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Supreme Court to Consider International Wiretapping Law

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By Stephanie Rabiner, Esq. on May 22, 2012 6:55 AM

A 2008 amendment to the Foreign Intelligence Surveillance Act (FISA) is heading to the Supreme Court. A group of activists, lawyers and journalists, including the ACLU, challenged the international wiretapping law, which gives the government permission to listen to overseas communications without much judicial oversight.

Though the high court will be opining on the lawsuit, it will not be considering the law's substance. The Obama administration is trying to stave off the challenge and has argued that the plaintiffs have no standing to sue.

To understand the challenge, one must understand the international wiretapping law. Prior to the FISA amendment, intelligence officials had to acquire a search warrant for an individual person before eavesdropping on their international communications. They’d essentially have to show that these people were suspected terrorists or spies, according to the Los Angeles Times.

Since the passing of the amendment, such individualized suspicion is no longer required. Officials can instead ask a judge for a "mass acquisition" warrant. These warrants allow the U.S. intelligence community to monitor the phone calls and emails of non-Americans who are located overseas, explains Reuters.

The ACLU and other plaintiffs take issue with the breadth of these warrants. They sued, stating that they are in "reasonable fear" that their communications with people abroad are being monitored. Though the wiretap targets must reside abroad, these mass warrants cover all of their communications — including those sent and received by U.S. citizens located in the U.S.

Because standing requires proof of injury or imminent injury, there’s a question of whether "reasonable fear" of wiretapping is sufficient enough to give the ACLU the right to challenge the international wiretapping law. This is the question the Supreme Court will be answering next term.

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