NEW YORK - 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: www.aclu.org/faa

The ACLU's FOIA request is at: www.aclu.org/national-security/aclu-foia-request-information-related-implementation-fisa-amendments-act