2nd cir. allows media and others to challenge wiretap law

The U.S. Court of Appeals in New York (2nd Cir.) ruled on Monday that a legal challenge to the federal government’s amended international surveillance law could move forward, overturning a lower court’s decision that the plaintiffs lacked sufficient legal injury to bring such a claim. The procedural ruling, which did not address the merits of the lawsuit, remands the case back to the federal district court for further proceedings.

In 2008, a collection of “attorneys, journalists, and labor, legal, media, and human rights organizations” brought suit in New York federal court challenging the expanded surveillance powers given to the government’s executive branch by the 2008 amendments to the Foreign Intelligence Surveillance Act of 1978. The plaintiffs in Amnesty International USA v. Blair assert that the amendments, which enable the executive branch to obtain broader surveillance authorization with less court oversight, allow "the executive branch sweeping and virtually unregulated authority to monitor the international communications . . . of law-abiding U.S. citizens and residents.”

The district court dismissed the plaintiffs’ case on the grounds that the plaintiffs lacked legal “standing” to facially challenge the law. In short, the district court concluded that the plaintiffs had failed to demonstrate that the challenged statute had personally caused them a legally sufficient injury. In the district court’s view, the plaintiffs’ asserted injuries — namely, a concern about the government monitoring their communications and the costly steps taken by the plaintiffs to avoid such monitoring — were not sufficient to allow the named plaintiffs to challenge the law.

The plaintiffs appealed. The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief on behalf of the plaintiffs in the appeal, arguing that the 2008 amendments infringed on the First Amendment newsgathering and association rights of journalists.

The Second Circuit’s decision on Monday overturns the district court’s ruling. Writing for a three-judge panel, Judge Gerard Lynch concluded that the plaintiffs had provided sufficient evidence of particularized harm to demonstrate legal standing. The court’s opinion noted that the plaintiffs submitted evidence that their professions led them to communicate with clients, sources and other individuals who were likely to be the targets of surveillance, and that the plaintiffs had taken reasonable but costly steps to protect their communications as a result.

“[T]he various groups of plaintiffs — attorneys, journalists, and human rights, labor, legal, and media organizations — have established that they have legitimate interests in not being monitored. Since the plaintiffs allege that the [2008 amendments are] unconstitutional, if the plaintiffs’ legal theory is correct, any search authorized by the [2008 amendments] would be an illegal search that the plaintiffs would reasonably try to avoid,” Lynch said in the ruling.

The court held it was reasonable for the plaintiffs to assume that the 2008 amendments would lead to greater government surveillance. “That both the Executive and the Legislative branches of government believe that the [2008 amendments authorize] new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur,” Lynch said.

The court concluded its 63-page opinion by reiterating that the circumstances and evidence presented by the plaintiffs were sufficient to demonstrate that the plaintiffs had standing to challenge the law. “The plaintiffs’ uncontroverted testimony that they fear their sensitive international electronic communications being monitored and that they have taken costly measures to avoid being monitored — because we deem that fear and those actions to be reasonable in the circumstances of this case — establishes injuries in fact that we find are causally linked to the allegedly unconstitutional [2008 amendments].”

The court’s ruling vacates the trial court’s decision and remands the case to the district court for further proceedings, although the government could seek rehearing or Supreme Court review.