretapping program in search of terrorists. Instead of reprimanding the government, Congress passed FISA, which made the practice legal. After an AT&T whistleblower revealed that a staggering number of emails and phone calls were being surveilled under FISA, another amendment passed to further expand the scope of the government's authority. A secret ex parte FISA court exists solely to grant FISA warrants, which, as a lower court acknowledged, almost never denies a request.

The most recent amendment in 2008 allowed the government to conduct dragnet surveillance with a single "warrant." That's in quotes because unlike most warrants, FISA warrants under the recent amendment no longer have to name specifically who's being targeted or what channels of communication need to be searched. These quasi-warrants only have to name what they're searching for - a single warrant can result in the interception of thousands or millions of people's communications. In a recent FOIA request for information on who's being surveilled, the government mockingly replied with 111 fully blacked-out pages.

In Clapper v. Amnesty, journalists, attorneys, and human rights activists challenged this amendment to FISA. This case revolved around the issue of plaintiffs establishing standing — that is, whether plaintiffs can show a present injury or imminent future harm by the unconstitutionality of statute. The named plaintiffs are important here because they are not ordinary citizens claiming they're being wiretapped. Instead, the plaintiffs were people that courts admitted were highly likely to be targeted under the statute. For example, attorneys representing Guantanamo detainees (i.e., suspected terrorists) in a case against the government would be denying their clients confidentiality if the opposing side were listening in to their conversations. Likewise, activists helping victims fight a foreign government will have to tell their foreign contacts that our government may (and probably will) be listening and we have no idea what they'll do with that information. Foreign sources certainly will refuse to speak if there's a chance our government will share information that, if revealed, could result in their imprisonment or death.

The biggest stab to the American public, however, is the effect the 2008 amendment has on journalists. The Supreme Court essentially held that it's reasonable for journalists to take plane trips to meet their foreign sources because these journalists' phone lines are probably being tapped. While the Supreme Court considered the cost of plane tickets to meet foreign sources, the real issue is that meeting someone in person in Iraq, for example, is not a substitute for a phone call or email. The contact may be unwilling to meet in person, may be difficult to find, or may be even be captured or deceased by the time our journalists fly to meet them. Thus, our media has lost a large variety of sources that could potentially reveal our own government corruption in its search of terrorists. The public is losing its ability to ever find out about these stories.