Surveillance, Scale, and Standing

Fourth Amendment jurisprudence has always had a contentious relationship with innovation. From wiretapping pay phones to GPS units, advancing technology has continued to provide the government with increasingly powerful surveillance tools, and in case after case courts have been forced to restrict the use of this technology to comply with constitutional limitations. To some degree, this conflict is unavoidable. Technology looks towards the future, expanding our abilities in ways that are often difficult to predict. Law, with its reliance upon precedent, faces the past. Technical innovation necessarily precedes legal innovation, and great complexity often resides in the gap between the two.

Clapper v. Amnesty International, recently argued before the Supreme Court, is the latest case to illustrate this phenomenon. On its merits, Clapper involves a coalition of attorneys, journalists, and non-governmental organizations challenging the validity of the U.S. government’s ongoing wiretapping efforts as authorized by the Foreign Intelligence Surveillance Act (FISA) and the subsequent FISA Amendment Act of 2008. The question before the Court is a seemingly simple one: do the plaintiffs (Amnesty International et al.) possess standing to challenge FISA in the first place?

The legal concept of standing refers to a party’s ability to take part in a particular dispute. For federal courts, the standing requirement arises from the limitations imposed by Article III, Section 2 of the United States Constitution, which has been interpreted to mean that the federal judiciary may only hear “cases or controversies” in which the plaintiffs can demonstrate a specific injury at the hands of the defendant.

In Clapper, the plaintiffs’ argument in favor of standing is fairly straightforward. The attorneys, journalists, and the rest of the plaintiffs routinely engage in work that overlaps with the U.S.’s diplomatic and counterterrorism interests. This overlap, combined with their understanding of the general operation of government surveillance, has led the plaintiffs to believe that there is a high likelihood that their communications have been intercepted via FISA-authorized surveillance. Based upon this belief, they have undertaken extraordinary measures to ensure the confidentiality of their communications, the cost of which translates into an injury suffered at the hands of the government.

The government’s counterargument is equally straightforward: national security considerations require that the existence of FISA surveillance be kept secret from its targets until it is acted upon. This secrecy means that the plaintiffs lack any hard evidence that they have been the targets of such surveillance, and thus any injuries that they have suffered were due to voluntary actions undertaken upon nothing more than a perceived probability. Furthermore, evidence gathered through FISA surveillance is only intended to target foreign nationals operating on foreign soil, outside of the protection of the Fourth Amendment. As a practical matter, this suggests that no one who is protected by the Fourth Amendment would ever have enough evidence to challenge FISA. Justices Sotomayor and Ginsburg questioned Solicitor General Donald Verrilli on this very issue in the opening minutes of the Clapper oral arguments, and General Verrilli appeared to concede the point.

The debate over the role of probability in determining standing may sound like a narrow, procedural issue far removed from the merits of the case. The rhetoric employed in the briefs and oral arguments bears this out, relying heavily upon two-word standards derived from long chains of cases involving such factually-disparate circumstances as the farming of genetically modified alfalfa. The government would restrict standing to those who could demonstrate that surveillance was “certainly impending,” while the challengers would require a lesser showing of “substantial risk.” The Court, for its part, seems far more interested in traditional, precedent-based legal arguments than in the facts of this case and the operation of FISA.

Before relegating the issue of standing to the basket filled with all technically complex questions of procedure better resolved as questions of law than of fact, it is important to remember that standing is really about the scope of legally cognizable injury. By ruling that a plaintiff does not possess standing within a certain factual context, the Court is effectively stating that any other plaintiffs that find themselves in similar circumstances are similarly precluded from relief. The principal of stare decisis, of reliance upon precedent, requires this result. And like any philosophical principal intended to govern real-world action, this one must be able to accommodate for empirical, external reality.

At its heart, the art of stare decisis is that of analogy. When a court draws upon precedent, it is implicitly stating that the question before it is similar to a decision it has made before. In fact, the court states, the two are so similar that the logic that prevailed in the earlier case should still be applied in the present. There are countless arguments in favor of this kind of reasoning—consistency, predictability, and efficiency, to name a few—all of which hold doubly-true in the field of law.

However, far more than other forms of argumentation, relying upon analogy leaves one particularly vulnerable to the dangers of drawing false equivalences. A false equivalence is one of the more common logical and rhetorical fallacies in which one claims a likeness between two things when in fact no such equivalence exists. The threat is multiplied in complex subjects, when it is tempting to draw connections between seemingly similar elements without accounting for holistic, contextual differences. When it comes to judicial decisionmaking, the implications of this weakness can be profound, especially in cases analyzing the intersection of the Fourth Amendment and technology.

The central question in most Fourth Amendment cases is whether or not a particular government action qualifies as a “search.” This presumes that a search is a knowable, definable, practically Platonic thing. But surveillance, especially in its more modern varieties, is far more a function of the medium under observation than an expression of some underlying, singular “search.” Wiretapping does not exist independently of telecommunications technology, it relies upon the architecture of a telecommunications network that allows for a digitally-encoded message to be intercepted without the knowledge of either the sender or the intended recipient. Similarly, modern data analysis techniques, along with advances in computer processing and storage, allow analysts to search through millions of documents in seconds, effectively decoupling the scope of surveillance from the formerly unsurpassable limitations of logistics and personnel. Properly understanding the implications of modern data analysis is as much about the hardware and the software as the specific information the analysts manage to extract.

Fundamentally, all technological forms of surveillance are inseparable from the technologies they observe. It is potentially disingenuous to pretend that this is not the case, a danger that Clapper casts into harsh relief. Precedent from earlier times suggests the Fourth Amendment only protects citizens to the extent surveillance is knowable and provable. Yet, over the years, quantitative advancements in collection, storage, and the like have increased the government’s capabilities to such a degree that there has been a qualitative change in the way in which it conducts surveillance. No longer does it wiretap individual phone booths or follow individual cars, now it can intercept and analyze huge swaths of communications prospectively. The possibility of surveillance has become the default, rather than a specific intrusion under exceptional circumstances. This is different. This is new. In the face of our modern capacities, past analogies utterly fail.

The plaintiffs in Clapper will probably never be able to explicitly demonstrate that they have been the targets of government surveillance. The legal and technological barriers are simply too opaque. But in today’s world, in which the scope of surveillance is expanding so rapidly in both breadth (as demonstrated in Google’s recent transparency report) and depth (e.g., revelations surrounding the FBI’s ability to access the former Director of the CIA’s email), it seems like arguments based on probability will be the only recourse left to many plaintiffs.

We are left with two possible responses. On the one hand, courts can continue to treat the definition of Article III standing as a pure question of law where the facts play a secondary role. Or, courts could recognize that as the government’s abilities change and evolve, so too does the nature of the injuries that can be inflicted by their exercise. Whatever the Supreme Court eventually decides, one thing is certain: for the foreseeable future, whenever any court faces the question of technology-mediated government surveillance, it will cite to Clapper v. Amnesty International USA.

Photo Credit: David Drexler