VICTORY! Court Says Plaintiffs Can Challenge Bush Wiretapping Law

By Rachel Myers
ACLU National Office

In a huge victory for privacy and the rule of law, a federal appeals court today reinstated our landmark lawsuit challenging the FISA Amendments Act (FAA), a statute that gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls.

The ACLU filed the lawsuit on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States.

A federal district court dismissed the case in August 2009, ruling that the plaintiffs did not have the right to challenge the new surveillance law because they could not prove that their own communications had been monitored under it.

But with the support of law professors, the NYC Bar Association, the Reporters' Committee for Freedom of the Press and many others, we appealed that decision to the Second Circuit Court of Appeals.

Today, the appeals court reversed the lower court decision, finding that the plaintiffs have standing to challenge the law even though they cannot show to a certainty that the government is acquiring their communications. According to today's ruling, "the FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored. Either way, the FAA directly affects them."

In a statement today, ACLU Deputy Legal Director Jameel Jaffer said:

The government's surveillance practices should not be immune from judicial review, and this decision ensures that they won't be. The law we've challenged permits the government to conduct dragnet surveillance of Americans' international communications, and it has none of the safeguards that the Constitution requires. Now that the appeals court has recognized that our clients have the right to challenge the law, we look forward to pressing that challenge in the trial court.