Can You Sue the Government for Spying on You?

While most of the federal government was shut down in response to Hurricane Sandy, the Roberts Court was considering a case that tests the limits of the federal government’s surveillance powers in a post-9/11 world. Or at least promises to.

The case stems from the 2008 FISA Amendments Act, legislation that retroactively legalized the Bush administration’s warrantless spying program. It was a massive blow to civil liberties and authorized warrantless surveillance aimed at targets abroad and their contacts–including contact where one of the target’s points of contact is within the United States. Essentially this means the US government can, and likely does, spy on American citizens without a warrant or probable cause.

Prior to the FISA Amendments Act surveillance in cases targeting foreign agents had to be approved by a special FISA court, in part to protect against this kind of roving, warrantless and likely baseless surveillance. That is no longer the case.

Troubled by these developments a group of journalists, lawyers and human rights activists challenged the law and it is that challenge that is finally before the Court now. The issue before the Supreme Court is not whether or not this kind of spying on American citizens is okay. Instead, the Court is set to answer whether the lawyers, activists and journalists can bring a claim to begin with.

It’s the government’s position that the plaintiffs in this case don’t have standing. That is, the government claims these plaintiffs can’t prove they will be harmed by the law, in part because who the government spies on is, by definition, secret.

In a nutshell the government’s case is that the plaintiffs can’t prove they were illegally spied upon because who the government spies on is classified by law.

The state’s secret doctrine has been used to justify failing to disclose warrantless domestic wiretaps, extraordinary rendition for torture and whether or not Americans have been placed on “kill lists.” In a post-9/11 world “state’s secrets” means basically whatever the executive branch wants it to mean, and the federal judiciary has largely played along.

Will they continue to do so? It’s hard to say. The Roberts Court has continued the legacy of its predecessor and has taken nearly every opportunity to cut off access to the federal courts that have been presented in previous cases, so there’s no reason to think they would automatically be inclined to give the ACLU and human rights advocates another day in court. And even if they do and the plaintiffs win there is even less a guarantee their challenges to the law will succeed.

Welcome to the new normal.


Related Stories:

SCOTUS Agrees To Review Domestic Surveillance Challenge

The Patriot Act Ten Years Later

Police Use of Cellphone Tracking Threatens Privacy


Photo from ConvenienceStoreGourmet via flickr.


Spirit Spider
Spirit Spider5 years ago

Kill list? New normal? At least it's being talked about instead of covered up under the guise of a conspiracy theory

Vince P.
Vince p5 years ago

I think the FISA Secret Courts, should be declared unconstitutional, since the Judges do not answer to anyone. All a Federal Law Enforcement Officer has to do is contact a Judge and get a warrant for just about anything they wish to do, all in violation of the US CONSTITUTION, i.e., BILL OF RIGHTS!

We are leaning towards a "communist type government" in that the government is getting too much power and does not have to answer for their actions.

Sarah M.
Sarah M5 years ago


Annmari Lundin
Annmari L5 years ago

Tamara H. There is a saying: If you have nothing to hide, why be afraid of being watched/controlled/surveilled? That is the usual argument used by those gullable and naive persons that just don't get it. I have nothing to hide, but I be damn*d if I want someone snoping around my private business/views/thought. If we keep accepting more and more of spying from numerous Government agencies, we will one day (that may come sooner than we know) be in a position where we won't even be allowed to have private thoughts, let alone vote, post our comments on and offline or participate in protests. We have to make sure that not only those protections we have now will be there for us in the future, but we have to reinforce them and keep an eye on those that want to eradicate our freedoms.

Annmari Lundin
Annmari L5 years ago

Like Sian R. I tease them (the spies). I use one of my e-mail accounts. There I have a signature that have words like Hamas, Jihad, bombmaking, etc in a sentence that basically tells, whoever is reading, that I have nothing to do with them. There are thousands of programs used by Governments all over the world, that search after specific words in text messages, e-mails and conversations. Every time I send an e-mail from my special account, I hope I'm making some little deskjockey spy really happy. Because if they want to waste time spying on me, there can't be many real threats out there.

Mary L.
Mary L5 years ago

I use to avoid reading dystopian novels like Neuromancer. Now I live in one.

Lynn C.
Lynn C5 years ago

What a creepy world these people are creating.

Kamryn M.
Kay M5 years ago

unfortunately govt can usually get away with whatever they want.

Wim Zunnebeld
Wim Zunnebeld5 years ago


Sian R.
Sian R5 years ago

Paranoia rules ok?
But don't think you're the only ones the Merkin government is spying on.
Several years ago a political comedian in the UK made it known that your government has a 'listening post' here in the UK, operating with the full co-operation of the British government.
What business is it of YOUR government what OUR citizens are doing?

Mind you, once you know they're listening in you can have some fun. For example I always pepper my telephone conversations (with friends who play along) with 'trigger' words like 'ricin', 'bomb', 'spy,' 'martyr,' etc.