Amnesty v. Clapper (Challenging the FISA Amendments Act of 2008)

This case challenges the constitutionality of the FISA Amendments Act of 2008 – a law that gives the government virtually unchecked authority to intercept Americans’ international e-mails and telephone calls. The NYCLU and ACLU filed the lawsuit on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work – which relies on confidential communications – are compromised by the new law. Most of the clients are in New York. The law, signed by President Bush on July 10, 2008, not only legalizes the warrantless surveillance program that the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans’ international communications.

The NYCLU and ACLU argue that the spying law violates Americans’ rights to free speech and privacy under the First and Fourth Amendments to the U.S. Constitution. The law permits the government to conduct intrusive surveillance without telling a court who it intends to spy on, what phone lines and e-mail addresses it intends to monitor, where its surveillance targets are located, why it’s conducting the surveillance or whether it suspects any party to the communication of wrongdoing.

The lawsuit seeks a court order declaring that the law is unconstitutional and ordering its immediate and permanent halt. Plaintiffs in the case are The Nation and its contributing journalists Naomi Klein and Chris Hedges, Amnesty International USA, Global Rights, Global Fund for Women, Human Rights Watch, PEN American Center, Service Employees International Union, Washington Office on Latin America, and International Criminal Defense Attorneys Association defense attorneys Dan Arshack, David Nevin, Scott McKay and Sylvia Royce.

U.S. District Court Judge John G. Koetl of the Southern District of New York dismissed the case on Aug. 20, 2009 because plaintiffs could not prove with certainty that they had been spied on, writing: “[t]he plaintiffs’ failure to show that they are subject to the FAA in any concrete way is sufficient to conclude that the plaintiffs lack standing to challenge the FAA.” The ACLU and NYCLU filed an appeal of the dismissal on Oct. 1, 2009 with the U.S. Court of Appeals for the Second Circuit.

On March 21, 2011, the appeals court overturned the lower court’s ruling. The ruling found that the plaintiffs have standing to challenge the law even though they cannot show to a certainty that the government is acquiring their communications, finding that “the FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored. Either way, the FAA directly affects them.”

In a 5-4 ruling handed down on Feb. 26, 2013, the U.S. Supreme Court held that the plaintiffs don’t have standing to challenge the constitutionality of the warrantless wiretapping program.

A complete list of court filings is available here. 

S.D.N.Y., Index No. 08 Civ. 6259 (direct)