- By Ty McCormickTy McCormick is an associate editor at Foreign Policy. Previously he was a freelance correspondent in Egypt, where he wrote about everything from military trials to revolutionary rap music. A 2011 Pulitzer Center grantee, he has written for Newsweek, the New Republic, the International Herald Tribune, and the Los Angeles Times, among others. He has also appeared as a commentator on Fox News and American Public Media’s Marketplace Tech. He holds a bachelor’s degree from Stanford University and a master’s from the University of Oxford, where he was a Clarendon scholar.
Edward Snowden, the 29-year-old NSA contractor behind the PRISM leak, broke his long silence last week because he wanted Americans to know just how completely their privacy has been eviscerated in the name of security. "My sole motive is to inform the public as to that which is done in their name and that which is done against them," he told the Guardian in an interview. "I will be satisfied if the federation of secret law, unequal pardon, and irresistible executive powers that rule the world that I love are revealed even for an instant."
But by detailing the mammoth electronic surveillance program that, as he told the Washington Post, "quite literally" allows the NSA to "watch your ideas form as you type," Snowden also hoped to make possible a legal challenge to the surveillance state — one that had previously been hampered by the thorny question of standing. In that, however, Snowden may ultimately come up short.
On Feb. 26, the Supreme Court ruled in Clapper v. Amnesty International USA that Americans lacked standing to challenge an amendment to the Foreign Intelligence Surveillance Act that authorized electronic surveillance of non-U.S. citizens abroad — but which inevitably resulted in the surveillance of persons inside the United States — because, in essence, the snooping was classified and therefore couldn’t be proven to exist. As Justice Samuel Alito wrote in the majority opinion, "respondents fail to offer any evidence that their communications have been monitored" under the expanded version of FISA. Theirs, according to Alito, was a "highly speculative fear."
The decision split the court 5 to 4, with Justice Stephen Breyer, joined by the remainder of the court’s liberal wing, dissenting. In Breyer’s view, the standard adopted by the majority — that the harm to respondents (being snooped on) must be "certainly impending" — "is not, and never has been, the touchstone of standing." And even if it was, he writes, "this harm is not ‘speculative.’ Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen."
Snowden’s revelations would seem to remove all doubt that Americans have been swept up in the NSA’s colossal dragnet. Even if we accept the vigorous protestations of both the Obama administration and the tech companies allegedly participating in PRISM, the surveillance program has at least been partially declassified and acknowledged to impact at least some unsuspecting citizens.
According to the fact sheet released by Director of National Intelligence James Clapper, the relevant provisions of FISA contain "minimization procedures" that "govern how the Intelligence Community (IC) treats the information concerning any U.S. persons whose communications might be incidentally intercepted and regulate the handling of any nonpublic information concerning U.S. persons that is acquired, including whether information concerning a U.S. person can be disseminated."
"Significantly," the fact sheet continues, "the dissemination of information about U.S. persons is expressly prohibited unless it is necessary to understand foreign intelligence or assess its importance, is evidence of a crime, or indicates a threat of death or serious bodily harm." In other words, the government can, without an individual warrant, disseminate intelligence "incidentally" intercepted about American citizens living within U.S. borders so long as that intelligence implicates them in a crime, informs foreign intelligence, or represents a serious threat.
Yet despite such revelations, future plaintiffs seeking to challenge the NSA’s surveillance program on First or Fourth Amendment grounds will still likely run up against the problem of standing, according to legal experts. As Lyle Denniston, a legal journalist and constitutional advisor to the National Constitution Center in Philadelphia, told FP in an email: "The near-universality of the surveillance here does not count as evidence of who was monitored, in a factual sense. These new revelations are not sufficiently different from the program at issue in the Clapper decision, so that decision very likely dooms any challenge."
"The Clapper decision rules out any reliance upon probability of being overheard, so it is difficult, given the secrecy of the program, to imagine that anyone can show they actually were monitored," writes Denniston.
Stephen Vladeck, a law professor and the dean for scholarship at American University, had a similar take: "I don’t think that the PRISM leaks will directly bear on the standing issue identified by the Supreme Court in Clapper, because even with what is now publicly known about the program, individual plaintiffs will still have the same problem — proving that their communications, in particular, have been, or will be, intercepted," he wrote in an email.
Still, Vladeck cautions, judges "don’t live in a vacuum." Even if individual plaintiffs will still face an uphill battle, "courts going forward may not be nearly as skeptical of the possibility that this kind of systematic interception of communications is really going on." At the same time, he writes, the revelations "certainly makes it that much harder … to buy into Justice Alito’s rather rose-colored vision of the scope of governmental surveillance."
While Snowden’s big leaks may not turn the legal tables on the NSA, we can be virtually certain that they will be at the center of future lawsuits seeking to rein in the surveillance state. Already, Larry Klayman, a former Justice Department prosecutor and the founder of Judicial Watch, has expanded his lawsuit against the Obama administration to cover the NSA’s monitoring of Verizon call logs, disclosed by the Guardian last week. It’s only a matter of time before PRISM is at the heart of a similar suit.