Today, TechFreedom joined an amicus brief produced by the Brennan Center for Justice, urging the Supreme Court to preserve the right to challenge domestic surveillance programs through civil litigation.
The U.S. government has used the Foreign Intelligence Surveillance Act (FISA) to conduct warrantless dragnet surveillance of the Internet (known as upstream surveillance). In theory, FISA surveillance can be challenged in Foreign Intelligence Surveillance Court (FISC) proceedings and through the suppression of evidence in criminal prosecutions. But experience shows that these options are illusory, and that judicial review is available only through civil litigation. The amicus brief urges the Supreme Court to stop the government from using the state secrets privilege to throttle civil lawsuits challenging FISA surveillance before they begin.
“The Fourth Circuit’s decision enables the government to automatically dismiss FISA surveillance cases using the state secrets privilege,” said Vasundhara Majithia, a Litigation Associate at TechFreedom. “The fruits of FISA surveillance are almost always classified. Thus, allowing the state to plead the state secrets privilege to procure complete dismissal of civil litigation over FISA abuses thwarts judicial review of FISA surveillance.”
“Ex-parte FISC proceedings authorizing surveillance are inadequate to protect against abuses,” Majithia continued. “Decisions based only on one side of the story have a very high risk of inaccuracy and produce distorted legal outcomes. This has led to the court rubber-stamping several mass surveillance programs based on the government’s misrepresentations and non-disclosures. When this surveillance evidence is used in criminal prosecutions, defendants are precluded from effectively challenging surveillance evidence because the government refuses to provide them with information about the surveillance necessary to challenge it.”
“Americans’ privacy and liberty are at stake,” Majithia concluded. “This flawed process has enabled the government to collect billions of call records and Internet records, while leaving individuals with little or no protection against unlawful surveillance or accountability. The Supreme Court must intervene to prevent this outcome.”
The brief was written by Davis Wright Tremaine LLP on behalf of the Brennan Center for Justice and TechFreedom.
Read our related work, including:
- Coalition letter we joined on CIA secret bulk collection programs, (Mar. 15, 2022)
- Amicus brief we joined for Merchant v. Mayorkas, (May 29, 2021)
- Amicus brief we joined for FBI v. Fazaga, (Sep. 28, 2021)
- Amicus brief for the same case we joined at the appellate stage, (July 8, 2020)
- Coalition letter we joined on the impact of surveillance of U.S. residents (Oct. 29, 2015)
- Our podcast #305: “FISA at the Supreme Court” (Nov. 3, 2021)
- Our podcast #173: “NSA Checks Itself?” (May 4, 2017)
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.