The recently argued case Clapper v. Amnesty International asked this question. The case is a challenge to secret wiretapping but - as we discussed in 2305 when we covered the Supreme Court - one can only take a lawsuit forward if one has standing, which means you have been harmed by the enforcement of a law. But if its a clandestine wiretap (and aren't they all?) how do we know if you've been harmed by it? How do you prove you have standing?
The law in question is the FISA Amendments Act of 2008, FISA stands for Foreign Intelligence Surveillance Act.
Oyez describes the facts of the case:
Several groups, including attorneys, journalists, and human rights
organizations, brought a facial challenge to a provision of the Foreign
Intelligence Surveillance Act (FISA). The provision creates new
procedures for authorizing government electronic surveillance of
non-U.S. persons outside the U.S. for foreign intelligence purposes.
The groups argue that the procedures violate the Fourth Amendment, the
First Amendment, Article III of the Constitution, and the principle of
separation of powers. The new provisions would force these groups to
take costly measures to ensure the confidentiality of their
international communications. The District Court for the Southern
District of New York granted summary judgment for the government,
holding that the groups did not have standing to bring their challenge.
The groups only had an abstract subjective fear of being monitored and
provided no proof that they were subject to the FISA. The U.S. Court of
Appeals for the Second Circuit reversed, holding that the groups had
standing based on a reasonable fear of injury and costs incurred to
avoid that injury.
And states the question presented the court:
Do respondents have Article III standing to seek prospective relief under the FISA?
So there's no substantive issue at hand as to whether it is legal for the government to engage in surveillance. There's only a question about whether there can be a challenge to it at all.
- Commentary here from the New Republic.
- Transcripts of the oral argument here.
