Standing to Sue the NSA?

A couple of weeks ago, Wikimedia’s lawsuit against the NSA got thrown out. Wikimedia (and the ACLU, NACDL, Amnesty International, and many more) claimed the NSA was violating everyone’s rights with its “upstream” surveillance of internet communications. The court dismissed the case because nobody could prove that they had “standing” to bring the case in the first place. The plaintiffs failed to establish that the NSA had actually intercepted any actual communications. They relied on statistics — there are gazillions of communications that go over the wires being monitored, so there must have been improper interceptions. The court said “must have been” isn’t good enough, there isn’t standing, good day.

This isn’t the first time that’s happened. A few weeks before that, a Pennsylvania divorce lawyer had his case against the NSA shot down for the same reason — he couldn’t prove that he himself had been harmed, because he couldn’t show that any of his communications had actually been intercepted. So no standing, case dismissed.

These cases rely on the 2013 Supreme Court ruling in Clapper v. Amnesty International, which held that merely “possible” injury isn’t enough to assert standing in a case like this. You need to show that the injury is real, and either actually happened or is truly imminent. Even if there’s a reasonably good chance that your communications were intercepted, that’s not good enough. There’s no res ipsa loquitur when it comes to standing here.

Of course, that’s nonsense, because the whole doctrine of res ipsa is basically “yeah, the plaintiff can’t prove you harmed him, but come on! It’s pretty obvious you must have.” It’s rebuttable, but the doctrine at least lets the plaintiff into the courthouse. [Yes I know Fourth Amendment and First Amendment jurisprudence aren’t exactly the same as that of negligence in Torts, but come on.]

It doesn’t matter, though, because this is what the Supreme Court always does in cases like this. None of this is a surprise to anyone.

In Clapper, the appellants wanted the Court to say  §1881a of FISA is unconstitutional, as is the NSA’s surveillance of communications. The Supreme Court did not want to deal with these issues. This “no standing” decision is their way of saying that.

An important fact about the Supreme Court is that it doesn’t have to take every case that comes its way. It gets to pick and choose, for the most part. They exercise this discretion, for the most part, based on purely nonpolitical considerations such as how busy they are. Or because a given case isn’t the right one to make a ruling with, and they’re waiting for a better one to come along. (Sometimes they do appear to cross the line with their discretion, see Bush v. Gore, and when that happens the entire authority of the Court gets called into question. A lesson that has to get re-learned every now and then.)

Prudence is another consideration that the Court takes into account when accepting or rejecting a case. In other words, “we’d better not get involved in this issue.”

If you look back at all the times the Court has skirted an issue by saying a party had no standing, it’s hard to find a definition of standing that reconciles them all. I’ll go so far as to say that they are irreconcilable. There is no consistent theory that explains them all. Except, that is, the consideration of Prudence. When you take into consideration the Court’s desire to not go sticking its nose in a sensitive matter, everything becomes clear.

It’s been the Court’s practice to do this for a long time, now. This very fact was taught in the very first class of my first year of law school, back in 1993, and it was already an old habit long before then. So it cannot have come as a surprise to anyone. I’ll bet you a dollar that even if you did find proof that your personal communications had been intercepted — and after Snowden and all the other post-Clapper revelations, it’s easier to meet some of the Court’s conditions — they’d still find a way to say you lacked standing. They’ve left themselves plenty of wiggle room, there.

That doesn’t mean you don’t keep trying! Just don’t be surprised if they keep refusing to get to the merits. They don’t want any part of it.