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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?