Bloomberg News

Wiretapping-Law Challenges Barred by U.S. Supreme Court

February 26, 2013

Wiretapping-Law Challenges Barred by U.S. Supreme Court

A police officer stands on the steps of the Supreme Court building next to the "Authority of Law" statue in Washington, D.C.. Photographer: Andrew Harrer/Bloomberg

Lawyers and civil rights activists can’t challenge a federal law that allows government surveillance of international phone calls and e-mail, the U.S. Supreme Court ruled in a victory for the Obama administration.

The justices, voting 5-4 along ideological lines, today said groups and people represented by the American Civil Liberties Union hadn’t shown they were being harmed by the surveillance. The ACLU’s clients include Amnesty International, lawyers, international rights activists and journalists.

The activists contended that the 2008 law violates the Constitution by allowing the monitoring, with minimal court supervision, of international communications by Americans who aren’t suspected of criminal or terrorist activities.

“It is speculative whether the government will imminently target communications to which respondents are parties,” Justice Samuel Alito wrote for the majority.

Today’s ruling didn’t address the lawfulness of the wiretapping law itself, saying only that the ACLU and its allies lack legal “standing” to pursue their suit. The standing requirement stems from the constitutional limit on federal courts’ authority to decide “cases” and “controversies.”

The administration argued that the law is aimed at monitoring communications by non-Americans outside the country, not the people on the U.S. end of a phone call or e-mail.

‘Commonsense Inference’

Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented. Writing for the group, Breyer said the people and organizations that sued probably would be involved in at least some of the conversations that are intercepted.

“It is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen,” Breyer wrote.

Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy joined Alito in the majority.

The law was enacted following the public disclosure in 2005 that President George W. Bush, after the 2001 terrorist attacks, ordered the National Security Agency to intercept telephone calls between suspected terrorists overseas and their comrades in the U.S. The surveillance was conducted without court review.

‘Sweeping Surveillance’

The law “is a sweeping surveillance statute with far- reaching implications for Americans’ privacy,” Jameel Jaffer, the ACLU lawyer who argued the case, said in an e-mailed statement. “This ruling insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches.”

A separate provision in the law protects telecommunications companies, including AT&T Inc. (T:US) and Verizon Communications Inc. (VZ:US), from lawsuits claiming they let the government use their networks for improper wiretaps.

The ACLU sued, and the 2nd U.S. Circuit Court of Appeals in New York said the suit could proceed.

The 2008 law requires the government to get authorization from a special body, the Foreign Intelligence Surveillance Court, to establish wiretaps.

The ACLU says the law’s requirements are so minimal that an order from the special court can authorize surveillance of thousands or millions of communications. Barring the lawsuit may mean people can never challenge the law because they won’t know they were under surveillance, it says.

The case is Clapper v. Amnesty International USA, 11-1025.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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