standing

U.S. District Judge Jeffrey White of the Northern District of California has ruled that a group of AT&T customers haven't been able to show they have standing to show that their Fourth Amendment rights were violated by alleged surveillance of all of their Internet communications, The Recorder's Ross Todd reports. Even though a retired AT&T technician Mark Klein reports that the the company's Internet traffic is routed to a secret room controlled by the government, the judge "found that Klein could not establish 'the content, function, or purpose of the secure room at the AT&T site based on his own independent knowledge' and that lawyers challenging the program under the Fourth Amendment hadn't offered enough admissible evidence to support standing."

Jeffrey Vagle, writing in Just Security, says that a recent decision from U.S. District Lucy Koh could strengthen the positions of plaintiffs seeking standing to challenge government surveillance. Courts have consistently ruled that plaintiffs don't have standing to challenge government surveillance, he notes, even though "research has long shown that even the mere awareness of government surveillance, under which an individual could reasonably expect herself to be observed, can yield very real chilling effect injuries, including self-censorship and an increased reluctance to associate with certain people or groups. Foucault would, of course, argue that this is the entire point of surveillance."

Koh ruled in a case involving a data breach at Adobe that the plaintiffs had standing to bring their claims because they need only show a "'substantial risk that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.'" The reasoning in Koh's decision "may be a sign that future surveillance harms will soon be recognized as an 'injury in fact,'" making it easier for plaintiffs to assert standing and keep pursuing their cases in court, Vagle said.

The U.S. Supreme Court is being asked to consider whether the Animal Enterprise Terrorism Act chills animals rights demonstrations, writes Jamie Schuman of Supreme Court Brief (the federal law prohibits anyone from intentionally causing the loss of money or property to an institution using animals). While the court ruled in Clapper v. Amnesty International that harm must be "certainly impending" for plaintiffs to get standing, the Center for Constitutional Rights, counsel for the five animal-rights activists bringing the challenge, argues the activists have standing because they have an objectively reasonable fear that the government will use the law to punish their speech, Schuman further reports. CCR wants the Supreme Court to grant certiorari, vacate the lower court opinion and remand the case without oral argument as the high court did in another pre-enforcement challenge to a criminal statute. The justices declined to apply Clapper in the case, Schuman also reports.

Parties in litigation have a duty under federal court rules not to destroy evidence. This obligation may be leading the National Security Agency to expand its phone call metadata program in order to preserve evidence as litigants like the American Civil Liberties Union and the Electronic Frontier Foundation sue to stop the surveillance of most of the phone calls made in America, the Wall Street Journal reports. No final decision has been made by the NSA yet, but governmental lawyers believe the obligation not to destroy evidence would require the practice of destroying phone records older than five years, WSJ reports. One source told the WSJ that, if the information was retained, it would be held only for the purpose of litigation. Deleting the data could mean that parties would lose their legal standing to pursue their cases.

Gigaom reports on a petition filed by several major media companies, including The New York Times, Politico and Bloomberg, against the Foreign Intelligence Surveillance Court decision that the Media Freedom and Information Access Clinic at Yale Law School does not have standing to seek access to the court's decisions authorizing the National Security Agency to collect millions of phone and e-mail records. Among other arguments, Gigaom reports "the media companies also point out that they have fewer resources to defend free speech and civil liberties issues in court, and must rely on newer groups like the Yale law clinic to help lift a legal torch they carried for most of the 20th century: 'while [the media companies] feel that news of their ‘death’ has been greatly exaggerated, shrinking budgets at large media companies have inevitably meant a drop-off in First Amendment litigation from those outlets.'"