Standing, Grandstanding and NSA Surveillance

By Timothy Edgar
Wednesday, October 21, 2015, 12:22 PM

“I could tell you, but then I’d have to kill you” best explains why it is difficult to provide meaningful redress for targets of intelligence surveillance. How can anyone challenge surveillance programs when there is no way to know who is a target – and we would very much like to keep it that way?

In Schrems v. Data Protection Commissioner, the Court of Justice of the European Union (CJEU) said that existing US law does not provide “effective judicial protection” for potential NSA targets. ¶ 95. Europeans won’t be fooled into believing that extending Privacy Act rights to foreign citizens solves this problem.

A better approach would be to allow those with reasonable fears of surveillance to challenge the NSA and other three-letter agencies in court. The government would not have to say whether they were actually under surveillance, because it wouldn’t matter to the outcome of the case.

Human rights law allows such challenges. In Klass v. Germany, the European Court of Human Rights (ECHR) addressed whether citizens who were challenging surveillance programs could claim to be “victims of a violation” of the European Convention on Human Rights, even though they did not know if they were under surveillance. ¶ 30. The court decided that they could, reasoning that it was “unacceptable” for surveillance to remain “unchallengeable” as a result of its secrecy. ¶¶ 34-38.

The problem is that American law takes the opposite view. In Clapper v. Amnesty International, the Supreme Court of the United States decided that the plaintiffs could not challenge surveillance under section 702 of the Foreign Intelligence Surveillance Act because they could not show their communications had been obtained by the NSA. Writing for the majority, Justice Alito wrote that the plaintiffs had not alleged the sort of concrete injury needed for their complaints to qualify as one of the proper “Cases” or “Controversies” that Article III of the United States Constitution permits the judicial branch to hear.

The plaintiffs in Clapper were not wearers of tinfoil hats. Instead, they were international human rights lawyers, reporters, and others whose communications put them in touch with the sort of people – including associates of terrorist organizations – who were likely enough to be NSA targets. Nevertheless, the plaintiffs’ reasonable fears of surveillance were not enough to have their complaints heard on the merits. Instead, they had to show that surveillance of their communications was “certainly impending” in order to establish “Article III standing” to sue.

Clapper was decided on constitutional grounds. If Congress amended FISA to allow foreign citizens to challenge NSA surveillance programs – a prospect that is far less likely than amending the Privacy Act – plaintiffs would still have to meet Article III standing requirements. The Supreme Court will soon hear a case that concerns what remedies for privacy harms Congress may create, but no one thinks its powers to do so are unlimited. Standing requirements are important for the separation of powers. They limit Congress’s ability to create “citizen suits” – and, a fortiori, its power to create “foreign citizen suits.” A complaint from an activist that he is just positive that his communications are being collected by the NSA will not be enough. Grandstanding is not the same as standing.

The Article III law of standing is not just a problem for responding to European concerns about privacy – it is the single biggest obstacle for Americans’ ability to hold intelligence agencies to account in court. The best way to protect the rights of Americans may be to provide everyone, regardless of citizenship, the right to challenge the NSA.

In my next post, I will explain why mistakes by the Justice Department, the Snowden revelations, and the NSA’s own transparency drive have undermined the Supreme Court’s rationale in Clapper, making it more likely the courts will hear a new challenge on the merits.