Bill’s excellent (and fast!) post on Judge Taylor’s decision in ACLU v. NSA raises several fascinating points. Here in Detroit, the law school is abuzz about the case, and my colleague Bob Sedler is doing a host of television and press interviews on the constitutional law implications. I’m not expert on consitutional law (to the degree I’m expert on anything), but I did want to raise two questions.
First, Judge Taylor’s reasoning on the state secrets doctrine may not be fully convincing. She rightly, and smartly, cites both the Sixth Circuit’s take on the issue (Tenenbaum v. Simonini, 372 F.3d 776) and the Supreme Court’s ruling on the Army’s domestic surveillance program in the 1970s (Laird v. Tatum, 408 U.S. 1 (1972)). Since both cases dismissed the plaintiff’s claims based on state secrets, Judge Taylor has some lifting to do. She distinguishes the cases on two points. First, unlike in Tenenbaum, the government has already confirmed information about the electronic surveillance program; the plaintiffs, she finds, need no more information (and carefully are not seeking any more) to meet their initial burden of proof. Second, unlike in Laird, the plaintiffs (including lawyers and journalists) are injured not by a theoretical “chilling effect” on their activities, but by actual injury: reduced communication with foreign persons who meet the definition for inclusion in the surveillance program, and increased financial burdens from traveling to meet with these persons, since electronic communication might be insecure. (She notes that professional ethics require an attorney to protect the confidentiality of communications with a client; as such, discussing privileged information on a line that may be tapped could well violate this duty.)
Judge Taylor’s reasoning on state secrets seems sound regarding the first prong (really a question about justiciability). Her second point, though, seems more debatable. We don’t know – and it would violate the state secrets doctrine to find out – whether these specific plaintiffs (or their communicants) have been targeted by the NSA program. This would seem to bring the case much closer to Laird, where the plaintiffs claimed Army surveillance of demonstrations with “some potential for civil disorder” chilled their expressive activities and their participation in such disorders. (Quote from the opinion at 19, citing 408 U.S. at 6.) Note that they weren’t claiming that they were specifically targeted; rather, it was the threat that they would fall within the ambit of this surveillance program that caused the harm. To me, this seems very close to what plaintiffs here are alleging.
This is also different, in important respects, from the situation Judge Taylor discusses in Presbyterian Church v. U.S., 870 F.2d 518 (9th Cir. 1989), where government agents entered a church to conduct unlawful surveillance. Physical monitoring can be established much more readily than electronic surveillance, and is thus less likely to run afoul of the state secrets rule.
In short, there’s at least a plausible argument, under the state secrets doctrine and the “standing” doctrine, that the plaintiffs don’t have standing: the fact that they could be subject to surveillance, without knowing whether they are, isn’t enough. In short, to prove standing, they might need information that is blocked (perhaps fatally so for their case) by state secrets.
This is an initial response, and I’m eager to see what people who are more knowledgeable think.
Second, most of the discussion by plaintiffs in these cases (see also Hepting v. AT&T, 2006 WL 2038464 (E.D. Cal. 2006)) has focused on telephone monitoring, not e-mail. This ironically makes the case easier for the government. It’s relatively straightforward, in a circuit-based system like telephones use, where the caller is and where the recipient is – effectively, the phone system creates a direct link between the two parties. With e-mail, though, the sender’s location can be determined with reasonable accuracy, but the recipient’s location is not clear – and neither is the path that the message takes to that recipient. If a phone call between two people – whether U.S. citizens or not – is entirely within the U.S., then domestic wiretap rules apply. Once it’s outside the U.S., though, the rules change.
E-mail isn’t so simple, though. The “location” of the recipient may be uncertain, or it may not clarify which legal rules should apply. A message from me (in Michigan) to Bill (in Minnesota) might conceivably route through China. What about a message from me to someone who might be affiliated with al Qaeda, but who stores his e-mail on a Hotmail account here in the U.S.? How can we determine, based on an e-mail address, where a recipient is located and, in some cases, even who the recipient is? E-mail is a new ballgame for some of the legal aspects of surveillance and surveillance control, and I would be very glad indeed to see the courts address this angle.