Jameel Jaffer (2015)

Here's a partial answer to this question for the Americans out there: a few provisions of the USA Patriot Act are scheduled to sunset in June. Congress has to consider, between now and then, whether to reauthorize the provisions, amend them, or let them expire. You should make sure your representatives in Congress know that you want some commonsense limits to be imposed on the NSA's surveillance activities.

Also, perhaps refer them to this Human Rights Watch / ACLU report, which documents the way that government surveillance is already inhibiting journalism that's crucial to open societies. http://www.hrw.org/reports/2014/07/28/liberty-monitor-all-0

Just to add a couple more points, I think there's broad agreement that the government has a legitimate interest in monitoring the communications of suspected terrorists. This kind of dragnet surveillance, though, constitutes a gross invasion of the privacy of innocent people, and it will inevitably have a chilling effect on the freedoms of speech and inquiry. (There is some evidence that the NSA’s surveillance activities are already having this effect.) We don’t think the NSA should be looking over innocent people’s shoulders when they’re surfing the web. I should emphasize that the NSA’s practice is to retain communications that include “foreign-intelligence information,” a term that is defined so broadly as to include, for example, any information relating to the foreign affairs of the United States. No one should be under the misimpression that the NSA is interested in collecting information about terrorism and nothing else. Former NSA director Michael Hayden has been forthcoming about this. He said recently: “NSA doesn't just listen to bad people. NSA listens to interesting people. People who are communicating information.” We would like the NSA's surveillance activities to be more narrowly focused on individuals who are actually and reasonably thought to present threats.

I provided a more technical answer to the "standing" question in response to another questioner. Cutting and pasting:

This is a good question. As you probably know, in Clapper v. Amnesty, the U.S. Supreme Court held, in a 5-4 vote, that the ACLU’s plaintiffs in that case lacked standing to challenge the constitutionality of the 2008 FISA Amendments Act—the same statute the government now invokes to justify the NSA’s “upstream” surveillance. The Court reasoned that the plaintiffs didn’t have the right to challenge the statute because they couldn’t show a sufficient likelihood that their communications were being monitored. The plaintiffs couldn’t make that showing, of course, because the government refused to disclose, even in the most general terms, how the statute was being used.

I think Clapper v. Amnesty was wrongly decided (I argued the case, so this shouldn’t be surprising), but more importantly, I don’t think Clapper v. Amnesty forecloses our new case. I say this for a few reasons. First, thanks to Snowden, we know much more about the government’s surveillance practices now than we did when Clapper v. Amnesty was argued and decided. (It was argued in the fall of 2012 and decided in February 2013, just a few months before the first Snowden revelations began to appear in the Guardian and Washington Post.) Second, the government itself has now acknowledged and confirmed many of the key facts about the NSA’s upstream surveillance. Third, the volume of Wikimedia’s communications is so incredibly large that there is simply no way the government could conduct upstream surveillance without sweeping up a substantial number of those communications.

I’m sure the government will argue that Clapper v. Amnesty forecloses this suit, but I don’t think this will be a very compelling argument.

I don't think the NSA would refuse to comply. I do think it would exploit ambiguities in any court order. Which is part of why we're pressing Congress to require the NSA to be more transparent about its activities and to ensure that the NSA's activities are subject to meaningful judicial review on an ongoing basis.

This is a good question. As you probably know, in Clapper v. Amnesty, the U.S. Supreme Court held, in a 5-4 vote, that the ACLU’s plaintiffs in that case lacked standing to challenge the constitutionality of the 2008 FISA Amendments Act—the same statute the government now invokes to justify the NSA’s “upstream” surveillance. The Court reasoned that the plaintiffs didn’t have the right to challenge the statute because they couldn’t show a sufficient likelihood that their communications were being monitored. The plaintiffs couldn’t make that showing, of course, because the government refused to disclose, even in the most general terms, how the statute was being used.

I think Clapper v. Amnesty was wrongly decided (I argued the case, so this shouldn’t be surprising), but more importantly, I don’t think Clapper v. Amnesty forecloses our new case. I say this for a few reasons. First, thanks to Snowden, we know much more about the government’s surveillance practices now than we did when Clapper v. Amnesty was argued and decided. (It was argued in the fall of 2012 and decided in February 2013, just a few months before the first Snowden revelations began to appear in the Guardian and Washington Post.) Second, the government itself has now acknowledged and confirmed many of the key facts about the NSA’s upstream surveillance. Third, the volume of Wikimedia’s communications is so incredibly large that there is simply no way the government could conduct upstream surveillance without sweeping up a substantial number of those communications.

I’m sure the government will argue that Clapper v. Amnesty forecloses this suit, but I don’t think this will be a very compelling argument.

This suit is about surveillance by the US government. The ACLU is involved in other efforts relating to surveillance by other governments--see, e.g., this case against the GCHQ in the UK: http://www.theguardian.com/uk-news/2014/dec/05/uk-mass-surveillance-laws-human-rights-tribunal-gchq. But the truth is that a more global solution to the problem of mass surveillance will require diplomacy, not just lawsuits.

We’re deeply concerned about the government’s indiscriminate surveillance of non-U.S. persons’ communications, and we’ve pressed this issue in other forums, including the Privacy & Civil Liberties Oversight Board, the Inter-American Commission, and the U.N. Human Rights Committee. Wikimedia and many of the other plaintiffs in this lawsuit share our concerns. We’ve focused on Americans’ international communications in this suit only because American law limits (unreasonably and unjustly, in our view) the kinds of claims we can bring on behalf of non-U.S. persons outside the United States. But we’re hopeful that any new safeguards that the government is forced to adopt (or adopts of its own accord) as a result of this suit will have the effect of protecting everyone, not just Americans.

Someone else asked a very similar question, and I just answered it above. (And thanks for your support!)

It's a really important question. I find this analogy that Bruce Schneier gave at SXSW a couple of days ago useful: Would you want a cop car driving next to you, watching you, at all times even if you weren't doing anything wrong? Would you want to remove all of the curtains or shutters in your home? The persistent monitoring of our communications by the government has the same effect, even if it seems less evident. There is too much information about innocent people in government databases - about their movements, whom they choose to talk to and associate with, and where they spend their time. This erodes the liberties we all take for granted. And I think someone already linked to this TED talk on the issue by Glenn Greenwald. I highly recommend it: http://www.ted.com/talks/glenn_greenwald_why_privacy_matters?language=en

EFF has been very supportive (and in fact EFF has filed its own challenge to upstream surveillance out in California). I hope and expect that EFF will eventually appear as an amicus in our case. And we will certainly reach out to tech companies, too, for amicus support.

For more than a decade, the NSA told the Foreign Intelligence Surveillance Court that its call-records program was not just effective but "the only effective means" of monitoring the calls of suspected terrorists. After the Snowden revelations, the Privacy and Civil Liberties Oversight Board and the President's Review Group both concluded that the program had never been pivotal in any investigation. And the President himself acknowledged that the NSA could track terrorists' calls without collecting everyone's call records. More: http://justsecurity.org/6159/privacy-board-debunks-justification/

This issue requires a longer answer than I can provide here. But here's a recent blog post from one of my colleagues on this topic: https://www.aclu.org/blog/technology-and-liberty-free-speech/after-decades-fight-net-neutrality-huge-win-free-speech-onli

Two more serious points. First, the ACLU is a nonpartisan organization. We defend the Bill of Rights and the Constitution. In the fight against mass surveillance of innocent Americans, many of our most committed allies are conservative or libertarian. Second, privacy is something everyone should care about. Doesn't matter what your politics are. If you want a society in which dissent is possible, you need to defend privacy.

There are a lot of things you can do. For starters, we're planning a big fight against the reauthorization of Section 215 of the Patriot Act, which the government uses to conduct bulk surveillance of Americans' phone records. You can make clear to your representatives that you expect them to oppose reauthorization. Here's a petition you can sign: https://www.aclu.org/secure/stopnsa. Thanks for your support!

It's a hard case. But we wouldn't have brought it if we didn't think we had a real chance of convincing the courts to rule our way. I think the Snowden revelations have led many people--including many judges--to realize for the first time that government surveillance has become a real threat not just to individual privacy but to the freedoms of speech, association, and inquiry as well.

I expect we'll be filing legal briefs over the next few months and that the district court in Maryland will hear oral argument in the fall.

Standing and state secrets have been hurdles in many other surveillance suits. As I explained in response to other questions, though, we are optimistic that we will be able to overcome those hurdles here. There is a lot more information in the public domain now than there was when those other surveillance cases were litigated.

We've drafted a proposed "General Comment" to the International Covenant on Civil and Political Rights that would flesh out the right to privacy for the digital age. Our proposal is here: https://www.aclu.org/sites/default/files/assets/jus14-report-iccpr-web-rel1.pdf