Dragnet Surveillance Puts Innocent Americans' Telephone Calls And Emails At Risk

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NEW YORK – The FISA Amendments Act is the most sweeping surveillance bill ever enacted by Congress and should be struck down as unconstitutional because it utterly fails to protect U.S. residents' privacy and free speech rights, according to a brief filed in federal court today by the American Civil Liberties Union. This is the first legal brief challenging the constitutionality of the new wiretapping law and is part of the ACLU's landmark lawsuit to stop the government from conducting surveillance under the law.

"The FISA Amendments Act allows the mass acquisition of Americans' international e-mails and telephone calls," said Jameel Jaffer, Director of the ACLU National Security Project. "The administration has argued that the law is necessary to address the threat of terrorism, but the truth is that the law sweeps much more broadly and implicates all kinds of communications that have nothing to do with terrorism or criminal activity of any kind. The Fourth Amendment was meant to prohibit exactly the kinds of dragnet surveillance that the new law permits."

Signed into law in July, the FISA Amendments Act (FAA) gives the Bush administration virtually unchecked power to intercept the international – and in some cases domestic – emails and telephone calls of law-abiding Americans. The new law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it's conducting the surveillance or whether it suspects any party to the communication of wrongdoing. 

Under the powers granted by the FAA, the government can:

• Acquire all of the international communications of U.S. citizens and residents on the theory that the surveillance is directed at collecting foreign intelligence information and targeted at people outside the United States;

• Acquire all telephone and e-mail communications to and from countries of particular foreign policy interest – for example, Russia, Venezuela, or Israel – including communications made to and from U.S. citizens and residents;

• Acquire all of the communications of European attorneys who work with American attorneys on behalf of prisoners held at Guantánamo, including communications in which the two sets of attorneys share information about their clients and strategize about litigation.

The ACLU filed the lawsuit on behalf of a broad coalition of attorneys and human rights, labor, legal, and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States. According to today's brief, the law undermines the plaintiffs' ability to gather information, represent their clients and engage in domestic and international advocacy.

"This law will affect anyone whose work requires sensitive or privileged telephone and email communications with colleagues, clients, witnesses, victims of human rights abuses or anyone else located outside the United States," said Melissa Goodman, staff attorney with the ACLU National Security Project. "Because of the nature of their work, our clients have reason to believe that their communications will be monitored and the new law will seriously undermine their ability to do their jobs." 

Attorneys on the lawsuit Amnesty v. McConnell are Jaffer, Goodman and L. Danielle Tully of the ACLU National Security Project; Christopher Dunn and Arthur Eisenberg of the New York Civil Liberties Union; and Charles S. Simms, Theodore K. Cheng and Matthew S. Morris of the law firm Proskauer Rose LLP.

The ACLU's brief is available online at: www.aclu.org/safefree/nsaspying/35945res20080710.html

More information, including press releases, legal documents and statements from the ACLU's clients, is available online at: www.aclu.org/faa