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The current wiretapping case is not about wiretapping at all

By and large, Amnesty International does good work. They represent the downtrodden and oppressed all over the world and bring attention to otherwise unknown human rights violations. Having said that, in a case currently before the Supreme Court, Amnesty International may have unintentionally blocked future plaintiffs from bringing cases about the U.S. government’s use of warrantless wiretapping.
On Monday the Supreme Court will hear arguments in a case about the constitutionality of the warrantless wiretapping allowed under both the Bush and Obama national security regimes. Amnesty International alleges that the wiretapping is improper and that their employees have had to make significant changes in the way they communicate with foreign contacts for fear of being subjected to the wiretapping. The issue the Supreme Court will be deciding has nothing to do with the legality of wiretapping, but whether or not Amnesty International had standing to bring the case in the first place.
Legal wiretapping in this country is a thorny issue. Under the general guise of the Fourth Amendment, all citizens are protected from warrantless searches and seizures. Erosions of those rights, particularly in the name of national security or public safety, have normally been held to be constitutional. In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA), which was an attempt to regulate the President’s use of wiretapping for national security reasons. Under the act, instead of using a normal court to obtain a warrant, if a target of surveillance was associated with a foreign power, a warrant could be obtained from the newly created Foreign Intelligence Surveillance Courts. Needless to say, the legal standards in the Foreign Intelligence Surveillance Courts are far more relaxed and it’s much easier to show sufficient probable cause to obtain a warrant for foreign surveillance.
Under the Bush administration, there were challenges to FISA. In 2008, Congress enacted the FISA Amendments Act, which further lessened the standards required for wiretapping of foreign suspects. Instead of specific warrants for specific targets, blanket warrants were issued, and Americans who happened to get caught in the web of these communications could also have their communications observed without an additional warrant.
Arguably, Amnesty International knew what they were doing when they filed their lawsuit. Many Americans probably don’t realize warrantless surveillance was still being used. While this lawsuit was an attempt to call attention to that fact, legal precedent is not on their side. Standing is a requirement to bring a case, or put another way, the plaintiff has to have suffered some injury at the hands of the defendant in order to bring a claim. Recent judicial trends have narrowed rather than expanded the definition of standing, and the conservative makeup of the current Supreme Court seems unlikely to reverse that trend.
Amnesty International has no argument that they have suffered an injury; the mere inconvenience of their employees is not enough. By bringing this case, they’re going to ensure that the definition of standing remains limited and they will make it difficult for someone to bring a case about warrantless wiretapping even if they have suffered an actual injury.
Amnesty International may have had good intentions when they filed their suit, but for someone convicted with evidence gathered from warrantless wiretapping, they may have a much different view of Amnesty International’s standing case.

Brittany Sharkey is a third-year law student from Oceanside, Calif. She graduated from NYU in 2010 with a degree in politics. Follow her on Twitter @brittanysharkey.