Wiretapping right to sue

In what a New York Times editorial this morning referred to as "a decision that might lead to a significant — and far too long delayed — legal review of federal statute," the United States Second Circuit Court of Appeals this past Monday reinstated a lawsuit by civil liberties and journalism groups challenging government eavesdropping law, that the district court had found against two years ago because of a lack of standing.

The Circuit Court, Monday, noted that "the only issue presented by this appeal is whether the plaintiffs are legally in a position to assert these claims in federal court, not whether the claims are to any degree valid. Their merit is an issue for another court on another day… Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs establish that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing."

At issue in the case, plaintiffs posit "a challenge to the constitutionality of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801, et seq. ("FISA"), as amended by H.R. 6304, the FISA Amendments Act of2008 ("FISA Amendments Act," "FAA," or "Act"), which the President signed into law on July 10, 2008. As amended, FISA allows the executive branch sweeping and virtually unregulated authority to monitor the international communications - and in some cases the purely domestic communications – of law abiding U.S. citizens and residents. The amended law (the "challenged law") eviscerates the "[c]lear legal standards and effective oversight and controls" that the Senate Church Committee concluded in 1978 were necessary to ensure that government surveillance did "not itself undermine the democratic system it [was] intended to protect."


District Court holding
Original complaint