Jay Reding.com

Sixth Circuit Reverses In NSA Wiretapping Case

Unsurprisingly, the Sixth Circuit has reversed a federal judge on a lawsuit against the NSA’s wiretapping programs. (Coverage of the earlier case can be found here.) The 2-1 decision threw out the case on the basis of standing to sue.

In order to have standing to sue, a plaintiff must show that they were injured, that their injury was caused by the conduct alleged in the suit, and that a court can actually remedy their injury. From a cursory reading of the opinion, the majority found that there was no particularized injury to the plaintiffs:

By claiming six causes of action, the plaintiffs have actually engaged in a thinly veiled, though perfectly acceptable, ruse. To call a spade a spade, the plaintiffs have only one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment or FISA — i.e., the plaintiffs do not want the NSA listening to their phone calls or reading their emails. That is really all there is to it. On a straightforward reading, this claim does not implicate the First Amendment. The problem with asserting only a breach-of-privacy claim is that, because the plaintiffs cannot show that they have been or will be subjected to surveillance personally, they clearly cannot establish standing under the Fourth Amendment or FISA. The plaintiffs concede as much…

The plaintiffs in this case used a grab-bag of arguments, none of which gave them standing to sue. The courts have traditionally been quite particular about which plaintiffs have standing and which do not (see Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)) — it takes a showing that a plaintiff has suffered something more than a hypothetical injury in order for them to have standing to sue.

This result is hardly surprising, and while the ACLU’s approach of implicating the First Amendment since they knew they could not survive a Fourth Amendment challenge was a smart tactical move, even the relaxed standards of First Amendment standing wouldn’t be enough to save their case. Standing requires a particular injury, and there’s no evidence that any of the plaintiffs were actually targeted by NSA surveillance.

I would not at all be surprised to see this case before the Supreme Court in the next term — given that the Supreme Court has been re-examining their previous decisions on standing (as in Massachusetts v. EPA, 127 S. Ct. 1438 (2007)) it may well be that Justice Kennedy provides the swing vote that overturns the Sixth. However, anything can happen, and it’s only a guess whether four Justices will be willing to enter the fray on this contentious issue.

UPDATE: Dale Carpenter had it figured from the beginning on the standing issue, even though he disagrees with the program in general.