Supreme Court Dismisses Challenge to FISA Amendments Act; EFF’s Lawsuit Over NSA Warrantless Wiretapping Remains

By Cindy Cohn and Trevor Timm | EFF | February 27, 2013

Yesterday, the Supreme Court sadly dismissed the ACLU’s case, Clapper v. Amnesty International, which challenged the FISA Amendments Act (FAA)—the unconstitutional law that allows the government to wiretap Americans communcating with people overseas. Under the FAA, the government can conduct this surveillance without naming individuals and without a traditional probable cause warrant, as the Fourth Amendment requires.

The court didn’t address the constitutionality of the FAA itself, but instead ruled that the plaintiffs—a group of lawyers, journalists, and human rights advocates who regularly communicate with likely “targets” of FAA wiretapping—couldn’t prove the surveillance was “certainly impending,” so therefore didn’t have the “standing” necessary to sue. In other words, since the Americans did not have definitive proof that they were being surveilled under the FAA—a fact the government nearly always keeps secret—they cannot challenge the constitutionality of the statute.

EFF’s Warrantless Wiretapping Case, Jewel v. NSA, Is Not Affected by Clapper

It’s shameful that the courts again have cut off another avenue for accountability regarding the NSA’s warrantless and unconstitutional surveillance activities. But as disappointing as the Clapper decision is, the good news is the decision likely won’t adversely affect our Jewel v. NSA lawsuit, which we argued in district court in December of 2012. Indeed, the Clapper decision makes the Jewel case one of the last remaining hopes for a court ruling on the legality of the warrantless surveillance of Americans, now conducted for over a decade.

The Ninth Circuit has already ruled that the Jewel plaintiffs have standing under settled law. The court’s decision is based on solid ground because we have presented the court with evidence that dragnet warrantless surveillance has already occurred, through testimony and documents from AT&T and NSA whistleblowers. In fact, the court specifically differentiated the two cases in its Jewel opinion: “Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications.”

Clapper v. Amnesty’s Catch-22

Nonetheless, the Supreme Court’s requirement in Clapper that a future harm must be “certainly impending” to allow a case to go forward is very troubling, especially in the context of cases involving secret surveillance.

As Justice Stephen Breyer’s dissent points out, future conduct can never be predict anything with 100% certainty, and if certainty was a requirement for standing, then virtually no cases would ever reach conclusion. Justice Breyer runs through dozens of cases where standing has been found for plaintiffs in situations where plaintiffs had a reasonable fear of harm, and in many of those cases, the plaintiffs were much less certain than the lawyers, human rights workers and journalist in Clapper.

Breyer summed absurdity of the “certainly impending” standard by saying, “One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical).”

This standard is especially problematic when the harm is illegal surveillance conducted via secret government programs.  Unlike physical searches of the home, communications surveillance is by its nature hidden from the people affected, and national security surveillance is rarely made public or used in domestic criminal prosecutions. Thus, under the Supreme Court’s rule, regardless of whether its surveillance was legal or constitutional, the government can deny standing to a victim of illegal surveillance just by never revealing its illegal actions to the person affected. Essentially, one can’t challenge the government’s surveillance unless the government agrees.

Indeed, in arguing that its ruling does not mean that government surveillance under the FAA can never be reviewed by the courts, the Court could only point to situations in which the government intentionally revealed its surveillance.1

Allowing the Executive broad unfettered powers to “turn the Constitution on and off at will,” is exactly what the Supreme Court refused to do in Boumediene v. Bush, but what it appears to have allowed here.

It’s not even clear that the majority even understands the real scope of the FAA. In the opinion’s first sentence, Justice Alito refers to “individuals” that can be warrantlessly surveilled, but as we’ve explained many times, and the dissent notes, one of the most odious parts of the law is that it allows the government to get one court order for groups or categories of people—potentially thousands of people can be affected at a time.

The Shrinking Ranks of Warrantless Wiretapping Cases

This is the second ruling in the past year in which the government has convinced the court to dismiss challenges to the NSA warrantless wiretapping program on technical grounds, when there is ample evidence of wrongdoing. In 2012, the Ninth Circuit reluctantly dismissed the Al-Haramain case on “sovereign immunity” grounds despite a lower court ruling the government had violated the Fourth Amendment. The court reasoned that because of a glitch in the language of FISA statute, the plaintiffs had to sue individuals in the government in their personal capacities and couldn’t sue government agencies themselves or government officials in their official capacities.

We look forward to the district court in Jewel v. NSA determining that our case can move forward, and that the government can, once and for all, be held to account for the NSA’s unlawful and unconstitutional warrantless wiretapping program.

• 1. The court also noted that a provision of the FAA allows a service provider, presumably in a fit of patriotic fervor and a willingness to pay expensive attorneys for its customers, challenges the government on its own, in secret. Yet even under this provision, the victim of the surveillance is unable to seek judicial review.

Related article

• US Supreme Court refuses to let Americans challenge FISA eavesdropping law

In a Major Privacy Victory, Seattle Mayor Orders Police to Dismantle Its Drone Program After Protests

By Trevor Timm | EFF | February 8, 2013

In an amazing victory for privacy advocates and drone activists, yesterday, Seattle’s mayor ordered the city’s police agency to cease trying to use surveillance drones and dismantle its drone program. The police will return the two drones they previously purchased with a Department of Homeland Security grant to the manufacturer.

EFF has been warning of the privacy dangers surveillance drones pose to US citizens for more than a year now. In May of last year, we urged concerned citizens to take their complaints to their local governments, given Congress has been slow to act on any privacy legislation. The events of Seattle proves this strategy can work and should serve as a blueprint for local activism across the country.

Back in early 2012, the Seattle city council was told that the Seattle police agency had obtained an authorization to fly drones from the Federal Aviation Administration (FAA). But they did not find out from the police; they found out from a reporter who called after the council after he saw Seattle’s name on the list obtained by EFF as part of our lawsuit against the FAA.

City council was understandably not happy, and the police agency was forced to appear before the council and apologize. It then vowed to work with the ACLU of Washington and the FAA to develop guidelines to make sure drones wouldn’t violate Seattle citizens’ privacy. But as long as the guidelines weren’t passed in a binding city ordinance, there’d be no way to enforce them.

After a townhall meeting held by police, in which citizens showed up in droves and angrily denounced the city’s plans, some reporters insinuated that city counsel members’ jobs could be on the line if they did not pass strict drone legislation protecting its citizens privacy.

Documents obtained by MuckRock and EFF in October as part of our 2012 drone census showed that the Seattle police were trying to buy two more drones despite the controversy. But that ended yesterday as the Mayor put a stop to the program completely.

Critics of the privacy protests said the participants were exaggerating the capabilities of the Seattle drones, given they would only fly for less than an hour at a time and are much smaller than the Predator drones the military flies overseas and Department of Homeland Security flies at home.

But while Seattle’s potential drones may not have been able to stay in the air for long, similar drones have already been developed and advertised by drone manufacturers with the capability to stay in the air for hours or days at a time. In fact, Lockheed Martin has been bragging about a drone that weights 13.2 pounds (well within the FAA’s weight limits) that can be recharged by a laser on the ground and stay in the air indefinitely.

Since the Seattle protests have heated up, similar complaints have been heard at local city counsels and state legislatures across the country. At least thirteen states are now considering legislation to restrict drone use to protect privacy, and there are also members of Congress on both sides of the aisle pushing the same thing.

Here in the Bay Area, we’ve experienced a similar situation. The Alameda County Sheriff’s Office tried to sneak through drone funding without a public hearing and told the county board of supervisors it only wanted to use the drone for emergency purposes. Yet in internal documents obtained by EFF and MuckRock as part of our 2012 drone census, the Sheriff’s Office said it wanted to use the drone for “suspicious persons” and “large crowd control disturbances.”

When EFF and ACLU held a press conference pointing out this discrepancy, the county backtracked and is now attempting to write privacy guidelines that could potentially be turned into binding law. We will keep you updated on further developments.

But regardless, it’s important that privacy advocates take the lesson from Seattle and apply it all over the country. This is an important privacy victory, and like we said back in May, local governments will listen to our concerns, so let’s make our voice heard.

US: House to Vote on FISA Amendments Act Wednesday

By Michelle Richardson, ACLU Washington Legislative Office – September 10, 2012

It’s back. On Wednesday the House of Representatives is scheduled to vote on a five-year reauthorization of the FISA Amendments Act (FAA), the 2008 law that legalized the Bush administration’s warrantless wiretapping program and more. It permits the government to get year-long orders from the secret Foreign Intelligence Surveillance Act (FISA) court to conduct dragnet surveillance of Americans’ international communications—including phone calls, emails, and internet records—for the purpose of collecting foreign intelligence.  The orders need not specify who is going to be spied on or even allege that the targets did anything wrong.  The only guarantees that the FAA gives are that no specific American will be targeted for wiretapping and that some (classified) rules about the use of intercepted information will be followed.

After four years, you’d hope that some basic information or parameters of such a massive spying program would be divulged to the public, or at least your rank-and-file member of Congress, but they haven’t.  Only a small handful of members have either personally attended classified briefings or have staff with high enough clearances to attend for them.  Sen. Ron Wyden—who has been on the Senate Intelligence Committee for years—has even been stonewalled by the Obama administration for a year and a half in his attempts to learn basic information about the program, such as the number of Americans who have had their communications intercepted under the FAA.

Yet the House ambles on, ready to rubber stamp another five years of expansive surveillance that can pick up American communications without meaningful judicial oversight and without probable cause or any finding of wrongdoing.  Instead of blind faith in the executive branch, every member of the House should demand that the administration publicly disclose the following before proceeding with reauthorization:

•    Copies of FISA court opinions interpreting our Fourth Amendment rights under the FAA, with redactions to protect sensitive information (the Department of Justice can write summaries of law if necessary);

•    A rough estimate of how many Americans are surveilled under the FAA every year;

•    A description of the rules that govern how American information picked up by FAA surveillance is protected.

Can you believe that 435 members of Congress who have sworn to uphold the Constitution are about to vote on a sweeping intelligence gathering law without this basic information?

Act now to let them know that it’s time for Congress to fix FISA.

Related articles

• Testing “The Most Transparent Administration in History” (cato-at-liberty.org)
• NSA Surveillance Violated Constitution, Secret FISA Court Found (cato-at-liberty.org)

Drone surveillance: now in the US

RTAmerica | July 23, 2012 

The FAA has been adopting new rules to expand the use of small drones domestically, and by 2012 UAVs are expected to dominate the country’s airspace. Trevor Timm of the Electronic Frontier Foundation brings his take on whether Americans should worry about what law enforcement is doing.

Related articles

• EFF Obtains FAA Documents Detailing Domestic Drone Use (blacklistednews.com)
• Revealed: 64 Drone Bases on American Soil (wired.com)

Drones: The Nightmare Scenario

By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy and Technology Project | May 2, 2012

In our drones report, we discuss the coming onslaught of domestic drones and the weak state of the privacy laws that should protect us, and we outline our recommendations for protections that Congress and local governments should put in place.

But if nothing is done, how might things go? Let’s take a look at how police drone use could unfold:

1. The FAA’s new rules go into effect. Acting under orders from Congress, the FAA in coming months and years will significantly loosen the regulations that have been holding back broader deployment of drones. Starting later this year, for example, the FAA must allow any “government public safety agency” to operate any small drone (under 4.4 pounds) as long as certain conditions are met.

2. More and more police departments begin using them. The FAA’s new rules allow for the release of pent-up demand among police departments for cheap aerial surveillance. Ownership of drones quickly becomes common among departments large and small. Organizations are formed by police drone operators, who exchange tips and advice. We also begin to hear about their deployment by federal agencies, other than on the border.

3. We start to hear stories about how they’re being used. Most departments and agencies are relatively careful at first, and we begin to hear stories about drones being put to use in specific, mostly unobjectionable police operations such as raids, chases, and searches supported by warrants.

4. Drone use broadens. Fairly quickly, however, we begin to hear about a few departments deploying drones for broader, more general uses: drug surveillance, marches and rallies, and generalized monitoring of troubled neighborhoods.

5. Private use is banned. A terrorist like the pilot who crashed his plane into an IRS building in Texas uses an explosives-laden drone to try to attack a public facility. In response, the government clamps down on private use of the technology. The net result is that the government can use it for surveillance but individuals cannot use it to watch the government.

6. Drones become able to mutually coordinate. Multiple drones deployed over neighborhoods can be linked together, and communicate and coordinate with each other (see this video for an early taste of what that could look like). This allows a swarm of craft to form a single, distributed wide-area surveillance system such as that envisioned by the “Gorgon Stare” program.

7. The analytics gets better. At the same time, drones and the computers behind them become more intelligent and capable of analyzing the video feeds they are generating. They gain the ability to automatically track multiple vehicles and bodies as they move around a city or town, with different drones handing off the tracking to each other just as a mobile phone network passes a signal from one cell to another as a user rides down the highway.

8. Flight durations grow. Technology improvements (involving blimps, perhaps, or solar-power innovations) allow for drones to stay aloft for longer periods more cheaply, which becomes key in permitting their use for persistent surveillance.

9. The cycle accelerates. The advancing technology incentivizes agencies to buy even more drones, which in turn spurs more technology development, and the cycle becomes self-perpetuating.

10. Laws are further loosened. As drones get smarter and more reliable and very good at sensing and avoiding other aircraft, FAA restrictions are further loosened, permitting even autonomous flight.

11. Pervasive tracking becomes common. Despite opposition, a few police departments begin deploying drones 24/7 over certain areas. The media covers the controversy but Congress takes no action, and eventually it becomes old news, and the practice spreads until many or most American towns and cities are subject to the practice.

12. Technologies are combined. Drone video cameras and tracking analytics are combined or synched up with other technologies such as face recognition, gait recognition, license-plate scanners, and cell phone location data.

13. The data is mined. With individuals’ comings and goings routinely monitored, databases are able build up records of where people live, work, and play—what friends they visit, bars they drink at, doctors they visit, what houses of worship, or political events, or sexually oriented establishments they go to—and who else is at those places at the same time. Computers comb through this data looking for “suspicious patterns,” and when the algorithms kick up an alarm, the person involved becomes the subject of much more extensive surveillance.

Ultimately, such surveillance leads to an oppressive atmosphere where people learn to think twice about everything they do, knowing that it will be recorded, charted, scrutinized by increasingly intelligent computers, and possibly used to target them.

I’m not sure how realistic this scenario is. Perhaps it is far-fetched (I hope so). But the questions to ask are: which of the above steps is unlikely to take place, and why? And if we don’t end up in the situation described, how close will we get?

Related articles

• FAA approves spy drones to fly US skies (alethonews.wordpress.com)
• US: Congress Trying to Fast-Track Domestic Drone Use, Sideline Privacy (alethonews.wordpress.com)
• An Alabama Police Department Has No Idea Why It Owns Two Drones [Drones] (gizmodo.com)
• Drones invade campus (salon.com)
• FAA To Rule On Domestic Drone Guidelines By May 14 (inquisitr.com)

US: Congress Trying to Fast-Track Domestic Drone Use, Sideline Privacy

ACLU | February 6, 2012

Congress is poised to give final passage to legislation that would give a big boost to domestic unmanned aerial surveillance — aka “drones.”

As we explained in our recent report, drone technology is advancing by leaps and bounds, and there is a lot of pent-up demand for them within the law enforcement community. But, domestic deployment of unmanned aircraft for surveillance purposes has largely been blocked so far by the Federal Aviation Administration (FAA), which is rightly concerned about the safety effects of filling our skies with flying robots (which crash significantly more often than manned aircraft).

As we also explained in our report, the FAA is under pressure to loosen the reins and permit broader deployment of drones by government agencies.

One result of that pressure is this legislation (H.R. 658 — see conference report for more details), which authorizes appropriations for the FAA through fiscal 2014. Unfortunately, nothing in the bill would address the very serious privacy issues raised by drone aircraft. This bill would push the nation willy-nilly toward an era of aerial surveillance without any steps to protect the traditional privacy that Americans have always enjoyed and expected.

Congress — and to the extent possible, the FAA — need to impose some rules (such as those we proposed in our report) to protect Americans’ privacy from the inevitable invasions that this technology will otherwise lead to. We don’t want to wonder, every time we step out our front door, whether some eye in the sky is watching our every move.

On Friday, the House gave final passage to the legislation. House approval came on a quite partisan vote, with most Republicans in favor and most Democrats opposing. The Senate is scheduled to take up the bill later today.

Here are details on what the bill would do in terms of drones:

• Require the FAA to simplify and speed up the process by which it issues permission to government agencies to operate drones. It must do this within 90 days. The FAA has already been working on a set of proposed regulations to loosen the rules around drones, reportedly set for release in the spring of 2012.
• Require the FAA to allow “a government public safety agency” to operate any drone weighing 4.4 pounds or less as long as certain conditions are met (within line of sight, during the day, below 400 feet in altitude, and only in safe categories of airspace).
• Require the FAA to establish a pilot project within six months to create six test zones for integrating drones “into the national airspace system.”
• Require the FAA to create a comprehensive plan “to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.” “Civil” drones means those operated by the private sector; currently it is all but impossible for any non-government entity, except for hobbyists, to get permission to fly drones (for-profit use of drones is banned). Industry groups and their congressional supporters see this as a potential area for growth. Congress specifies that the plan must provide for the integration of drones into the national airspace system “as soon as practicable, but not later than September 30, 2015.” The FAA has nine months to create the plan. The FAA is also required to create a “5-year roadmap for the introduction” of civil drones into the national airspace.
• Require the FAA to publish a final rule within 18 months after the comprehensive plan is submitted, “that will allow” civil operation of small (under 55 pounds) drones in the national airspace, and a proposed rule for carrying out the comprehensive plan.

The bottom line is: domestic drones are potentially extremely powerful surveillance tools, and that power — like all government power — needs to be subject to checks and balances. We hope that Congress will carefully consider the privacy implications that this technology can lead to.