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April 16, 2010
11:40 AM


Robyn Shepherd, (212) 519-7829 or 549-2666;

ACLU In Court Today In Challenge To Warrantless Surveillance Law

Americans Should Not Have To Prove They Have Been Spied On To Challenge Secret Spying

NEW YORK - April 16 - The American Civil Liberties Union argued in a New York federal appeals court today that its lawsuit challenging an unconstitutional government spying law should be reinstated. The ACLU and the New York Civil Liberties Union filed the landmark lawsuit in July 2008 to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unlimited power to monitor Americans’ international e-mails and telephone calls.

“This law allows the government to engage in dragnet surveillance of Americans’ international telephone calls and e-mails,” said Jameel Jaffer, Director of the ACLU National Security Project. “It intrudes on constitutionally protected privacy and free speech rights and sweeps far more broadly than is necessary to serve any legitimate government interest. In this context, the courts have not just the authority but the obligation to intervene. The lower court decision, which relegated Americans’ privacy rights to the mercy of the political branches, should be reversed.”

U.S. District Court Judge John G. Koeltl of the Southern District of New York dismissed the case in August on “standing grounds,” ruling that the plaintiffs – who include journalists, defense lawyers and human rights workers who rely on confidential communications to perform their jobs – did not have the right to challenge the new surveillance law because they could not prove with certainty that their own communications had been monitored. The ACLU is asking a three-judge panel of the U.S. Court of Appeals for the Second Circuit to overturn Judge Koeltl’s ruling.

“The lower court’s ruling creates a Catch-22 situation. The vast majority of people whose communications are intercepted under the secretive FAA will likely never know about it, so if the lower court ruling stands, the law may never be challenged in court,” said Melissa Goodman, staff attorney with the ACLU National Security Project. “To say that plaintiffs can't challenge this statute unless they can show that their own communications have been collected under it is to say that this statute may not be subject to judicial review at all.”

In November, the ACLU filed a Freedom of Information Act (FOIA) request for records related to the implementation of the new law, including reports indicating how the FAA is being interpreted and used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights. The FOIA request seeks records from the National Security Agency, the Justice Department, the Director of National Intelligence and the Inspector Generals at each of these agencies. The government has not yet released any of the records requested.

Attorneys on the lawsuit challenging the FAA are Jaffer and Goodman of the ACLU National Security Project; Christopher Dunn and Arthur Eisenberg of the NYCLU; and Charles S. Sims, Theodore K. Cheng and Matthew J. Morris of Proskauer Rose LLP.

More information about the ACLU's lawsuit challenging the FAA is online at:

The ACLU's FOIA request is at:

The American Civil Liberties Union (ACLU) conserves America's original civic values working in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to every person in the United States by the Constitution and the Bill of Rights.

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