Andrew Cohen gets Chris Hoofnagle’s thoughts on the ACLU’s lawsuit against the NSA:
The American Civil Liberties Union (ACLU) sued the NSA in June, claiming that PRISM’s call-tracking program violates the constitutional rights of free speech, association, and privacy—and that it constitutes “dragnet” surveillance, which violates the First and Fourth Amendments. Hoofnagle, co-chair of the annual Privacy Law Scholars Conference and a frequent media analyst on privacy issues, thinks the ACLU faces an uphill climb.
“Those free speech and associational arguments are difficult to mount because of the Supreme Court’s 1972 holding in Laird v. Tatum concerning military surveillance of Americans,” he said. “Because the court ruled that the mere existence of a surveillance program did not create a recognizable First Amendment harm, the plaintiffs will have to show more than just a ‘subjective chill’ of free-speech interests.”
Although the Fourth Amendment requires law enforcement to show probable cause for domestic surveillance, intelligence-gathering is treated differently. The Supreme Court determined that such activities can be conducted with different, lower standards than required by the Fourth Amendment.
“In principle, I think that’s a reasonable view,” Hoofnagle said. “But the political process still must address several problems, including the risk of leaking intelligence data into the criminal process and the risk that intelligence data are used for competitive business purposes. Intelligence gathering must happen to keep the country safe, but we need to find legal and political structures to promote more accountability and trust in intelligence agencies.”
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