The Fourth Amendment and Government Surveillance

Today’s Supreme Court decision revolved around “standing” (whether anyone was hurt by the law) but it also raises broader issues along the lines that we discussed in class.  Under what circumstances should the government be permitted to eavesdrop on Americans’ telephone calls without a warrant to do so?

Supreme Court Rejects Challenge to Surveillance Law


WASHINGTON — In a 5-to-4 decision that broke along ideological lines, the Supreme Court on Tuesday turned back a challenge to a federal law that authorized intercepting international communications involving Americans.

Writing for the majority, Justice Samuel A. Alito Jr. said that the journalists, lawyers and human rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. Their fear that they would be subject to surveillance in the future was too speculative to establish standing, he wrote.

Justice Alito also rejected arguments based on the steps the plaintiffs had taken to escape surveillance, including traveling to meet sources and clients in person rather than talking to them over the phone. “They cannot manufacture standing by incurring costs in anticipation of non-imminent harms,” he wrote of the plaintiffs.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined the majority opinion.

In dissent, Justice Stephen G. Breyer wrote that the harm claimed by the plaintiffs was not speculative. “Indeed,” he wrote, “it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined his dissenting opinion.

The decision, Clapper v. Amnesty International, No. 11-1025, probably means the Supreme Court will never rule on the constitutionality of the law, a 2008 measure that broadened the government’s power to eavesdrop on international communications. The law, an amendment to the Foreign Intelligence Surveillance Act, was passed after the 2005 disclosure of the Bush administration’s secret program to wiretap international communications of people inside the United States without obtaining court warrants. The electronic spying, intended to help pursue terrorists, began after the attacks of Sept. 11, 2001.

The 2008 law was challenged by Amnesty International, the American Civil Liberties Union and other groups and individuals, including journalists and lawyers who represent prisoners held at Guantánamo Bay, Cuba. The plaintiffs said the law violated their rights under the Fourth Amendment by allowing the government to intercept their international telephone calls and e-mails.

In 2011, a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, ruled for the plaintiffs on the threshold question of whether they had standing.

Judge Gerard E. Lynch, writing for the court, said the plaintiffs had shown that they had a reasonable fear that their communications would be monitored and had taken “costly measures to avoid being monitored.”

The full Second Circuit declined to rehear the panel’s ruling by a 6-to-6 vote.

25 responses to “The Fourth Amendment and Government Surveillance”

  1. Kalyn7 says :

    My opinions about this issue are totally paradoxical- I don’t want the government tapping my phones and invading my privacy, but I do want the government to do everything possible in order to protect the public from terrorist attacks. This is a question we’re going to be dealing with more and more as technology makes its way into every part of our lives. Eventually the court will be forced to make a decision regarding surveillance and the fourth amendment and the American people will have to either risk letting terrorists slip through the cracks or sacrifice a lot of privacy. I’ll get back to you on what I think is the best option.

  2. Jonas1 says :

    I don’t think the government should ever be allowed to tap people’s phones without a warrant. Regardless of the how much safer we’d be or if anyone is actually harmed by the surveillence, the fourth amendment is clear on this issue. There can be no searches without a warrant to do so. I also think these warrantless searches create a dangerous precedent. If people accept losing civil liberties for supposedly better security, where does it end? As Benjamin Franklin said, “He who sacrifices freedom for security deserves neither.”

  3. molly4 says :

    Terrorism is a very real threat, and in this regard, I feel that the ends justify the means. To be honest, I couldn’t care less whether the government listens to my phone calls. Only if I were breaking the law would I have reason to oppose this “invasion of privacy.” Worst-case scenario: I am caught plotting with terrorists via telephone or e-mail, and I go to prison, a fate I certainly would deserve. Best-case scenario: I am caught sending flirtatious e-mails to my best friend’s ex-boyfriend from 8th grade, the government does absolutely nothing about it, and I continue in my raunchy ways. I value my rights as an American citizen, but I am willing to let a few middle-aged agents in cubicles overhear details of my private life if it increases the possibility that they will also overhear evidence of terrorist acts communicated.

  4. roryblock1 says :

    I don’t care if the government hears me on the phone–the only people I talk to on the phone anyway are my parents! Especially knowing that if calls were monitored, it could prevent terrorist attacks! This reminds me of the Watergate scandal–and if Nixon had the right to prevent his people from disclosing the tapes. Yes, they would tell the Court/Congress if he was in fact involved. But did they have the right to listen in on them?

  5. Kunaal7 says :

    While terrorism is a real threat in this country and around the world, I do not think that is can ever be justified for a government official to tap into a phone conversation without a true reason. Meaning, I think that it would be justified for the government to eavesdrop on our telephone calls after they have evidence of a persons wrong doings, but i don’t think that they should monitor phone calls and what we say. Regardless of who we are talking to, it is our privacy, and the government should not take that away from us without a search warrant.

  6. Naiyah1 says :

    While national security is very important to both the government and the people, I think that sacrificing clear rights is not the answer. Whether or not I personally have anything to hide is irrelevant. The fourth amendment clearly states that innocent people cannot be searched without a warrant. The justifications used to take away this right may make sense now, but what about later? Over time, once the threats of terrorism have died down, are we still expected to oblige when the government listens to our phone calls? The point, as Jonas said, is that it is dangerous to sacrifice freedom for security. We have to draw the line somewhere before we give the government too much leeway with our rights (but maybe I’ve just been listening to Q’s conspiracy theories too much).

  7. jackb7 says :

    The idea of government surveillance is a tough one to tackle for me because i understand both the need for it, and what makes it so detestable, for while it has lead to several breaks in stopping and thwarting terrorist activity, it also sets a precedent that should the government should have the ability to monitor your phone calls, what is to stop them from monitoring your every move. This to me goes hand in hand with the idea of using drone strikes on American citizens who have “crossed military lines” for lack of a better word. The second you give the government to kill people at will without due process, we let them, in essence, play the role of God. Considering how badly the wars have gone, i certainly don’t trust them with the lives of human beings. Likewise, if we give the government the ability to monitor our phone calls freely, who is to say how far they could take it?

  8. 4mary says :

    I understand the issue of privacy and as much as I value my own, I have to agree with Rory and Molly on this. It’s not like the government is suddenly going to turn into Big Brother if they can wire tap calls. They’ll look for what they’re looking for and not go beyond that. (If things start heading beyond that obviously we’ll need to re-evaluate) But what do I care if someone far away somewhere listens in on my life? They could probably care less about it and it’s not like it would be shared with anyone (unless there was good reason to share it – which would be good in and of itself). This is like full body scans at the airport. (At a point all privacy issues become very similar) If some TSA agent off in another room is looking at scans of people’s bodies to protect innocent people, how is that a bad thing?

  9. jack7 says :

    It is clear that this is a double-edged sword. I don’t want terrorist cells across America to thrive while we pull in the reins on surveillance, but I also don’t want to have my every movement know to the government. However, I do believe that if you are a law-abiding citizen, you should have no worries about being watched. In this way the positives (thwarting imminent threats) outweigh the negatives (privacy invasion). I don’t have a final opinion on this issue because I don’t know enough about the extent to which surveillance happens, but I think that there is definitely a more concrete route that the government could take to define who poses an imminent threat and requires surveillance.

  10. bump7 says :

    The role of the government is to keep the people safe and protected, and although I feel they should be able to use any resource in order to perform their job to the best of their ability, without specific reasoning/warrants I do not feel they should be able to invade ones privacy. Unreasonable and unwarranted searches give the government too much power over the people and leads to further issues. The government must keep the people safe but they must also give them their space to live and prosper. If the government gives itself the power to search and examine whatever and whenever they want it is telling the people they cannot handle themselves. This will build upon the idea of big brother, and people may go in the other direction of not trusting their government to do the right thing.

  11. BenLev4 says :

    I dont think that the government should be able to tap any phones, as it directly violates the 4th amendment. If something is suspicious, protocol should be followed and a warrant should be awarded. Otherwise, the government should not be wiretapping phones and tracking calls. Some argue that this is an effective way to stop terrorism, and that it is better for the government to be proactive than reactive. For now, that may be true; but where do we draw the line? Allowing government to bypass the fourth amendment will inevitably lead to abuse of power. Some people are saying that they don’t care if the government listens in to their conversations, but I think they are a little too trustworthy of the government. Personally, I don’t want anyone listening onto my conversations and tracking my calls. That is a complete invasion of privacy, even if I am just talking about last night’s tv show.

  12. Tanya4 says :

    After hearing very vocal opinions in today’s class, i have concluded that the government in many cases needs to be able to suspend our “4th amendment” rights. Because terrorism is prevalent, and a rising concern in this country, I think that national security issues DO come before one’s privacy rights (technically the constitution doesn’t talk about the right to privacy, although you could argue that certain amendments are loosely based around privacy). That being said, I also think that the government should have reason to wire tap the people it does. That is, it should not just be a random and blind test. That is inefficient, and unfair. Its a tricky question, and thus the answer is not necessarily clear cut.

  13. langston4 says :

    While I do believe the government should do everything in its power to protect its citizens from threats, especially terrorism, I do believe that phone tapping and monitoring phones is a very tricky subject. While the idea of phone tapping to watch for possible terrorist planning sounds good, my only worry is that it will lead to profiling. For example, if the government is looking for anyone contacting people in rural Pakistan, then everyone who may have relatives or friends out in that are would be singled out as “suspicious”, even if they are law abiding citizens. While some people may think that if they are a law abiding citizen they should have nothing to worry about, its the idea of being tagged for “possible terrorist threat” simply because of this small connection that is problematic for me.

  14. robhrabchak4 says :

    Regarding this specific Supreme Court decision, I think that it is unfortunate that someone has to prove that they were harmed by the bill before it will be considered. Wiretapping phones is clearly a violation of the 4th Amendment, even if some people are not personally disturbed or bothered by this practice. Langston pointed out that individuals could be easily profiled, which denies them the right of equality. Yet due to the highly secretive nature of these searches it would be extremely difficult to prove whether someone suspected was in fact profiled. I don’t think that we should have to wait until the bill is grotesquely abused before its constitutionality can be ruled on.

  15. nicoleb7 says :

    Yes, phone tapping is a complete invasion of privacy, and yes I can understand why people would not want the government to be allowed to do that. But honestly, the government is not looking for details on your life unless you are a threat to the country. So if you aren’t a terrorist, I don’t see why you would really care if the government taps your phones once or twice. I think our national security comes first and if we can cut down on the amount of terrorism by phone tapping the government should be allowed to do it. I can understand why it is a controversial subject, between security and intruding on people’s privacy it is hard to compromise and give both sides what they want.

  16. Nick4 says :

    On one side, I see how this is a complete breach of privacy, but I care more about my safety. If the government taps into everyone’s phone calls, I think there have to be rules. For example, the listeners should only act on terrorist threats. Don’t arrest someone because you overhear a conversation saying that they stole a pack of gum from Wawa. Obviously this idea isn’t going to work, and I think that’s the biggest issue. The government can’t have a legitimate discussion about the legality of phone tapping without an idea on how to make citizens approve of it. Sure, they could just start phone tapping, but without regulations, nobody would be ok with it. I think the government’s main goal should be to make regulations on what and what not they can do.

  17. jenchen1 says :

    Since we’re talking about the 4th Amendment, let’s consider it. Yes, it is definately implied that invasion of personal privacy is a no no. And we all agree that wire-tapping is an invasion, a “search” if you will. Even the 4th Amendment has exceptions. For example, reasonable suspicion, vehicles, school lockers etc. Now, consider security. Though we’re annoyed, we allow TSA to check our bags when boarding planes. The calls mentioned are those international communication. We’re not talking about calling your classmate for homework. If you’re going to make an international call, you should be aware and prepared to be tapped.
    So I see nothing wrong with the way it is right now. I do fear, however, that this power will be abused and violate American’s privacy further in the future.

  18. mattgiannottione says :

    I agree with Jen in that international calls could potentially pose a threat to this nation. If you are doing nothing wrong and committing no crime with your phone call, why be afraid? Why are you not scared when the TSA searches your bag when you made sure that you have no WMD tucked away in there? It is because you are a law abiding citizen and not a terrorist. If you are going to conspire to commit terrorism through an international phone call, it will be tapped. Getting tapped posses no threat to Americans who are simply catching up with a beloved grandmother in Russia. As the world around us evolves, our response to national security threats must also change. The foreseeable problem is that limits must be set for the future. As contradictory as that is, there must be limits if we are to pursue this new form of terrorism prevention. I definitely see how international phone calls can pose a threat, but we must make sure that if the government feels the need to pry to keep us safe that it does not pry too far.

  19. thetuck1 says :

    I think that the government’s ability to tap phones making international calls is a fine measure to take for the sake of national security. I think that perhaps such measures are only necessary during times when a crisis is more apparent, or when there is something specific that the government is hoping to find. Additionally, to tap all sorts of phone calls (both domestic and national) could be a bit excessive. But, as Matt put it, if you have nothing to hide, then you should not be too concerned. The classic question when it comes to controversial issues is: how would you feel if you were in that situation? So thinking of this situation: I honestly do not have anything to hide from the government. If I were making international calls to my friend who lives in Spain and the government tapped my calls, I doubt they’d be very concerned about our conversation. They’d forget what they heard in sixty seconds. So, for the sake of national security, I think tapping phone lines is acceptable.

  20. Emily1 says :

    Although I find it an invasion of privacy to tap phone calls and read emails, I find myself leaning towards the fact that I would rather have my phone calls tapped and be safe from predators and terrorists than feel unprotected. I don’t care who hears my phone calls: they are insignificant and I don’t see why anyone would care. But if violating privacy to a certain extent means that we can catch and stop terrorists, I would definitely approve of it. I think certain phone calls can definitely pose a threat to Americans, and that can be a justifying factor in approving tapping phone calls. If you have nothing to hide from the government, then there should be no opposition to it.

  21. Connor1 says :

    Personally, I don’t see any problem with the laws passed that permit the government from tapping phone calls, intercepting emails, etc. The government’s main focus is to protect the people, and all of their actions regarding privacy are justified. The government doesn’t care about phone calls you have with your best friend concerning private matters in your life, it’s not like those are going to get leaked and your other friends are going to find out; tapping conversations like that are completely irrelevant and people really shouldn’t have a problem with that. The only reason someone should be against government surveillance is if you have something to hide that is illegal. People do not have the right to partake in/facilitate illegal activities, so the government should have permission to do whatever means necessary to protect the people from people who are committing crimes under the table. The government couldn’t care less about our private lives unless they are endangering the lives of other citizens, and in that case i would only hope that the government would legally be able to intervene.

  22. sarahb7 says :

    Personally, I don’t care if the government taps my phone calls, because I’m not hiding anything. The government isn’t going to interfere in our daily lives, nor do they care about what we do as individuals. They only care about stopping terrorism, and if phone tapping at random is an effective way to accomplish this, then I’m all for it. I think that there should be some checks on this system to prevent its abuse, but in this case I believe that safety from terrorism should take precedence over the privacy and security of our mundane phone calls.

  23. iqra07 says :

    Surveillance is difficult to debate because while it can help protect the nation, from terrorists, it can limit people’s protection from the government. Simply because my phone conversations is trivial should not make it okay for the government to listen to them. The government is violating one of my rights, and while the right might not seem highly significant now, what kinds of cases will this set a precedent for? What future decisions will this decision allow the government to make? I think that the Supreme Court’s opinion will open the door to many poor rules that infringe on people’s rights.

  24. andreaj7 says :

    When I tried to answer the question of when the government should be permitted to eavesdrop on Americans’ telephone calls without a warrant, I immediately thought of the News of the World phone-hacking scandal in the UK, when employees of the newspaper News of the World were accused of phone hacking, police bribery, and exercising inappropriate influence in the pursuit of publishing stories. Though this phone hacking was not specifically conducted by the government, it clearly broke the law. And yes, the newspaper employees were not in search of a terrorist, so the right to “privacy” was definitely in question. If we look at phone tapping in the US, where the Bush government actually monitored phone calls for national security, we can see that “privacy” is also in question. The constitution doesn’t specifically reference “privacy”, but aspects of the word are suggested in the Amendments. So when can privacy be compromised? I personally believe that privacy (like this phone-tapping) can be compromised in the effort to protect national security. I wouldn’t mind the phone-tapping as long as my information isn’t broadcasted in any way (like, say, in a newspaper like News of the World). Those who disagree would need to look deeper into the question of the word “privacy” in the Constitution.

  25. sophiae7 says :

    I completely understand both sides of this argument. On one hand, the government should be able to use whatever means necessary to catch terrorists, but it’s also unfair for others privacy to be compromised. I personally believe that the government should be allowed to hack phone calls in order to protect national security. Like others have mentioned, it becomes much more tricky when the government stumbles upon someone having a conversation about how they have broken the law in some respect; even though the government’s objective was to catch terrorists and not misdemeanor criminals. But in order for the government to protect us to the fullest degree, I think we are going to need to give up a little good for the greater good.

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