In ACLU v. NSA, –F.3d — (6th Cir. 2007), a panel from the 6th Circuit held that the ACLU and other plaintiffs lacked standing to challenge the Bush Administration’s warrantless wiretapping program conducted by the National Security Agency (NSA). NYT coverage is here. According to the sketchy details known about the program, the court noted, “it has been publicly acknowledged that the TSP [the Terrorist Surveillance Program, as it has now been named by the Administration] includes the interception (i.e., wiretapping), without warrants, of telephone and email communications, where one party to the communication is located outside the United States and the NSA has ‘a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.”
The plaintiffs are “journalists, academics, and lawyers who regularly communicate with individuals located overseas, who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP.” The plaintiffs claimed that the NSA wiretapping violated, among other things, the First Amendment, Fourth Amendment, and the Foreign Intelligence Surveillance Act (FISA).
According to Judge Batchelder’s opinion, the plaintiffs could not establish standing because they could not directly prove that they were subject to surveillance. One of the problems with the court’s reasoning is that there is little way for the plaintiffs to find out more specific information about whether particular plaintiffs’ phone calls have been wiretapped. As a result, the government can violate the plaintiffs’ First and Fourth Amendment rights with impunity if they cannot ever learn enough to gain standing to challenge the surveillance.
In a recent article, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112 (2007), I examined the nature of the injury to First Amendment activities from government surveillance. I wrote:
Determining the existence of a chilling effect is complicated by the difficulty of defining and identifying deterrence. It is hard to measure the deterrence caused by a chilling effect because it is impossible to determine with certainty what people would have said or done in the absence of the government activity. Often, the primary evidence will be a person’s own assertions that she was chilled, but merely accepting such assertions at face value would allow anyone claiming a chilling effect to establish one. At the same time, demanding empirical evidence of deterrence is impractical because it will often be impossible to produce.
In other words, the chilling effect doctrine is a mess. By requiring too much specific proof of deterrence, courts can effectively make it impossible for any plaintiff to establish a chilling effect. In my article, I attempted to use First Amendment doctrines to help illuminate a more meaningful approach toward analyzing the existence of a chilling effect: