Supreme Court will consider challenge to warrantless wiretapping law

The American Civil Liberties Union and other civil rights associations will be taking their case against a 2008 surveillance law to the Supreme Court. The Court has announced that it will consider whether the challenge to the FISA Amendments Act (FAA), which allows the National Security Agency to monitor citizens’ communications without a warrant, can go to trial. While the ACLU, PEN American Center, and other groups have long sought to overturn parts of the amendment, the Bush and Obama Administrations have argued that they cannot prove standing, a provision that requires parties involved in the case to face harm (or potential harm) from a law if they want to argue that it is unconstitutional.

Because wiretapping or email surveillance isn’t generally disclosed, the Obama Administration said, the ACLU’s clients couldn’t know that they were a target of the program. However, the federal Second Circuit Court of Appeals disagreed, allowing the case to proceed. Since the Administration appealed that decision as well, it’s now going to the Supreme Court, which will review whether the plaintiffs have standing. If they do, the stage will finally be set for a challenge to the law.

Although warrantless surveillance was performed before 2008, the FAA both codified provisions for it and implemented a controversial “retroactive immunity” section meant to protect telecommunications companies from civil lawsuits if they had helped the NSA perform wiretaps in the past. As of now, the law allows surveillance without a warrant if one of the people involved resides outside the United States and is suspected of a link to terrorism.