Fighting Global Surveillance: Lessons from the American Muslim Community

Danna Z. Elmasry* June, 2022

Abstract

The United States government has been spying on its citizens through a massive surveillance infrastructure that is unrestricted to a particular target or suspicion of wrongdoing. The statutory and regulatory authorities responsible for this infrastructure are sprawling and often secret. Built-in limitations and oversight mechanisms are riddled with loopholes or inaccessible due to exceedingly high thresholds. Litigation challenges to surveillance overreach often fail at standing. Under the current doctrine, plaintiffs must show that their own communications have been surveilled by a specific surveillance program. This Note contributes to surveillance reform by proposing a private right of action that sets the requirements for Article III standing in surveillance cases to broaden access to judicial redress for would-be plaintiffs with meritorious claims.

Introduction

In early June 2013, news broke that the United States government was spying on its citizens.¹ Information leaked by former CIA officer Edward Snowden described a surveillance infrastructure of unprecedented scale.² In one example, a secret order from the Foreign Intelligence Surveillance Court required Verizon to surrender daily to the National Security Agency (NSA) enough data on all calls on its network to easily assemble “a comprehensive picture” of who millions of Verizon customers were contacting.³ In another, the “Planning Tool for Resource Integration, Synchronization, and Management” (PRISM) surveillance program let the NSA access the servers of major internet companies—including Google, Facebook, and Apple—to collect people’s search history, emails, live chats, Google Map searches, and file transfers.⁴ The Snowden leaks revealed what this Note calls global surveillance: an immense surveillance infrastructure designed to harvest as much information as possible, unrestricted by a particular target or a suspicion of wrongdoing.

This infrastructure is still in operation. The Snowden leaks inspired minor legislative reform to prohibit bulk collection under the Foreign Intelligence Surveillance Act (FISA) of 1978. But this change was wholly inadequate to the task of reforming global surveillance, in part because it relies on more than one legal authority. In February 2022, partially declassified documents revealed a secret CIA bulk collection program, unknown even to the Senate Intelligence Committee.⁵ While the CIA did not disclose the nature of the program or the type of data it collected, the agency did acknowledge that the program was authorized by Executive Order 12,333.⁶ Between the two of them, FISA and Executive Order 12,333 authorize the massive infrastructure that continues to conduct global surveillance.

Minor legislative reform to surveillance authorities will not cut it. The experience of the American Muslim community, which has long been subject to heightened government surveillance, suggests that accountability through the courts is necessary to fight global surveillance. This Note seeks to contribute to surveillance reform by offering a way for more would-be plaintiffs to bring meritorious legal challenges to government surveillance. Part I examines the legal authorities that facilitate global surveillance: FISA § 702 and Executive Order 12,333. Part II considers the American Muslim community’s long history of heightened surveillance and its litigation victories against surveillance overreach. Finally, because plaintiffs challenging secret government surveillance programs often fail to show standing, Part III proposes a private right of action that would enable more would-be plaintiffs to challenge government surveillance.

I. Legal Authorization of Global Surveillance: FISA and EO 12,333

This Part examines the laws that authorize global surveillance: Section 702 of FISA and Executive Order 12,333.

A. FISA Enables, Rather Than Curbs, Surveillance Overreach

Congress enacted FISA⁷ in the wake of a surveillance scandal. In 1975, after allegations that the CIA had been surveilling anti-war activists, a Senate Select Committee began to investigate abuses of warrantless government surveillance of Americans.⁸ Headed by Senator Frank Church, himself a target of an NSA surveillance operation,⁹ the Church Committee concluded that the government had “conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association.”¹⁰ Speaking about the U.S. government’s ability to “monitor the messages that go through the air,” Senator Church observed that “that capability at any time could be turned around on the American people, and no American would have any privacy left.”¹¹

The Church report shocked the public and propelled Congress to act. FISA represented a compromise between Congress and the executive branch; the Act preserved the executive branch’s power to conduct secret surveillance while imposing statutory restrictions on when such surveillance was permissible.¹² The Act limited the executive branch’s domestic surveillance authority by permitting wiretapping of citizens and non-citizen residents in the United States in foreign intelligence investigations on a showing of probable cause that the target of the surveillance was a “foreign power” or “agent of a foreign power.”¹³ Later amendments to FISA authorized additional means of surveillance, including physical searches in 1994 and pen/trap surveillance and business records production in 1998.¹⁴

FISA continued to expand after September 11, 2001. In the immediate aftermath of the attacks, the PATRIOT Act lowered the threshold for authorizing surveillance.¹⁵ One provision enabled the government to seek authorization for electronic surveillance whose “significant purpose”—rather than simply “purpose”—was obtaining foreign intelligence information.¹⁶ Another provision authorized “an order requiring the production of any tangible things” that are merely “relevant” to an antiterrorism or counterintelligence investigation.¹⁷ Whereas the government used to have to “articulate specific facts to support a reasonable belief” that the target of surveillance “was a ‘foreign power or an agent of a foreign power,’” now it just had to recite the formula of protecting against international terrorism.¹⁸

In 2008, the FISA Amendments Act (FAA) further broadened the scope of FISA surveillance in two important ways.¹⁹ First, the FAA expanded the definition of “foreign intelligence information” to encompass any information related to U.S. foreign affairs.²⁰ Second, the FAA permitted warrantless electronic surveillance of communications between someone outside and someone inside the U.S., so long as the surveillance does not “intentionally target” American citizens and the target of that surveillance is a foreign agent “reasonably believed” to be outside of the United States.²¹ This change, codified in FISA § 702, gave rise to modern programmatic surveillance.

1. Section 702 Represents a Radical Departure From
Traditional FISA Surveillance

Under traditional FISA surveillance, the government seeks a warrant for surveilling a particular person by showing probable cause that they are a foreign power or an agent of a foreign power.²² Section 702 requires nothing so strenuous. Instead of that particularized showing, under § 702, the government files a certification with the Foreign Intelligence Surveillance Court (FISC) to target “persons reasonably believed to be located outside the United States to acquire foreign intelligence information.”²³ The certification asserts that a “significant purpose” of the surveillance is to obtain foreign intelligence information and includes targeting, minimization, and query procedures for the FISC’s approval.²⁴

Section 702 surveillance represents a massive departure from traditional FISA surveillance. Instead of seeking a warrant based on probable cause to surveil a particular target, the government seeks authorization to collect categories of information. ²⁵ And so long as the government is not “intentionally targeting” U.S. persons, it can collect communications conducted inside the U.S.²⁶ As a result, the government can mount global surveillance operations untethered to particular targets or goals and acquire Americans’ communications without a warrant. ²⁷ In short, § 702 facilitates serious surveillance overreach that implicates privacy concerns and the risk of abuse against minority populations.

Section 702 surveillance works in two ways. To conduct “upstream” collection, the government taps into internet or telephone networks via undersea and fiber optic cables and filters passing data to find targeted information.²⁸ To conduct “downstream” collection, which represents the bulk of § 702 intelligence, the government works with internet service providers to obtain data.²⁹ This method is particularly useful because encrypted data become unencrypted when they reach an internet service provider.³⁰ The upshot is hard to overstate. While the NSA refuses to estimate how many Americans’ communications are collected under § 702, a 2011 FISC opinion found that the agency collected “250 million Internet communications . . . the previous year under Section 702.”³¹ Assuming that only ten percent of those communications involved Americans, that still translates to 25 million communications involving Americans collected under § 702 in one year, not including the tens of thousands of purely domestic communications which also get sucked into in the net.³²

2. Section 702’s Limitations and Methods of Redress Fail to Contain Overreach

The FAA prescribes certain limits on electronic surveillance. The government may not seek authorization for a surveillance program that intentionally targets someone within the U.S., targets a U.S. citizen outside the U.S., acquires communications whose sender and recipients are known to be in the U.S., or is inconsistent with the Fourth Amendment or the Constitution.³³ The government’s application must also make reference to “targeting and minimization” procedures designed to reduce the risk of capturing communications of American citizens or people located inside the U.S.³⁴ But in reality, these limits are either undermined by the nature of modern data collection or by the lack of effective redress mechanisms.

The nature of § 702 data collection methods make it difficult to preserve the distinction between domestic and foreign targets.³⁵ Simply by collecting Americans’ Internet traffic abroad, the government creates a presumption of foreignness, which enables “largely unrestrained surveillance on Americans.”³⁶ This is not an abstract loophole. It is widely accepted that surveillance operations aimed at foreigners abroad “inevitably picks up swaths of information about Americans who should enjoy constitutional protections.”³⁷ Information collected under § 702 in this manner can be used to prosecute an American citizen, which further undermines constitutional protections that should attach to an American citizen’s communications.³⁸ Additionally, targeting a person often occurs after their communications have already been intercepted, stored, searched, and shared with other government agencies.³⁹ Taken together, these loopholes hollow out the protections ostensibly baked into FISA and the FAA.

FISA and the FAA envision several limits on the use of § 702, but each comes with problems that undermine its efficacy. The FISC reviews the government’s surveillance program applications to determine whether an application’s targeting and minimization procedures are “consistent with the requirements of [FISA] and with the Fourth Amendment.”⁴⁰ Despite recent legislation strengthening their oversight and capabilities, the FISC and its appellate court are less organs of searching judicial review than rubber stamps for government surveillance.⁴¹ The FISC regularly approves applications riddled with errors ranging from inadequate factual support to missing documentation.⁴² This is both a legal and oversight issue. Because both the FISC and its appellate court are only required to disclose significant opinions,⁴³ the law around the government’s surveillance power, which is replete with broad constitutional questions, is being developed without public scrutiny or oversight.⁴⁴

Additionally, FISC briefing is historically non-adversarial, with only the government making representations.⁴⁵ Recently, the FISC has been required to appoint amicus curiae from a pool of amici when considering “novel or significant interpretations of the law,” but the pool is under the control and oversight of the FISC judges,⁴⁶ and research suggests amici are appointed sporadically.⁴⁷ Perhaps unsurprisingly, the government continues to enjoy an “unparalleled” success rate at the FISC.⁴⁸

Another intended limit on § 702 use is the FISA notice provision. This provision requires the government to give advance notice to an individual if it intends to “enter into evidence or otherwise use or disclose” at trial information “obtained or derived” from electronic surveillance of that person.⁴⁹ But the notice provision only applies to “aggrieved persons,”⁵⁰ which courts have interpreted to mean a person who can prove that they were the target of a specific surveillance operation.⁵¹ In other words, the government is only required to notify someone that they were the subject of surveillance if that person has already proven that they were the subject of surveillance. This provision is of little assistance to plaintiffs looking to establish that their surveillance was unlawful, particularly before any discovery.⁵² The government further evades giving notice by interpreting the provision to attach only during prosecution.⁵³ In practice, the government uses § 702 information throughout investigation and prosecution but avoids the notice requirement by not introducing § 702 information at trial.⁵⁴ Between the courts’ interpretation and the government’s practice, the notice provision is powerless to inform innocent victims of the government’s unlawful surveillance.

Congress’s attempts to reform the FISA process have not produced substantial changes. The USA Freedom Act in 2015, passed in response to the Snowden leaks, prohibited bulk collection of call records, tightened targeting requirements for phone record collection, and reauthorized the PATRIOT Act’s expansive surveillance framework, all in the same legislative breath.⁵⁵ While the pandemic temporarily slowed the PATRIOT Act’s reauthorization in the spring of 2020,⁵⁶ it also stymied attempts to strengthen the PATRIOT Act’s privacy protections. An amendment to the USA FREEDOM Reauthorization Act of 2020 prohibiting warrantless surveillance of Americans’ browsing and search history failed by one vote; at least one Senator was unable to vote for the amendment due to consequences of the pandemic.⁵⁷ Despite substantial information about § 702’s mechanics and its weak privacy protections, Congress has been slow to enact reform.

B. Executive Order 12,333’s Authorization of Large-Scale
Collection is Almost Unchecked

The other major legal authorization for electronic surveillance is Executive Order 12,333.⁵⁸ Issued by President Reagan in 1981, the Order authorizes and regulates electronic surveillance conducted abroad.⁵⁹ When the Snowden leaks turned attention towards FISA and the FISC, a former State Department official urged the public to demand similar scrutiny of the Order, which the NSA has identified as the “primary legal authority” for its electronic interception operations.⁶⁰ Compared to FISA, the public knows relatively little about the programs the Order authorizes. Even the Senate Select Committee on Intelligence has said that it is not “sufficiently” able to oversee activities authorized by the Order.⁶¹

The Order creates “an immense policy regime” overseeing all foreign electronic surveillance not covered by FISA. ⁶² It authorizes the collection of a broad array of foreign intelligence except for information “concerning the domestic activities of United States persons.”⁶³ Specifically, the Order authorizes the collection and analysis of communications, metadata, mobile phone numbers, geolocation, and social networks.⁶⁴ Collection and analysis is not limited to metadata, but extends to the content of communications.⁶⁵ Further, the Order imposes no restrictions on how many communications can be collected and retained.⁶⁶

The Order’s permissive targeting and processing procedures allow for large-scale acquisition and retention of Americans’ information.⁶⁷ With a broad definition of “foreign intelligence” and a presumption that targets outside the U.S. are foreigners, the Order’s targeting procedures permit a very wide scope of authorized surveillance.⁶⁸ The Order’s processing procedures authorize an unprecedented scale of data retention: one authorized program “analyzes all phone calls and metadata exiting a country,” while another acts as a “‘front-end search engine’ for intelligence analysts . . . send[ing] commands to servers connected to the global telecommunications backbone to prioritize, analyze, and store information into NSA databases.”⁶⁹ Once collected, that information—including information from or about Americans—is stored in NSA databases until it is “actively reviewed by a human analyst”.⁷⁰ Taken together, the Order’s broad provisions enable a massive amount of information collection, storage, and retention with little protection for privacy.

C. Conclusion

In the summer of 2013, the Snowden leaks exposed the massive government surveillance infrastructure capturing, storing, and analyzing the information and communications of millions of Americans. The government was spying on its citizens without warrants, without oversight, and without justification.

This surveillance infrastructure rests primarily on two highly permissive legal authorities: Section 702 of the FISA and Executive Order 12,333. Through programmatic surveillance, outdated protections based on geographic location, and permissive and malleable targeting procedures, these authorities produced a global surveillance effort that harvests data from the internet backbone and service providers without a particular target or suspicion of wrongdoing. Despite minimal legislative reform in 2015, the bulk of this global surveillance system remains unchanged.

II. Global Surveillance Test Case: The American Muslim Community’s Experience Fighting Surveillance and its Effects.

FISA § 702 and Executive Order 12,333 created a surveillance infrastructure that has had an outsized impact on the American Muslim community.⁷¹ To better explore the impact of heightened surveillance and successful strategies for curbing surveillance overreach, this Part examines the American Muslim community’s history of surveillance, its litigation victories against government surveillance, and the impact of heightened surveillance on the community.

A. The American Muslim Community has been Targeted for Increasingly Comprehensive Surveillance

Far from being a recent or post–9/11 phenomenon, government surveillance of the American Muslim community has evolved over a long history.

1. Initially, American Muslims were Targeted for Heightened Surveillance Due to Ties to Black Liberation Activism

The nexus of Islam and racial politics defined the beginning of heightened surveillance against the American Muslim community. Many of the first Muslims in America were enslaved Africans brought to work on plantations, and the Black Muslim community grew as it intersected with Black opposition to racial oppression.⁷² Beginning in the interwar period of the 1930s, racial tensions increased, and the nascent FBI began to surveil specific Black Muslim groups for their association with Black activism against white supremacy.⁷³ The FBI’s messaging framed Islam as a “problematic political symbol that deserved to be disciplined through surveillance.”⁷⁴ That surveillance continued through the 1960s, overlapping with the Bureau’s COINTELPRO program.⁷⁵

2. Later, American Muslims were Targeted for Heightened Surveillance Based on Their Perceived Religion, Ethnicity, and Race

Once effectively “othered” as “foreign, disloyal, and imminently threatening,”⁷⁶ American Muslims routinely experienced heightened surveillance during times of crisis. For example, after the 1972 attack on the Munich Olympics, President Nixon authorized the FBI to investigate people of “Arabic background” for ties to terrorism.⁷⁷ Similarly, in the wake of the Iran hostage crisis, President Carter initiated a registration campaign, forcing thousands of Iranians across the country to register with the federal government.⁷⁸ In the 1980s, amid heightened targeting of Palestinians and pro-Palestine activists, President Reagan authorized a plan to detain and intern thousands of Arab and Iranian immigrants at designated sites in Louisiana.⁷⁹ And after the 1990 U.S. invasion of Kuwait, President Bush launched a program to fingerprint all American residents and immigrants of Arab origin.⁸⁰

These surveillance efforts turned up specious information that the government used to prosecute American Muslims. For example, in the late 1990s, the government began prosecuting American Muslims in immigration courts based on secret evidence obtained through surveillance. Misapplying the secret evidence provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Immigration and Naturalization Services (INS) denied bond to Arab and Muslim defendants designated as suspected terrorists; detained them for years (sometimes in solitary confinement); and tried them on evidence the defendants had never seen.⁸¹ Once declassified, the evidence was routinely found to be “hearsay, conjectural, unreliable, or utterly unpersuasive of the government’s charges.”⁸² Nevertheless, the use of secret evidence kneecapped litigants’ ability to obtain justice through the courts.⁸³ The secret evidence provisions were almost exclusively applied to immigrants and residents of Arab or Muslim background.⁸⁴ The only secret evidence case against a non-Arab or Muslim was against an Indian Sikh.⁸⁵ When news about the use of secret evidence came to light in the press, Arab, Muslim, and civil liberties groups pressured Congress to repeal the use of secret evidence in immigration proceedings, but the repeal bill lost support after 9/11.⁸⁶

Registration programs continued after 9/11. Once again, Arabs, Muslims, and South Asians living in America disproportionately bore the brunt of this surveillance expansion. Beginning in 2002, the National Security Entry Exit Registration System (NSEERS) required all male teenage and adult immigrant and permanent resident nationals of twenty-five countries to be fingerprinted and registered or be subject to removal.⁸⁷ Of the twenty-five countries, all but one, North Korea, were majority Arab or Muslim. NSEERS was expanded, without notice, to people whose national origin was a designated country, even if they held other citizenship.⁸⁸ The federal government even repurposed other registration programs to target Arab and Muslim immigrants, using, for example, the Alien Absconder Initiative intended for Latin American immigrants to register some 6,000 men from Muslim-majority countries.⁸⁹

The routine surveillance of American Muslims by the state spawned private-actor copycats. For example, the Anti-Defamation League of B’nai B’rith (ADL) employed a former San Francisco Police Department officer to surveil Arab American Individuals and organizations.⁹⁰ The ADL shared the information obtained through surveillance with Israel, resulting in the arrest of at least one U.S. citizen of Arab descent when he visited Palestine, and with the FBI, triggering the case of the “LA Eight.”⁹¹ In a pre-dawn operation, more than 100 law enforcement officers arrested eight activists—seven Palestinian and one Kenyan—beginning a twenty-year ordeal in which the U.S. failed to get any charges to stick until an immigration judge finally dismissed the case, calling it “an embarrassment to the rule of law.”⁹²

3. After 9/11, the NYPD Targeted American Muslims
Through Global Surveillance

In the wake of the September 11 attacks, the New York Police Department (NYPD) mounted a global surveillance campaign against the American Muslim community.⁹³ The “expansive” program reached from Philadelphia to New Haven, Newark to Queens.⁹⁴ Officers covered more than 250 mosques and businesses, mounting video surveillance cameras across from entrances; collecting patrons’ and congregants’ license plate numbers; spying on sermons and conversations; and infiltrating Muslim student associations (MSAs) at colleges and universities across the Tri-State Area.⁹⁵ In one instance, an officer posing as an MSA member went on a rafting trip to eavesdrop and record how often the students prayed.⁹⁶ The NYPD even surveilled its partners in anti-terrorism work, “including imams who frequently appeared at the Mayor’s side.”⁹⁷ The NYPD program typified global surveillance in that its goal was to obtain as much information as possible. Except for its religious and ethnic frames, the program had no specific target and was not based on a concrete or articulable suspicion of wrongdoing.

This massive effort mobilized numerous forms of surveillance. In addition to undercover officers, the NYPD had informants in mosques and MSAs within a 250-mile radius of New York City.⁹⁸ But human sources were not the only tool mobilized in this global effort. Geo-mapping emerged as a way to reveal patterns in crime scenes, but quickly became a tool for collecting data on specific communities.⁹⁹ The NYPD and the FBI used geo-mapping to collect enormous amounts of data on the American Muslim community, ranging from warrants to sex offender lists to cellular tower data.¹⁰⁰ Agents used these maps to recruit and maintain informants and to plot out the contours of targeted communities.¹⁰¹

By focusing on neighborhoods that were home to clusters of different ethnic, racial, or religious groups, intelligence officials were effectively targeting individuals on the basis of those protected characteristics. This heightened and discriminatory targeting resulted in an “‘extremely pernicious’ practice of ascribing propensity to crimes to people based on their ethnicity or religion.”¹⁰² In one example, the FBI designated Arab-American and Muslim communities in Michigan as potential terrorist recruitment ground on the basis of the community’s religious and ethnic makeup alone.¹⁰³

B. Heightened Surveillance of the American Muslim Community Produced Negative Stereotypes, Bred Self-Censorship, and Stymied Opposition to Surveillance

The American Muslim community’s long history of heightened surveillance produced devastating consequences for the community, and broader ripple effects on the general population.

One consequence of this heightened targeting, which is grounded in the perception of American Muslims as threats to national security, is a body of literature and “expertise” that defines the characteristics of suspicious activity against Muslimness.¹⁰⁴ This literature describes radicalization as a “purely Muslim phenomenon” and imagines an inevitable trajectory for the pious or engaged Muslim, a kind of express train to terrorism.¹⁰⁵ By framing radicalism as an exclusively Muslim problem, this approach ensures that even religiously-neutral radicalism literature is read and applied exclusively against Muslims. ¹⁰⁶ Far from being a fringe perspective held by a small number of theorists, this misguided point of view underpins the approach of police departments across America, including the NYPD.¹⁰⁷

In addition to producing uneven and discriminatory results, this approach generates incoherent policing policies. One guide for assessing radicalism published by the National Counterterrorism Center identifies both “Connection to Group Identity” and “Isolation and Social Exclusion” as indicators of radicalism.¹⁰⁸ Other indicators include wearing traditional Islamic clothing, growing a beard, giving up drinking or cigarettes, and becoming involved in the community.¹⁰⁹ By measuring suspicion against ordinary characteristics of adolescence or pious Muslim behavior, this misguided policy puts the average, visibly Muslim person at an unreasonable risk of unlawful surveillance.

Other consequences of heightened targeting include significantly depressed community engagement and self-censorship.¹¹⁰ In the wake of 9/11, Tri-State Area mosques became tense sites “marred by mutual suspicion” instead of vibrant community spaces that facilitated intimate spiritual development.¹¹¹ During the NYPD surveillance campaign, Muslims in the New York and New Jersey areas reported pervasive self-censorship.¹¹² Political debate, comments on current events, and merely speaking in Arabic or Urdu could attract unwanted attention.¹¹³ Muslim Student Associations put up signs warning members against having political conversations in their meeting rooms.¹¹⁴ The threat of heightened police surveillance inhibited community development and free expression.

Perhaps most insidiously, heightened targeting produces a chilling effect that suppresses not only political discourse, but also the possibility of effective, community-wide opposition to the surveillance itself.¹¹⁵ In this sense, the American Muslim community’s experience is portable to anyone who suspects that they, their communications, and their movements could be the target of surveillance. This suspicion is no longer the sole province of tinfoil-hatted conspiracy theorists. Activists and protestors the world over communicate through encrypted platforms.¹¹⁶ Some American Black Lives Matter protestors take substantial measures to avoid detection by facial recognition software. ^[118]The impact of global surveillance targeting is already percolating through to the mainstream. Luckily, the American Muslim community’s efforts to combat surveillance overreach suggest a way forward.

C. Litigation Victories Show that Courts are Willing to
Check Surveillance Overreach

Time and again, the American Muslim community has prevailed against unlawful and unconstitutional surveillance in court. Both the secret evidence cases and the litigation against the NYPD’s post-9/11 surveillance program demonstrate that courts are willing to enforce due process and equal protection guarantees, even in the heady context of national security.

1. Courts Held that the Use of Secret Evidence Against Defendants Violates their Constitutional Right to Due Process

Beginning in 1995, federal courts began to hold that the use of secret evidence in regular deportation proceedings is unconstitutional under the Fifth Amendment’s due process protections.¹¹⁷ The court’s analysis in Kiareldeen v. Reno is typical of the line of cases that rolled back the use of secret evidence. Hany Kiareldeen was a Palestinian living in New Jersey and managing an electronics store when he was arrested for overstaying his student visa.¹¹⁸ The INS opposed his application for relief, relying on secret evidence proffered by the FBI alleging that Kiareldeen was a member of an unnamed terrorist group with ties to the World Trade Center bombing.¹¹⁹ He remained in detention for nearly two years.¹²⁰

The Kiareldeen court applied the Mathews v. Eldridge procedural due process balancing test, considering “1) the private interest affected; 2) the risk of erroneous deprivation of the interest and the value of additional or alternative procedural safeguards; and 3) the government’s interest in utilizing the procedure.”¹²¹ The court noted that Mr. Kiareldeen had been removed from his home and family and “denied rights that ‘[rank] high among the interests of the individual.’”¹²² The risk of erroneous deprivation was high because without knowledge of the evidence against him, it was nearly impossible for Mr. Kiareldeen to defend himself.¹²³ The court went further, calling the use of secret evidence “a one-sided process by which the protections of our adversarial system are rendered impotent.”¹²⁴ In other words: “It is difficult to imagine how even someone innocent of all wrongdoing could [defend himself against secret evidence].”¹²⁵ Finally, the court laid into the government’s interest in using secret evidence, noting that “even the government does not find its own allegations [in this case] sufficiently serious to commence criminal proceedings.”¹²⁶

The Kiareldeen opinion and others like it were important for several reasons. First, they affirmed noncitizens’ liberty interest in staying in the U.S. and held that this interest is protected by the Due Process Clause of the Fifth Amendment.¹²⁷ Second, they excoriated the underpinning logic of secret evidence and emphasized its incongruity with the adversarial system. And third, they demonstrated that courts are necessary to fight government surveillance, particularly against minority groups. Political pressure and public outcry were not enough to move the needle; after 9/11, support for repealing AEDPA’s secret evidence provisions evaporated.¹²⁸ In that contentious climate, only federal courts were willing to address the absurdity of these provisions, their devastating impact on due process, and their selective deployment against Arab and Muslim defendants.

Courts also played an instrumental role in questioning the “reliability of government processes initiated and prosecuted in darkness.”¹²⁹ In open court, a plaintiff can hold the government accountable to the foundational promises of the Constitution—in this case, due process protections for “citizens and resident aliens alike.”¹³⁰ These cases also revealed how much the secret evidence provisions were abused. The provisions were not used pursuant to their statutory authorization, nor was their use limited to individuals who posed a threat to national security.¹³¹ Without judicial redress, American Muslims would have had to rely on the court of public opinion, which was unlikely to look favorably on their plight.

2. Litigation Against NYPD Global Surveillance Pushed the
City to Reform its Policing Policies

Courts similarly constrained the NYPD’s covert global surveillance program. The program was common knowledge within the American Muslim community, which was alert to the presence of informants and undercover officers and aware of the NYPD’s “widely publicized” surveillance reports.¹³² But it was not until the Associated Press broke the story in 2011 that the program’s purpose, scope, and methods became known.¹³³

On the back of that reporting, a group of advocates sued the City of New York.¹³⁴ The plaintiffs in this case argued that the NYPD intentionally discriminated against the American Muslim community by targeting its members for surveillance using religion as a “proxy for criminality.”¹³⁵ The plaintiffs in this case argued, in part, that the surveillance campaign’s failure was proof of its discriminatory nature.¹³⁶ In a separate case, the Assistant Chief of the NYPD Intelligence Unit had testified that the surveillance campaign “never led to a single lead or investigation.”¹³⁷ In other words, the fact that the program never produced a single criminal lead proved that it was not based on a reasonable suspicion of wrongdoing.¹³⁸ The District Court dismissed the suit, finding that the plaintiffs lacked standing and had failed to state a claim.¹³⁹ Instead of discrimination, the court reasoned, the “more likely explanation” for the surveillance was “a desire to locate budding terrorist conspiracies.”¹⁴⁰ The Third Circuit reversed, finding injury sufficient for standing in the “indignity” of the government creating special burdens on the basis of religion.¹⁴¹ The court then applied a heightened standard of review and found that the plaintiffs plausibly alleged intentional discrimination based on religious affiliation.¹⁴² The Third Circuit rejected the City’s national security and public safety concerns and, citing Korematsu, noted that “it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights.”¹⁴³

The City settled, committing to several important policy changes. In addition to agreeing not to engage in suspiciousness surveillance on the basis of religion or ethnicity, the City agreed to attend a public meeting with the plaintiffs, pay damages for lost income as a result of the surveillance, and solicit plaintiff input to a “first-ever” Policy Guide, which would govern the Intelligence Unit’s activities and be publicly available.¹⁴⁴ Although the litigation forced the City to make significant concessions, it was clear that the American Muslim community in the Tri-State Area would have had a harder time fighting unlawful global surveillance without judicial recourse.¹⁴⁵

D. Conclusion

Before September 11, 2001, American Muslims were stereotyped and vilified during times of national crisis.¹⁴⁶ After 9/11, they were considered “a presumptive threat to the nation’s security.”¹⁴⁷ This extreme othering prevailed over due process, effectively stripping American Muslims of their right to a presumption of innocence until proven guilty.¹⁴⁸ As a test case for global surveillance, the choice of community made sense: society is more willing to accept aggressive measures when they target “small and politically disempowered groups.”¹⁴⁹ But, as some prescient commentators noted as far back as 2002, aggressive measures have ripple effects.¹⁵⁰ Global surveillance against a vilified community without suspicion bred global surveillance against everyone without suspicion.

Precluded from wielding political influence by their religious and ethnic identities, the plaintiffs in the NYPD litigation turned to the courts to enforce the legal protections guaranteed to them under the U.S. Constitution. Although they ultimately prevailed in the Third Circuit, the plaintiffs initially lost in the District Court for failing to establish standing. The current interpretation of standing doctrine poses one of the most serious hurdles for surveillance plaintiffs. Part III proposes reforming standing doctrine to allow more eligible plaintiffs to challenge global surveillance.

III. Reforming Standing Doctrine for Surveillance Cases Through Federal Legislation: A Political and Judicial Solution

The American Muslim community’s litigation victories against government surveillance suggest a way forward through the courts. But legal challenges to global surveillance often falter at standing. This Part proposes a private right of action defining the requirements for Article III standing in surveillance cases so that would-be plaintiffs with meritorious claims can proceed to the merits.

A. Legal Challenges to Global Surveillance Often Fail to Establish Injury-in-Fact and Causation Sufficient for Standing

In a series of cases beginning in 2006, civil liberties organizations filed suits challenging FISA § 702, Executive Order 12,333, and their attendant surveillance programs.¹⁵¹ These challenges were largely unsuccessful because courts imposed a standing threshold that plaintiffs could rarely meet. To satisfy Article III standing, a plaintiff must (1) establish an injury-in-fact that is concrete and particularized as well as actual and imminent; (2) show that the injury is fairly traceable to the challenged action; and (3) show that the injury is redressable with a favorable decision.¹⁵² The lower court decisions culminated in the Supreme Court’s ruling in Clapper v. Amnesty International, which exemplifies the standing problems for plaintiffs challenging government surveillance.¹⁵³

In Clapper, a collection of civil rights, media, labor, and legal organizations filed suit on the day the FISA Amendments Act (FAA) was enacted, arguing that the FAA was unconstitutional and seeking a permanent injunction.¹⁵⁴ The plaintiffs argued two injuries. The first was a future, Fourth Amendment injury: an “objectively reasonable likelihood” that their communications with clients would be intercepted under § 702 based on the clients’ locations and personal characteristics.¹⁵⁵ The second was a present, First Amendment injury: as a result of the likely interception of their communications, and pursuant to their professional obligation to keep certain communications confidential, the plaintiffs had stopped communicating by phone and email and taken “costly and burdensome measures” to protect the confidentiality of certain communications.¹⁵⁶ In other words, the plaintiffs experienced a chilling effect because they believed that their communications would be subject to surveillance.

The Court found that the plaintiffs had failed to establish standing for their future, Fourth Amendment injury because their “highly speculative” claim fell far short of the majority’s “certainly impending” requirement.¹⁵⁷ The Court invoked an attenuated chain of causation to hold that plaintiffs had not shown: 1) that the government intended to target their communications with their clients; 2) that it would do so under § 702; 3) that the FISC would authorize this proposed surveillance program; 4) that the government would succeed in intercepting the communications; and 5) that plaintiffs would be party to the intercepted communications.¹⁵⁸ The Court held that without facts to prove this full chain, plaintiffs failed to show that their future, threatened injury was “certainly impending” and that it was fairly traceable to the FAA.¹⁵⁹

Unpersuaded that the plaintiffs’ future, Fourth Amendment claim of surveillance was sufficiently concrete, the Court refused to consider their present, First Amendment injury of chilled speech and costs sustained to protect the confidentiality of their communications.¹⁶⁰ Justice Alito minced no words: “Because they do not face a threat of certainly impending interception under § 1881a [§ 702], their costs are simply the product of their fear of surveillance, which is insufficient to create standing.”¹⁶¹

The Court made much of the fact that plaintiffs’ “highly speculative” claims rested on “no actual knowledge of the Government’s [§ 702] targeting practices.”¹⁶² This is, of course, exactly the problem with challenges to secret government surveillance programs: their details are not frequently publicized and notice provisions are enforced in exceedingly narrow circumstances.¹⁶³ The Court’s decision in Clapper made it impossible for a plaintiff to proceed to discovery and obtain information that could substantiate plausible allegations of unlawful surveillance.

If the Court thought it had laid the matter to rest, it was wrong. Some three months later, the Guardian reported on the secret FISC order requiring Verizon to turn over all call records to the NSA on a daily basis.¹⁶⁴ This information offered a path forward for Fourth Amendment challenges to FISA § 702 and Executive Order 12,333 surveillance. Relying on the leaked documents, victims of the leaked surveillance programs argued the Fourth Amendment injury that their communications had been unlawfully intercepted by the government.¹⁶⁵

In one such challenge to the NSA’s bulk collection of telephone metadata in cooperation with Verizon, a District Court found that the plaintiffs’ status as Verizon customers during the period of the FISC order was “strong evidence” that their data had been collected. ¹⁶⁶ The more information plaintiffs could furnish, the better. The Ninth Circuit was persuaded that a class of AT&T customers in San Francisco alleged “concrete harms,” in part because they could describe in detail the specific facility and equipment the NSA used to obtain AT&T’s telephone and internet records.¹⁶⁷ Similarly, the Second Circuit clarified that collection was sufficient for standing and that a plaintiff did not have to prove that the government reviewed the collected information to establish injury.¹⁶⁸ The Second Circuit then considered the merits of the NSA’s telephone metadata collection program, holding that the agency exceeded its statutory authority under FISA.¹⁶⁹

This post-Clapper line of cases offers two important takeaways. The first is that federal courts are willing to grant standing for Fourth Amendment injuries if plaintiffs can show that their own communications were collected by the government. The second is that once plaintiffs establish standing, they have a chance at a favorable merits decision.¹⁷⁰

B. A Private Right of Action Will Offer More Would-Be Plaintiffs Relief Without Opening the Floodgates to Frivolous Litigation

The problem is, of course, that not every unlawfully surveilled plaintiff can show that their own communications were collected by the government through specific surveillance programs. Government surveillance is secret by nature and statutory notice provisions, where they exist, are weak. The size and scope of the surveillance infrastructure revealed through the Snowden leaks suggest that we have glimpsed only a small part of a much bigger iceberg. Throwing out plaintiffs with plausible allegations for failing to meet an artificially high standing threshold shields the government from judicial scrutiny and denies plaintiffs their day in court. Clearly, reform is required.

This Part proposes a private right of action that would enable more meritorious challenges to government surveillance than the current doctrine provides for. The private right of action would grant standing to any person who (1) has a reasonable fear of surveillance based on the acknowledged activities of the government, and (2) may reasonably incur costs to mitigate or avoid harm as a result of that fear. While the proposed private right of action would help would-be plaintiffs in
general, it would be especially helpful to minority plaintiffs, including American Muslims.

1. Congress Has the Authority to Create This Private Right of Action.

It is well-established that Congress can make certain harms the basis for legal action.¹⁷¹ Under the Court’s recent decision in TransUnion LLC v. Ramirez, Congress may elevate for judicial cognizance only those harms that have “a close historical or common law analogue.”¹⁷² Physical and monetary harms easily qualify, as do certain intangible harms, including “reputational harms, disclosure of private information, and intrusion upon seclusion.”¹⁷³ Rather than create a new justiciable harm, this Note’s proposed private right of action offers a different way to assess a longstanding basis for legal action.

Both the common law and the Constitution recognize harms relating to the invasion of privacy. For example, the common law tort of intrusion upon seclusion is defined as the intentional intrusion (physical or otherwise) “upon the solitude or seclusion of another or his private affairs or concerns.”¹⁷⁴ This includes opening a person’s mail, wallet, and bank accounts.¹⁷⁵ Liability for such conduct attaches even without publication of the private information.¹⁷⁶ Such a definition clearly includes surveillance programs that collect private information, whether metadata or content. This conduct is also clearly covered by the Fourth Amendment’s prohibition on unreasonable search and seizure.¹⁷⁷ The Court has long recognized that the Fourth Amendment protects people’s privacy from governmental intrusion, including across modern forms of private communication.¹⁷⁸ Accordingly, it is well within Congress’s authority to create the proposed private right of action, which merely offers a different way to assess an established harm.

Additionally, rather than apply a new standing test to future threatened injuries, the proposed private right of action applies the Court’s existing standard. The proposed standard’s “reasonable fear” language and focus on costs combine two of the Court’s standing tests for future injuries. In footnote five, the Clapper court noted that plaintiffs may show standing based on a “substantial risk” of harm that prompts them to “reasonably incur costs to mitigate or avoid that harm.”¹⁷⁹ The Court applied that standard in Susan B. Anthony List v. Dreihaus, holding that the petitioner organization had standing because it showed a substantial risk that the Ohio Elections Commission would undertake enforcement proceedings against it based on the Commission’s history of past enforcement and the organization’s stated intentions to continue its challenged conduct.¹⁸⁰ The Court has also applied a “reasonable fear” test to assess plaintiffs’ claims of future harm.¹⁸¹ In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., the Court applied a “reasonable fear” standard to find that a group of environmental organizations had standing to seek injunctive relief against a hazardous waste incinerator facility with a record of dumping toxic chemicals in unlawful quantities into a local river.¹⁸² Both the “substantial risk” and “reasonable fear” standards invite a court to consider the plaintiff’s context in assessing the likelihood of the alleged injury and its harms. By combining “reasonable fear” with incurred costs, the proposed standard aims to encourage a more holistic injury-in-fact analysis that weighs both the risk of the harm as well as its magnitude.¹⁸³ In this way, the proposed standard would admit would-be plaintiffs with meritorious claims to a merits analysis, rather than punishing them for failing to prove facts about secret government surveillance programs.

2. The Proposed Standard is Better Suited to the Surveillance Context, Would Benefit Minority Communities, and Would Bolster the Government’s Legitimacy

The proposed standard confers standing on would-be plaintiffs with meritorious claims while still imposing reasonable bounds on who may bring suit. It does so in two ways. First, it establishes a route to standing for harms precluded by the “certainly impending” standard. Under the proposed standard, a plaintiff could show standing for present, First Amendment injuries by focusing on the chilling effect of surveillance (reasonable fear) and the attendant costs such a chilling effect might produce (reasonably incurred costs). This approach is grounded in an older, established tradition of First Amendment jurisprudence that imposed a less restrictive standard of justiciability and refused to balance national security against constitutionally protected speech.¹⁸⁴ Plaintiffs could also show standing for future, threatened Fourth Amendment injuries because the proposed standard’s “reasonable fear” prong is more easily satisfied than “certainly impending,” especially before discovery. A court might find fear reasonable by looking to social, historical, or political facts, including the characteristics of the plaintiff, the nature of the targeted communication, or the admitted activities of the government. While the proposed standard invites context, it avoids exposing courts to a deluge of claims by binding the standing showing to admitted activities of the government. This creates a zone of inference around acknowledged activities that ensures such challenges are rooted in commonly agreed-upon facts.

Second, the proposed standard is more likely to admit surveillance plaintiffs with meritorious claims to a merits analysis than the “certainly impending” standard because it more accurately fits the surveillance context.¹⁸⁵ The requirement that a plaintiff show that their own communications were collected comes from the foundational case of Rakas v. Illinois.¹⁸⁶ But the stark differences between Rakas and a surveillance challenge should preclude importing the Rakas test into the surveillance arena. Rakas involved the narrow context of criminal defendants seeking to suppress evidence obtained during a car search where the defendants owned neither the evidence nor the car.¹⁸⁷ In denying the
defendants’ motion, the Court held that Fourth Amendment can be asserted only by the individual “whose own protection was infringed by the search and seizure.”¹⁸⁸ Whereas Rakas involved a challenge to a specific search or seizure clearly targeting a discrete set of people, Clapper and its ilk challenge global surveillance programs whose programmatic nature and permissive targeting procedures ensure that they are not aimed at any specific person, and whose status as national security tools ensure that they are shrouded in secrecy.¹⁸⁹ Rather than rely on an inappropriate analogy to physical searches, the proposed standard captures the real dynamics of surveillance and makes them grounds to show standing. In doing so, the proposed standard will more accurately identify meritorious challenges to global surveillance.

The proposed standard would also be a boon to minority communities, especially the American Muslim community. In Friends of the Earth, the Court found that the plaintiffs’ fear of toxic pollution was reasonable, given the defendant’s history of repeatedly polluting the river. ¹⁹⁰ A court applying the proposed standard could similarly consider important contextual questions precluded by the “certainly impending” test. Does the government have a history of surveilling people who share that plaintiff’s background, including race, religion, ethnicity, national origin, sexual orientation, gender identity, or political ideology? Is the plaintiff a member of a community stigmatized by the current socio-political climate? Could the plaintiff reasonably be the target of acknowledged surveillance programs? These questions are particularly important for minority plaintiffs because they invite the court to consider multiple layers of context that more accurately describe the dynamics around heightened government surveillance than a test that only considers hard proof.

A final benefit of the proposed standard is that it bolsters the government’s legitimacy and the separation of powers. Empowering plaintiffs to challenge government surveillance ensures that the government is held to its own constitutional obligations. The proposed standard also upholds the separation of powers by maintaining the courts’ check on the political branches through judicial review of global surveillance. Finally, the proposed standard advances democratic principles by putting the burden on Congress rather than the courts to decide who has standing to challenge surveillance programs. As a national security tool, surveillance is a touchy political subject. Judges ruling one way or the other are subject to accusations of offering the government impunity for its abuses or robbing the nation of essential defense mechanisms. By having Congress set the standing requirements for surveillance challenges, the proposed standard relocates accountability for surveillance programs from the courts to the political branches.

There is a rich body of literature suggesting reforms to surveillance law. But this Note’s focus on the American Muslim community suggests a need for a broad, political solution. Statutory amendments to FISA—including to the notice provision,¹⁹¹ the FISC,¹⁹² or the targeting procedures¹⁹³—would have no effect on the surveillance programs authorized by non-FISA authorities, including Executive Order 12,333. Increasing the government’s reporting requirements¹⁹⁴ or empowering internal civil rights offices¹⁹⁵ will not produce the intensity of external pressure necessary for change. And while many of these reforms are academic in nature,¹⁹⁶ the proposed standard is practical. Though a citizen suit provision can be controversial, the proposed standard’s focus on fighting surveillance abuse could inspire a bipartisan coalition spanning progressives advocating for minority rights and conservatives concerned with privacy and government overreach. Rather than haggle over another surveillance reauthorization bill, Congress should take meaningful action and empower would-be plaintiffs to hold the government to its constitutional promises.

Conclusion

Legal challenges to global surveillance are stymied at standing. Most plaintiffs lack standing because they cannot show that their communications were collected by secret surveillance programs. But courts are crucial partners in the fight against global surveillance because they check the political branches. This role is especially important to plaintiffs from minority communities that do not wield political power.

To enable more would-be plaintiffs with meritorious claims to survive the standing inquiry, Congress should create a private right of action that defines the injury and causation required for surveillance challenges. Returning to a “reasonable fear” standard for future threatened injuries would more accurately capture the dynamics of surveillance while limiting challenges to those based on acknowledged governmental activities. Under this standard, plaintiffs would be free to allege chilling effects as present, First Amendment injuries and future, Fourth Amendment injuries. The proposed private right of action would help force a more complete reckoning of the widespread surveillance abuses conducted under FISA and Executive Order 12,333 and spur reform to avoid future surveillance abuse.

* J.D. Candidate, University of Michigan Law School, 2022. Thank you to Professor Leah M. Litman, Professor Brenda Abdelall, Julie M. Moroney, Richard Zhao, and Becca Rogers for making this a better paper and encouraging me along the way.