On The Front Lines
Court Reinstates Lawsuit Challenging Unconstitutional Spying Law
Federal Appeals Court Rules Plaintiffs Have Standing to Challenge FISA Amendments Act
NEW YORK, NY. -- In a huge victory for privacy and the rule of law, a federal appeals court today reinstated a landmark lawsuit challenging an unconstitutional government spying law. The American Civil Liberties Union and the New York Civil Liberties Union filed the lawsuit in July 2008 to stop the government from conducting surveillance under the FISA (Foreign Intelligence Surveillance Act of 1978) Amendments Act (FAA), a statute that gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls.
In partnership with a coalition of concerned organizations, including the Brennan Center for Justice at New York University School of Law, The Rutherford Institute filed an amicus brief in the case, asking the court to recognize the threats to liberty posed by government surveillance. The appeals court today ruled that the plaintiffs in the case could challenge the FAA without first showing with certainty that they had been spied on under the statute. The court's decision in Amnesty v. McConnell is available at ACLU.org.
"If American citizens cannot challenge government agents who secretly listen to our telephone calls and read our emails, then freedom as we have known it is extinct," said John W. Whitehead, president of The Rutherford Institute. "Thankfully, this federal appeals court decision reaffirms that the rule of law is still alive."
The ACLU filed the lawsuit on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States. Creating a Catch-22 situation, U.S. District Court Judge John G. Koeltl of the Southern District of New York dismissed the case in August 2009, ruling that the plaintiffs did not have the right to challenge the new surveillance law because they could not prove that their own communications had been monitored under it - even though the plaintiffs were unable to do so because of the secrecy of the program.
Today's 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."
The plaintiffs in the lawsuit, Amnesty v. McConnell, are Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, David Nevin, Scott McKay and Sylvia Royce.
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