NSA Surveillance Lawsuit Ironically Dismissed as 'Speculative'

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By William Peacock, Esq. on June 14, 2013 4:11 PM

Perhaps a motion for rehearing might be in order here?

Two weeks ago, if someone were to tell you that the National Security Agency was monitoring your phone records, your phone’s GPS location, and basically everything you do online, you might’ve said that such a statement was “speculative.” Or, if you aren’t as soft-spoken as the Ninth Circuit, you might’ve told that person to get back on their medication and to remove the tin foil from their head.

How about now? And will the recent NSA scandal cause the Ninth Circuit to reconsider today’s unpublished dismissal of Center for Constitutional Rights v. Obama?

The CCR is a legal advocacy organization dedicated to protecting rights guaranteed by the United States Constitution. According to CCR, the lawsuit was brought on behalf of itself and its legal staff, who were concerned over the NSA's surveillance and storage of their privileged client communications.

In 2006, they requested an injunction to prohibit NSA surveillance conducted under a predecessor to the present-day program, the Terrorist Surveillance Program, which allegedly ended in 2007 when the FISA Amendments Act of 2008 legalized the surveillance and birthed the current program. When the government contended that the program had ended, CCR requested that all stored records be destroyed.

The lower court refused such an order, holding that CCR had to prove that they were spied upon by the secret program. (Good luck with that.) Earlier this week, the Ninth Circuit affirmed, relying upon the Supreme Court's recent decision in Clapper v. Amnesty International, which was a similar challenge to the FISA program.

"Although CCR might have a slightly stronger basis for fearing interception because of the lack of [any Foreign Intelligence Surveillance Court] involvement, CCR's asserted injury relies on a different uncertainty not present in Amnesty Int'l, namely, that the government retained 'records' from any past surveillance it conducted under the now-defunct TSP. In sum, CCR's claim of injury is largely factually indistinguishable from, and at least as speculative as, the claim rejected in Amnesty Int'l."

It is in interesting holding -- that someone must prove that a secret surveillance program surveilled-and-stored their private communications before requesting judicial intervention. Unless there are more whistleblowers out there like Edward Snowden wiling to toss away their lives in order to testify in relatively minor lawsuits.

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