This past Monday, the U.S. Supreme Court heard arguments on the constitutionality of secret warrantless dragnet surveillance of international electronic communications. Amnesty International, which often communicates with Americans who are residents of foreign countries, has challenged the secret surveillance law, known as “FISA,” by arguing that the Fourth Amendment was meant to bar such warrantless surveillance. Although the challenge involves national security issues, its ultimate outcome could have a direct impact on all types of laws that authorize the government to access the private information of its citizens.
Amnesty International and its allies have faced a serious obstacle in making their constitutional arguments. The Obama administration is using the same arguments the Bush Administration used, claiming that the only injury that can allow a lawsuit to move forward under the Fourth Amendment is proof that someone has actually suffered a loss of privacy from warrantless surveillance. This, of course, is a virtually insurmountable hurdle when the surveillance is conducted in secret. In response, Amnesty has claimed its injury is international travel costs that have been incurred because people must communicate in person, rather than using telephones or email.
But there is a better argument. It involves recognizing that the Fourth Amendment does not merely protect against invasions of privacy. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects.” As such, the loss of “security” in our property and private communications is the primary injury that the Fourth Amendment seeks to prevent.
That injury—insecurity in property and private communications—is clear and concrete when the federal government dragoons internet servers to intercept and pierce the private communications of Americans. Hopefully, the Supreme Court will stand with Amnesty International. A win in this case is important to defend the liberties of Americans at home and abroad.
Supreme Court of the United States: Statement of Issues (PDF)
The Washington Post: FISA Needs to Balance Security and Liberty