More on Standing As a Barrier to Surveillance Challenges: Bug or Feature?

As I explained in my last post, American constitutional law requires that plaintiffs show they have been the subject of surveillance in order to establish standing to challenge intelligence programs in court. The intelligence community sees a narrow standing requirement of Article III as a feature of the United States Constitution. Human rights lawyers regard it as a bug.

In Schrems v. Data Protection Commissioner, the Court of Justice of the European Union insisted on “effective judicial protection” for EU citizens whose data might be accessed by the NSA. Clapper v. Amnesty International seems to foreclose most challenges to NSA surveillance for lack of Article III standing. However, the right plaintiff would have a better chance at having a claim heard on the merits today than some in the national security community may think, at least if Congress chose to create a remedy for unlawful surveillance that applies to foreigners.

In Clapper, Justice Alito pointed to a “highly attenuated chain of possibilities” to describe why the plaintiffs could not show concrete injury from section 702 of the Foreign Intelligence Surveillance Act. To show standing, plaintiffs had to assume that:

(1) the Government will decide to target the communications of non-U. S. persons with whom they communicate;

(2) in doing so, the Gov­ernment will choose to invoke its authority under [FISA section 702] rather than utilizing another method of surveillance;

(3) the Article III judges who serve on the Foreign Intelli­gence Surveillance Court will conclude that the Govern­ment’s proposed surveillance procedures satisfy [section 702]’s many safeguards and are consistent with the Fourth Amendment;

(4) the Government will succeed in intercepting the communications of respondents’ contacts; and

(5) respondents will be parties to the particular communi­cations that the Government intercepts.

Clapper was decided in early 2013, when Edward Snowden was still an anonymous NSA contractor living in Hawaii. The Snowden revelations and the intelligence community’s own transparency drive have undermined much of what the Supreme Court said to reject standing in that case. Today, the chain of possibilities described by Justice Alito has gotten a whole lot less speculative.

First, a foreign citizen may actually have an easier time establishing standing than the American plaintiffs did in Clapper. Foreigners’ communications can be targeted directly under section 702 of FISA, making their fears of surveillance less speculative. That breaks the first link in the chain described by Justice Alito.

Second, the government has confirmed that it has obtained orders for surveillance of foreign citizens under section 702, and has declassified details of two NSA programs – PRISM and upstream collection. These descriptions make clear that the NSA’s interception has been successful and the programs have collected a very broad set of international communications. Second link broken.

Next, the plaintiffs in Clapper, the Supreme Court observed, “have no actual knowledge of the government’s [section 702] targeting practices.” Now they do. True, the precise selectors that the government uses – such as telephone numbers and e-mail addresses – remain secret. But the NSA’s scanning of Internet traffic and its relationship with American ISPs are a matter of record. Third link broken.

With these facts in mind, consider a foreign scientist working on nuclear proliferation issues involving Iran using an ISP whose servers are located in the United States. Given all that the government has confirmed about the NSA’s activities, it is more difficult to describe such a scientist’s fears of surveillance as “attenuated.”

Clapper would still pose obstacles in any challenge the scientist might bring. The scientist does not know whether her e-mail address is actually on the NSA’s target list. She might be targeted under different legal authority. The NSA might access her data abroad, where looser rules prevail. These uncertainties should not remain an absolute bar to deciding such a case on the merits, if Congress chooses to provide her with a remedy for unlawful surveillance.

Further undermining Clapper, the Supreme Court accepted a government argument that has since been discredited. At oral argument, Solicitor General Donald Verrilli said that a failure to find standing would not insulate surveillance under section 702 of FISA from judicial review entirely. The government would be required to disclose such surveillance in any future criminal prosecution, Verrilli assured the justices, where a defendant would be able to challenge evidence that had been derived from it.

In fact, after the case was decided, Verrilli was embarrassed to learn that the Justice Department had not been disclosing its use of section 702 surveillance to obtain evidence in criminal cases, which led to a change in Justice Department policy. Jameel Jaffer of the American Civil Liberties Union – Verrilli’s opposing counsel in Clapper – was right to cry foul. Verrilli’s argument was not actually decisive in Clapper, but it was still embraced in Justice Alito’s opinion. Its awkward demise further highlights how an overly cramped view of Article III standing shields intelligence agencies from having to defend surveillance programs on the merits.

Standing would not be the only obstacle to a foreign citizen who wanted to make a viable claim that NSA surveillance is unlawful. Winning such a case on the merits would be a long shot. Foreigners outside the United States lack Fourth Amendment rights. See United States v. Verdugo-Urquidez. The United States has longstanding objections to applying human rights treaties to its conduct abroad. Congress would have to create some sort of remedy for unlawful surveillance that applied to EU or other foreign citizens, or it is hard to see how our scientist could state any viable claim.

Still, Clapper opened a wide gulf between what international human rights law provides – a broad right to challenge surveillance – and the Supreme Court’s narrow understanding of standing. Developments since Clapper provide an opportunity to fix the bug that Justice Alito wrote into Article III.