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

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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.

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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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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