NSA3.jpgIn ACLU v. NSA, –F.3d — (6th Cir. 2007), a panel from the 6th Circuit held that the ACLU and other plaintiffs lacked standing to challenge the Bush Administration’s warrantless wiretapping program conducted by the National Security Agency (NSA). NYT coverage is here. According to the sketchy details known about the program, the court noted, “it has been publicly acknowledged that the TSP [the Terrorist Surveillance Program, as it has now been named by the Administration] includes the interception (i.e., wiretapping), without warrants, of telephone and email communications, where one party to the communication is located outside the United States and the NSA has ‘a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.”

The plaintiffs are “journalists, academics, and lawyers who regularly communicate with individuals located overseas, who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP.” The plaintiffs claimed that the NSA wiretapping violated, among other things, the First Amendment, Fourth Amendment, and the Foreign Intelligence Surveillance Act (FISA).

According to Judge Batchelder’s opinion, the plaintiffs could not establish standing because they could not directly prove that they were subject to surveillance. One of the problems with the court’s reasoning is that there is little way for the plaintiffs to find out more specific information about whether particular plaintiffs’ phone calls have been wiretapped. As a result, the government can violate the plaintiffs’ First and Fourth Amendment rights with impunity if they cannot ever learn enough to gain standing to challenge the surveillance.

In a recent article, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112 (2007), I examined the nature of the injury to First Amendment activities from government surveillance. I wrote:

Determining the existence of a chilling effect is complicated by the difficulty of defining and identifying deterrence. It is hard to measure the deterrence caused by a chilling effect because it is impossible to determine with certainty what people would have said or done in the absence of the government activity. Often, the primary evidence will be a person’s own assertions that she was chilled, but merely accepting such assertions at face value would allow anyone claiming a chilling effect to establish one. At the same time, demanding empirical evidence of deterrence is impractical because it will often be impossible to produce.

In other words, the chilling effect doctrine is a mess. By requiring too much specific proof of deterrence, courts can effectively make it impossible for any plaintiff to establish a chilling effect. In my article, I attempted to use First Amendment doctrines to help illuminate a more meaningful approach toward analyzing the existence of a chilling effect:

In many instances, the government engages in broad information gathering that is not directly tied to a concrete penalty or consequence, but which still may chill speech. For example, people might fear that if the government learns about their speech or associations, they will wind up on a terrorist watch list. However, they might never know if they are in fact on a watch list, and the consequences of being placed on such a list might be unclear. Being placed on a watch list might result in extra airline screening, or it might have no impact on the individual at all. Or the information could go into a government database for some unknown future use when the time is ripe.

These uses are speculative, and they present a difficult case for chilling effect analysis. Courts might conclude that people should wait to see how the information is used; if the government uses their information against them, defendants would then be able to allege a cognizable chilling effect. However, this ignores the central premise of the chilling effect doctrine—that many will not be willing to accept the risk and will instead simply change their behavior. Therefore, even if the information is never used at trial, uncertainty about the government’s intentions may still deter First Amendment activities. The government might argue that it must keep secret the uses of the information it gathers, but this only exacerbates the problem—lack of transparency makes it especially difficult for individuals to allege a sufficiently concrete chilling effect. By collecting data and obscuring its potential uses, the government can effectively limit people’s ability to assert their First Amendment rights by making it impossible for them to establish a sufficient chill.

The First Amendment concept of overbreadth might provide a solution to the problems presented by situations involving such large-scale information gathering programs. According to the Supreme Court, “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” Overbreadth doctrine relaxes the normal standing rules to allow people to bring suit without having to show that the law is unconstitutional as applied to them. To challenge a statute as overbroad, an individual need only show that some application of the law is unconstitutional and might chill the speech of parties not before the court. For a statute “to be facially challenged on overbreadth grounds” there “must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” . . . .

We can adapt overbreadth doctrine to address the problem of proving a chilling effect when the government engages in large-scale information gathering initiatives. In this context, litigants could challenge an information gathering program as overbroad, regardless of whether they could prove that they personally suffered a concrete chilling effect. Instead, courts would determine whether the government program sweeps so broadly that it captures a substantial amount of First Amendment activity. A program that sweeps in a great deal of First Amendment activity will be deemed unconstitutionally overbroad if not narrowly tailored to a substantial government interest. Allowing such challenges will have the secondary benefit of bringing greater transparency to information gathering programs, as the government will be forced to justify its activities and the breadth of their scope.

Judge Batchelder relied extensively on Laird v. Tatum, 408 U.S. 1 (1972), a Supreme Court case involving government surveillance of public demonstrations. The Court concluded that the plaintiffs failed to establish a cognizable First Amendment injury because “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”

As I wrote in my article:

Laird was not especially clear about when government surveillance (and information gathering practices more generally) will cause a cognizable First Amendment injury. Indeed, one view of Laird interprets it as a very narrow, fact-specific holding based on the plaintiffs’ highly tenuous First Amendment injury. The Court concluded that the plaintiffs merely articulated “speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to respondents.” In other words, Laird might be read to state only that naked allegations of “speculative apprehensiveness” are insufficient to establish a cognizable chilling effect.

The wiretapping involved in the NSA surveillance program differs substantially from the surveillance in Laird. The Laird surveillance involved activities in public places. In contrast, the surveillance in the NSA program involved wiretapping private conversations, a substantially more invasive form of surveillance. Indeed, wiretapping has long been recognized as one of the most intrusive and problematic forms of government surveillance. In Laird, the Court relied on the fact that “[t]here is no evidence of illegal or unlawful surveillance activities.” That’s not the case with the NSA program, which involved illegal warrantless wiretapping. Laird is thus readily distinguishable.

Moreover, Judge Batchelder also concluded that it was unclear whether the potential chilling effect of the surveillance on the plaintiff’s freedom of speech “can fairly be traced to the absence of a warrant, or if the chill would still exist without regard to the presence or absence of a warrant.” She continued:

The insufficiency of this step leads to a breakdown in the causal pathway [between the surveillance and the chilling effect injury]. . . . A wiretap is always ‘secret’ — that is its very purpose — and because of this secrecy, neither the plaintiffs nor their oversees contacts would know, with our without a warrant, whether their communications were being tapped. Therefore, the NSA’s secret possession of a warrant would have no more effect on the subjective willingness or unwillingness of these parties to “freely engage in conversations and correspond via email.”

One of the difficulties with this line of reasoning is that it runs contrary to the very rationale behind warrants. Judge Batchelder seems to be suggesting that obtaining a warrant has no impact on whether people are chilled in their expression. But according to the rationale behind the warrant requirement, it is the process of the government having to justify its searches before the judiciary that gives us the assurance that we can exercise our freedoms without the fear of improper government surveillance. Under our system of regulation of government searches, we cannot expect complete immunity from being subjected to a government search; but we can expect that we will not be searched contrary to established constitutional and legal procedures. If the court is right and warrants have no effect, then there would be no injury to a person if the government searched without a warrant so long as the person wasn’t aware of the specific search. But the very point of procedural regulation of government searches is to give people the assurance that they will not be searched without oversight and justification. It is the destruction of this assurance that constitutes the injury. There is a big difference between a system of highly regulated surveillance subject to oversight and limitation and a system of unregulated surveillance without oversight or limit beyond the whims of the executive branch. One might be significantly more chilled in speaking under the latter regime than under the former.

Another issue in the case involved whether the plaintiffs had a claim under FISA. I will address this part of the court’s decision in another post.

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3 Responses

  1. Andy says:

    Interesting post.

    As a general matter, I think it is worth pointing out that a similar standing issue exists within the FISA framework itself. That is, individuals cannot challenge the legality of FISA surveillance they do not know about. As I’ve described here, The Notice Problem, Unlawful Electronic Surveillance, and Civil Liability Under the Foreign Intelligence Surveillance Act, 61 U. Miami L. Rev. 393 (2007), individuals subject to mistaken or unlawful FISA surveillance will almost never be alerted to this fact. So hypothetically, even if the NSA program is declared invalid and FISA is fully restored, a similar version of the standing/notice problem would remain.

    I think your last point – that the government’s failure to obtain secret warrants does in fact contribute to chilled expression – is quite right. It is worth noting an irony in this respect: the opposing view, articulated by Judge Batchelder (in favor of the government), is at odds with the government’s outcry against the NY Times disclosure of the existence of the NSA program. This is so because the outcry was premised on the view that revealing the existence of the program would aid the terrorists, and this would only occur if the terrorists altered their behavior upon learning that the government could now monitor them without a FISA warrant.

  2. Alan says:

    Get a secure (encrypted) phone and be done with it. What reasonable person would rely on the government or the courts to protect their privacy in the first place?

  3. I cannot think of a better example of a Catch-22 ruling than this court ruling. If a surveillance program is secret, then by logical inference nobody can find out about it, therefore they can never prove that they were impacted by it. Therefore NOBODY has standing to challenge the program, making it truly above the law.

    If this is not meet the definition for an abuse of power, what does?