Mar 212011
 March 21, 2011  Posted by  Court, Featured News, Surveillance

Associated Press reports that  the  2nd  Circuit Court of Appeals has reinstated a  lawsuit challenging the constitutionality of Section 702 of FISA.  The plaintiffs are Amnesty International and journalists, human rights organizations, and attorneys.  Howard Bashman points us to today’s ruling in Amnesty International USA v. Clapper:

Appellants – attorneys, journalists, and labor, legal, media, and human rights organizations – facially challenged the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C. § 1881a, which was added to FISA by Section 101(a)(2) of the FISA Amendments Act of 2008 (the “FAA”). The district court (John G. Koeltl, Judge) awarded summary judgment in favor of appellees, finding that appellants lacked standing. We conclude that on the facts accepted by appellees for purposes of summary judgment, appellants have established their standing to sue.


As the court makes clear, this ruling does not speak to the merits of the plaintiffs’ claims – only to the issue of standing:

The merits of the plaintiffs’ claims are not before us. The only issue presented by this appeal is whether the plaintiffs are legally in a position to assert these claims in a federal court, not whether the claims are to any degree valid. Their merit is an issue for another court on another day.

This is great news. The court’s decision seems to be based on the fact that the plaintiffs incurred actual costs and expenses trying to prevent interception:

The plaintiffs’ declarations, which, as discussed above, we must accept as true, establish that they have already incurred professional and economic costs to avoid interception. Having accepted the truthfulness of the plaintiffs’ declarations for purposes of the summary judgment motion, the government cannot now dispute whether the plaintiffs genuinely fear being intercepted, or whether the plaintiffs have actually incurred the costs they claim to have incurred. Thus, we have little doubt that the plaintiffs have satisfied the injury-in-fact requirement.

Read the full ruling here.

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