DOJ petitions federal appeals court for rehearing in wiretapping decision

[JURIST] The US Department of Justice (DOJ) on Thursday petitioned the US Court of Appeals for the Second Circuit [official websites] to reconsider a ruling [opinion, PDF] that plaintiffs in Amnesty v. Blai [ACLU materials] had standing to sue the US government over surveillance. The plaintiffs, including attorneys, journalists and rights organizations, facially challenged [JURIST report] Section 702 of the Foreign Intelligence Surveillance Act (FISA) [50 USC § 1881(a)], which was added by the FISA Amendments ACT of 2008 (FAA) [HR 6304 materials]. The law created procedures to allow electronic government surveillance of individuals living outside of the US for foreign intelligence purposes, which the plaintiffs alleged was violative of the Fourth Amendment, First Amendment and Article III of the Constitution. A 2009 ruling [JURIST report] from the US District Court in Manhattan dismissed the suit after finding the plaintiffs lacked standing to sue because they did not suffer an injury in fact. A three-judge panel of the Second Circuit determined that the plaintiffs had standing [JURIST report] because the law put them in a "lose-lose" situation whereby they could continue with their activities and risk monitoring or they could incur financial and professional costs in order to avoid monitoring. The American Civil Liberties Union (ACLU} [advocacy website], one of the plaintiffs in the case, urged the court to reject the petition for rehearing [statement], calling the government's efforts to block the FAA from judicial review "disappointing and dangerous."

The ACLU has been critical of other government surveillance programs. In February, Congress approved an extension of the USA Patriot Act [JURIST report] with no new privacy measures, allowing for continued use of roving wiretaps, tracking of "lone wolf" terrorism suspects and the government's ability to seize "any tangible items" in the course of surveillance. The ACLU criticized Congress for failing to add civil liberty and privacy protections into the bill and instead choosing to "punt [the] critical issue down the road." In December, the US Court of Appeals for the Ninth Circuit [official website] dismissed [JURIST report] a constitutional challenge to the Patriot Act due to lack of standing. The US District Court for the District of Oregon [official website] had previously ruled that certain provisions of the act were unconstitutional [JURIST report].

 

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