The Foreign Intelligence Surveillance Act, or FISA, passed in 1978, allows the government to monitor conversations of foreign spies and terrorist suspects abroad for intelligence purposes. The 2008 FISA amendments allow the government to obtain from a secret court broad, yearlong intercept orders, raising the prospect that phone calls and emails between those foreign targets and innocent Americans in this country will be swept in.
While the law is aimed at foreigners, Jameel Jaffer, who represented a group of lawyers, journalists and organizations, argued in front of the court that Americans who think they are getting caught up in the government monitoring should be allowed to sue to stop the law's expansion in 2008.
Jaffer said his colleagues are already taking costly measures like flying overseas to talk to people instead of using telephones and emails to keep their conversations private.
Chief Justice John Roberts noted that the court in the past said injuries have to have occurred or be "certainly impending" for people to have standing to sue. "It's not enough, of course, to know that the government is using the statute," Roberts said. "The whole question is whether or not your clients have been injured, not whether the statute's being used."
"Our plaintiffs have reasons to believe that their own communications will be monitored under the statute," Jaffer said. "One relates to the kind of information that they routinely exchange over the phone and by email: foreign intelligence information. But it's also that plaintiffs communicate with the kinds of people the government is likely to monitor under the statute."
A federal judge threw out the lawsuit saying the plaintiffs lacked standing to sue, but the 2nd U.S. Circuit Court of Appeals reinstated the lawsuit. The court is not considering the constitutionality of the expansion, only whether lawyers can even file a lawsuit to challenge it in federal court.
Solicitor General Donald Verrilli said opponents shouldn't be allowed to sue because they have no proof that their conversations will be listened to by the U.S. government, and no one is making them change the way they do business. "I think you do not have a concrete application of this authority against anyone, and therefore you cannot meet the basic Article III requirement of standing," Verrilli said.
Verrilli insisted that the opponents' claims were a "cascade of speculation" about whether the government was going to use its surveillance powers.
"You are saying that the government has obtained this extraordinarily wide-reaching power, and we have extraordinary risks that face this country and the government's not going to use it? It's hard for me to think that the government isn't using all of the powers at its command under the law in order to protect this country," said Justice Anthony Kennedy, often considered a crucial vote on the court.
"I'm not saying that at all, Justice Kennedy," Verrilli said. "But it remains the case that in order for there to be an Article III case or controversy, a concrete application of that authority has to be demonstrated, and it hasn't been under the theory of the plaintiffs' case."
The court's four liberal justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — peppered Verrilli with questions over whether anyone would able to sue over the FISA expansion, considering that the people targeted for the wiretapping are foreigners and the Americans caught up in the wiretapping will never know that their overseas conversations are being listened to because the information is being collected for intelligence purposes, not prosecution.
The lawyers have to say to themselves, "because of that significant risk, we have to take precautions," Kagan said.
"I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute," added Kennedy.
"And I think it would be the ethics rule that caused the lawyer to take those steps, not the statute," Verrilli replied.
"But it's still the reality. He still has to change his conduct," Kennedy said.
The justices will make a decision next year.