FISA Amendments Act challenge deserves its day in court

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The Supreme Court will hear oral arguments Oct. 29 in a case filed by journalists and human rights organizations seeking to gain standing to challenge the FISA Amendments Act.

One lower court has upheld plaintiffs' standing, while another has denied standing. Plaintiffs seek to challenge the constitutionality of the FISA Amendments Act (which is up for congressional reauthorization), but that's not what the Supreme Court is being asked to decide. At this point, the argument is merely over whether the constitutional challenge can proceed.

The plaintiffs deserve their day in court and the judicial branch should facilitate a constitutional review of the act.

An amicus brief (.pdf) filed by the Electronic Privacy Information Center notes that despite the inclusion of minimization language in the act, it makes legal "broad collection of international and domestic communications, without significant judicial, legislative, or public oversight."

The Second District Court of Appeals opinion (.pdf) stating that plaintiffs have standing said they have "good reason to believe that their communications, in particular, will fall within the scope of the broad surveillance" permitted by the FISA Amendments Act.

Even the intelligence community itself has given credibility to arguments that the volume of data permitted for interception under the act is very broad by stating that it doesn't know (.pdf) the number of people located in the United States whose communications may have been intercepted and reviewed under its authority.

Federal attorneys argue that fear of intercepted communications doesn't confer standing, that the fear is abstract, the injuries speculative. But the fact that plaintiffs can't specifically say whether their communications have been intercepted speaks precisely to the broad nature of the act--anyone who has ever used the Internet or telephone to make international communications is potentially affected by the FISA Amendments Act. A law of such sweeping scope deserves judicial review and shouldn't be blocked on the grounds that in potentially affecting everyone, it may affect no one. Electronic communications surveillance under the FISA Amendments Act is real. - Dave