ACLU v. NSA, round Two

Those who have followed the Grey Area know that the goings on with FISA have been an oft covered topic on these pages, especially since my paper on the War Powers was published by the Valparaiso Law Review in June of 2007. The District Court Decision may be found here (.pdf).

Recently, the 6th Circuit Court of Appeals rendered their decision on appeal from the decision of the Eastern District of Michigan. The decision may be found Here (.pdf).

For those looking for the quick answer, the 65 page decision came down to the ACLU's lack of standing. Specifically:

Because there is no evidence that any plaintiff’s communications have ever been
intercepted, and the state secrets privilege prevents discovery of such evidence, see Reynolds, 345
U.S. at 10, there is no proof that interception would be detrimental to the plaintiffs’ contacts, and
the anticipated harm is neither imminent nor concrete — it is hypothetical, conjectural, or
speculative. Therefore, this harm cannot satisfy the “injury in fact” requirement of standing.

Court's Opinion, Pg. 8.

Fundamentally, the Court's majority decision centers around the fact that the Plaintiffs failed to show that they were harmed by the NSA program. In fact, the decision goes a long way to determine that the Plaintiffs went out of their way to avoid the particular harm, and that even if the harm occurred, the Plaintiffs are barred from demonstrating that harm because the NSA invoked the State's Secrets Privilege. In a rather matter-of-fact manner, the majority states that this is merely "a subjective apprehension and a personal (self-imposed) unwillingness to communicate." Here the Court determines that the injury is not sufficiently acute to activate standing because there hasn't been a demonstration of specific harm. Instead, the alleged injury is nothing more than a subjective apprehension, which lead the plaintiffs not to act out of their own fear. This analysis lead the Majority to determine that the harm was not sufficient to permit standing in the case under the Supreme Court's decision in Laird v. Tatum, 408 U.S. 1 (1972).

The most abominable conclusion reached by the Court, however, is the notion that the actions of the NSA do not amount to Electronic Surveillance under the Foreign Intelligence Surveillance Act (FISA). The Court couches its conclusion in the definition of Electronic Surveillance in FISA. For the record, Electronic Surveillance is defined as:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

50 U.S.C. 1801(f)(1)-(4) (obtained from here). I don't think it takes much technical expertise to figure out that placing a wire tap on a telephone line uses an electronic device to obtain information transmitted over the "wires" considering all electronic information must move through a form of infrastructure, much of which is composed of either copper wire or fiber optic cable.
To say that intercepting emails using a computer does not constitute electronic surveillance goes beyond ordinary ignorance, and strays into legal absurdity. What's worse is the majority opinion fails to explain how, exactly, the TSP does not constitute electronic surveillance demonstrate that the point is untenable.

The Majority makes on basic point; that, clearly, as alleged, the Plaintiffs failed to adequately plead sufficient injury to bring a constitutional challenge to the TSP. This, however, throws another issue into sharp relief. The reason why the plaintiffs failed to proffer evidence demonstrating actual harm due to their inability to obtain information because of the state's secret privilege. This issue was not raised on appeal, and may be a point of contention for later opinions. A direct analysis isn't appropriate here.

The dissent raises the most tenable arguments on the issues presented. As such, it is worth a read. At the very least, this case likely has merit to progress to a review en banc by the 6th Circuit. In the even that this fails, there is still the possibility that the Supreme Court would take the case. However, this new majority leaves only a dubious possibility that the Court will affirm the decision of the Eastern District of Michigan.

At the very least, this decision sets the stage for a confrontation over the application of the state's secrets privilege in matters that directly and detrimentally impact civil liberties interests, something that few courts have directly confronted, and is beginning to ripen into an important issue.