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NSA Warrantless Wiretapping Lawsuit's Dismissal Affirmed

By Brett Snider, Esq. on June 12, 2013 | Last updated on March 21, 2019

A 2007 lawsuit challenging the NSA's warrantless wiretapping program will not be revived, as the 9th U.S. Circuit Court of Appeals affirmed the suit's dismissal on Monday.

This legal action began years before the recent NSA leaks concerning Verizon phone records and the PRISM project. But it shows just how difficult it may be to stop NSA surveillance via lawsuits.

The Center for Constitutional Rights (CCR) has been fighting for nearly seven years to try to have the NSA's Terrorist Surveillance Program (TSP), which ended in 2007, labeled as unconstitutional.

CCR's Constitutional Claims

The CCR claimed in its federal suit against the government, CCR v. Bush (later renamed CCR v. Obama), that in using the NSA's TSP to intercept communications, the NSA knowingly listened in on conversations within our borders.

The government typically cannot legally listen to the content of domestic calls without a warrant, even if the call is made using a public pay phone (as if those still exist).

The CCR claimed that the government violated the Fourth Amendment rights of several of its members, intruding upon their reasonable expectations of privacy, when it made use of Patriot Act provisions allowing communications surveillance without a warrant.

9th Circuit Denial

The CCR's original case was dismissed by a federal judge in 2011. The group then appealed to the 9th Circuit.

The 9th Circuit noted that this case was similar to another suit before the U.S. Supreme Court, Clapper v. Amnesty Int'l, where government surveillance programs under the 2008 incarnation of the Foreign Intelligence Surveillance Act (FISA) were challenged for Fourth Amendment reasons.

Like the plaintiffs in Clapper, the 9th Circuit demanded proof that the government had surveilled them. Since CCR did not provide that proof, the 9th Circuit affirmed the dismissal of the case.

Can You Ever Successfully Sue Over Surveillance?

Although CCR v. Obama and Clapper were failed attempts to sue the government for violating the Fourth Amendment with their covert surveillance programs, it doesn't mean that all lawsuits are a no-go.

As you may recall from the Watergate scandal, even the president cannot warrantlessly wiretap on U.S. soil, and not even his executive privilege can save him from prosecution.

The current allegations of NSA surveillance of phones and electronic data focus on the same set of laws as those in the Clapper case. The only missing ingredient for a successful lawsuit is a smoking gun, an NSA "Deep Throat," or simply solid evidence that a plaintiff was actually listened in on.

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