A section of the 1978 act allows the U.S. attorney general and the director of national intelligence to jointly authorize the "targeting of [non-U.S.] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information," normally with the special Foreign Intelligence Surveillance Court's prior approval of targeting and procedures.
The issue is whether a group of organizations that say they are harmed by the provision have standing under the Constitution to file suit in court. The government contends they offered "no evidence that the United States would imminently acquire their international communications using [the section of the act]," or that an injunction "would likely redress their purported injuries."
But a federal appeals court in New York ruled otherwise, saying the groups had standing to file.
"The plaintiffs' uncontroverted testimony that they fear their sensitive international electronic communications [are] being monitored and that they have taken costly measures to avoid being monitored -- because we deem that fear and those actions to be reasonable in the circumstances of this case -- establishes injuries in fact," the appeals court said, "that we find are causally linked to the allegedly unconstitutional [FISA Amendments Act]. We therefore find that plaintiffs have standing to challenge the constitutionality of the [act] in federal court."
The groups include Amnesty International USA, the Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation Magazine, PEN American Center, Service Employees International Union, the Washington Office on Latin America and several individuals.
The Supreme Court accepted the case without comment. Argument should be held next term.
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