2013 was the year that brought us the NSA spying scandal, thanks to Edward Snowden. 2014 may be the year that brings us answers about what the NSA was doing, thanks to the American Civil Liberties Union.
Today, the ACLU filed a lawsuit that if successful, would require the NSA to disclose the details of their spying program, under the parameters of the Freedom of Information Act (FOIA).
The two sides of the argument are anything but clear. The ACLU is filing in regards to Act 12333, signed in 1981, which allows surveillance of foreign targets. The ACLU is claiming that the actions taken by the NSA go beyond what is allowed by the Act 12333. This is just the latest in multiple ACLU lawsuits agains the NSA and other related government agencies and departments. Other lawsuits have included arguments that the NSA spying in unconstitutional under the First and Fourth amendments, or that it goes beyond what is allowed by the Patriot Act.
The government has obviously not lain out a public defense yet, but there has been speculation about how this lawsuit will fare. One of the ways that the government might address the controversy is to emphasize a long history of the third party doctrine. The third party doctrine was born out of a few different Supreme Court cases, originally Smith v. Maryland and United States v. Miller. In the Miller case regarding government access of a citizen’s bank account, the Supreme Court stated,
The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
Essentially, this means that our right to privacy does not guarantee our privacy from warrantless searches if the information has been provided to third-parties on a voluntary basis. This third party doctrine was obviously much different before our constant use of technology. Now, almost everything we do online can fall under the third party doctrine–meaning that almost everything we do is hypothetically fair game for the NSA. Another way in which the government could defend their actions could be a Patriot Act based argument.
Of course, we don’t know if these arguments, or something completely different, will be how the Government defends their actions in court, or even if it will make it that far. A spokesman for the Justice Department has stated that the government plans to respond to the lawsuit in court. Given the amount of similar lawsuits by the ACLU that have been rejected and are now up for appeal, this could very well lead to a very public Supreme Court battle that will decide the future of government oversight through electronic means.
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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.
Featured image courtesy of [National Security Agency via Wikipedia]