Don’t let surveillance evade judicial scrutiny

What do Americans do when they think the government is violating their rights? They go to court, of course!  But on the issue of mass surveillance, it’s very hard to get through the courthouse door.  Before you can argue your claim, you must show your problem is not hypothetical — that you’ve likely suffered some harm.   Surveillance, however, is usually surreptitious, and the government isn’t saying whose emails, phone calls and messages it is collecting.  

The U.S. government asked the district court in Alexandria on Friday morning to throw out a challenge to mass surveillance by Human Rights Watch, Wikimedia and other plaintiffs.  It said it isn’t “plausible” that the NSA specifically spied on us—even though it captured nearly all Americans’ international electronic communications in the warrantless mass “Upstream” surveillance program performed under section 702 of the FISA Amendments Act.  

{mosads}The legal doctrine that keeps plaintiffs off a court’s busy docket if they can’t show a substantial likelihood of harm— called “standing”–makes sense in many situations. You get better decisions when there are real facts, and the litigants have a real stake in the issue. But when it comes to secret surveillance, those whose communications are captured will often not know or be able to confirm it; and that’s the Catch 22. 

In 2013, the Supreme Court bought a similar argument in a different case, saying our claims were too “speculative” when we complained that the government was intercepting our international communications in the course of acquiring “foreign intelligence information” under the same law. But the world looks a lot different now.  

That decision came out right before the massive scope of NSA surveillance was disclosed, first by Snowden, later by our government.  We’ve learned that “Upstream” surveillance affects almost everyone in the US who communicates electronically with someone overseas, or who browses websites that happen to be hosted abroad.  The government intercepts these communications as they transit the cables making up the Internet “backbone” and searches them for tens of thousands of target terms associated with potentially any type of “foreign intelligence information,” all without suspicion of wrongdoing or a warrant.

And we actually have some reason to believe that the NSA is particularly interested in our communications as human rights advocates. Edward Snowden, responding in April 2014 to a question whether US and UK spy agencies were surveilling human rights groups like Amnesty International and Human Rights Watch, answered, “Without question, yes, absolutely …The NSA has in fact specifically targeted the communications of either leaders or staff members in a number of purely civil or human rights organizations of the kind described.” No one in either government has denied this; in fact, Amnesty International received confirmation this July that their communications were intercepted by the UK government. 

Not only is it “plausible” we’ve been spied on, the harm of mass surveillance, is not “speculative” in the least.  The people we talk to are often in real peril; their safety and lives may depend on confidentiality. When government interception makes our sources, clients and partners too nervous to email, text or call us, we can’t do our work effectively.  As we’ve reported, mass surveillance makes it harder for people to get the facts on sensitive issues or vindicate their rights. In the end, it’s our democratic society that suffers the most, from constrained information and poorer protection of rights. 

In the wake of the Snowden revelations, the president, the Congress, and various executive bodies have all participated in a national discussion of reform. We’ve learned more, and the law has even shifted a tiny bit.  That doesn’t change the fact that mass surveillance continues under various laws and orders much as it did before.   

It’s high time for the courts to grapple with whether this practice violates Constitutional rights. Surveillance in a democratic society shouldn’t be a practice of questionable legality, evading judicial review.

PoKempner is the Human Rights Watch general counsel.