Is Big Brother the New Normal? The Supreme Court Will Decide

In a less than reassuring twist, the U.S. government will argue that no one can sue to end one form of intelligence surveillance because nobody is safe from surveillance.

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Director of National Intelligence James Clapper is plaintiff in the case. (Kevin Lamarque/Reuters)

Suppose Big Brother is watching you. You in particular, and all your friends -- recording your phone conversations, reading your emails and instant messages -- all with the aim of finding something to use against you and your friends.

As my students would say, sucks to be you. It sucks badly enough, in fact, that you might be able to go into federal court and ask a judge to make the government explain why they're doing it, and maybe force them to get a warrant.

But suppose you find out that Big Brother is watching some other unnamed people. And those other people sound a lot like some of the people you sometimes work with. And if Big Brother really is watching those people, you need to watch what you say, or stop talking to those people altogether. But you don't know for sure.

It still sucks to be you. But does it suck enough that you can go to court to try to stop it?

That is the issue that will be argued Monday in front of the Supreme Court. The case is called Clapper v. Amnesty International. The underlying question is an important one in post-9/11 America: How extensively can the government eavesdrop on phone calls and emails by foreigners of "interest" to our intelligence agencies? And how much can such government surveillance legally impact American citizens seeking to communicate with people our government may dislike or suspect of unsavory deeds?

That issue, however, won't be squarely presented Monday. Instead, the case will turn on what courts call "standing to sue." This abstruse lawyers' question sometimes turns my con law students' thoughts to career change. But it is vitally important for understanding how the courts deal with constitutional claims. So let's try to break it down in non-soporific language.

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Article III of the Constitution extends "the judicial power of the United States" to "cases and controversies." That means, courts have said over the years, that citizens can't sue just because they think the government has violated the Constitution; they must show that they personally have a remediable quarrel with the government -- that it particularly sucks to be them, and that a victory in court will make things better.

The basic questions behind "standing to sue" are twofold. First, how badly does it suck to be you? And, second, what do you expect the government to do about it? If the answer to the first question is "about the same as it sucks to be anybody else," you're out of court. Ditto if the answer to the second question is "nothing in particular."

Here are the facts in Clapper. During the 1960s and 70s, intelligence agencies engaged in widespread electronic eavesdropping on Americans when they decided that what they intercepted related to national security. The Supreme Court held in 1972 that this sort of warrantless spying on Americans violates the Fourth Amendment. The decision led to the enactment in 1978 of the Foreign Intelligence Surveillance Act. That law sharply limited government's power to eavesdrop on "United States persons," meaning individuals or organizations lawfully present in the country. At the same time, it set up a secret judicial body -- the Foreign Intelligence Surveillance Court (FISC) -- that can give the government permission to intercept communications that come from foreigners, foreign organizations, or foreign governments, if it can spell out why it needs the information. Even then, the government must undertake "minimization" proceedings to keep from gathering unnecessary information on "United States persons."

A group of lawyers, human rights groups, news media, and journalists filed suit in federal court, claiming that the surveillance laws impeded their ability to communicate with overseas contacts. The government responded, in essence, that paranoia could not establish standing.

The FISC has virtually never turned a government application down. Nonetheless, after 9/11, the Bush Administration refused to follow the Act's procedures and began a massive secret program of warrantless surveillance on communications abroad, including some to and from people in the United States. Once that program became public knowledge, the Administration sought Congressional authorization for this kind of spying. In 2008, Congress passed the FISA Amendments Act of 2008 (FAA).

As a result, the government no longer needs to specify the targets of its spying; it simply must file with the FISC a declaration that it needs to conduct surveillance, not on a given individual, but on a certain class of communications. The FISC does not review this filing; it simply makes sure the government has filled it out properly, and then issues a surveillance order. Government may still not "intentionally target" persons in the U.S. -- but it no longer has to designate a specific target at all, and it does not need to show that it has "probable cause" to spy on anyone in particular. It's a license for wholesale spying, as long as the communications involve one party in another country.

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After FAA passed, a group of lawyers, human rights groups, news media, and journalists (including Pulitzer winner hris Hedges) filed suit in federal court. They are seeking a declaration that the new, looser procedures violate the Fourth Amendment.

After FAA's passage, they argued, it now really sucked to be them; if the FAA program was stopped, it would suck a lot less. That's because they had frequent confidential dealings with sources overseas -- clients seeking to communicate confidentially with their U.S. lawyers, human rights advocates and witnesses not eager to be known publicly for opposing oppressive regimes, and journalistic sources displeasing to the United States. After FAA, they charged, they had to assume that their phone calls and emails might be intercepted. As a result, they often had to travel abroad to meet with their clients or sources, or, if they could not, forgo communicating at all.

The government responded, in essence, that paranoia could not establish standing. True, intelligence agencies might be listening; but then again, they might be listening to other people entirely. If the plaintiffs got antsy and wanted to spend money to travel abroad rather than call or email, well, that wasn't an "injury in fact," just a choice by the plaintiffs themselves.

In a ground-breaking opinion, a panel of the Second Circuit held that the plaintiffs did have "standing to sue." The plaintiffs had suffered an "injury in fact" -- they had to spend money, a quintessential legal injury. The panel ordered the district court to hold a trial on the constitutional issue. But the government petitioned the Supreme Court to overturn the panel's order, and the court has granted review.

It's hard to believe that it has done so in order to affirm the Second Circuit. In the 1972 case of Laird v. Tatum, the Supreme Court refused to restrain the military from conducting surveillance on civilian groups in the U.S., because the plaintiffs claimed only that the program had a "chilling" effect on their freedom of expression. "Allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm," Chief Justice Burger wrote. Laird was a 5-4 decision, but it would be hard to argue that the changing makeup of the court since 1972 has strengthened its commitment to civil liberties.

In addition, almost everyone agrees that federal courts don't exist in order to review any action the government takes just because someone doesn't like it. If there were no "standing" rules -- rules that prevent relatively frivolous suits -- government might be paralyzed, and the courts inundated, with abstract or ideological lawsuits. So some "standing" rule is needed; it's just hard to draw the line when deciding whether to apply it.

In this case, the government argues not only that the plaintiffs are paranoid, but also that winning the lawsuit wouldn't help soothe their paranoia. "The government has several alternative means of conducting foreign-intelligence collection targeting non-United States persons abroad and, as respondents describe them, respondents' contacts could be targets for surveillance by other countries," the government's brief explains -- meaning that the plaintiffs would (or should) continue to be equally paranoid even if they obtain an order striking down the FAA. The government has ways of finding things out, not to mention friends in other countries who will pass information along.

In other words: You're right. Big Brother is watching. Whatever the Court decides, Big Brother will still be watching. Big Brother may be watching you right now, and you may never know. Since 9/11, our national life has changed forever. Surveillance is the new normal.

Sucks to be all of us.

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.


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