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Appeals court denies rehearing of foreign wiretap challenge

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  1. Prior Restraint
A federal appellate court recently declined to further consider an earlier ruling that journalists and others are sufficiently harmed by…

A federal appellate court recently declined to further consider an earlier ruling that journalists and others are sufficiently harmed by the U.S. government’s amended international surveillance law, which provides broader surveillance power with less court oversight, and therefore have standing to challenge it.

The U.S. Court of Appeals in New York (2nd Cir.) on Wednesday denied by a close margin the federal government’s request that the full appellate court hear the case of Amnesty International USA v. Blair. A collection of “attorneys, journalists, and labor, legal, media, and human rights organizations” brought suit challenging the loosened judicial oversight and expanded surveillance authorization given to the government’s executive branch by the 2008 amendments to the Foreign Intelligence Surveillance Act of 1978. Specifically, the amendments are concerning to journalism advocates who believe they violate the constitutional rights of journalists to gather news by the use of confidential sources.

The U.S. District Court dismissed the plaintiffs’ case, concluding they failed to demonstrate that the challenged statute had personally caused them a legally sufficient injury.

The plaintiffs appealed. The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief on behalf of the plaintiffs in the appeal, arguing that the 2008 amendments infringed the First Amendment newsgathering and association rights of journalists.

A three-judge panel of the appellate court overruled in March the trial court's order, holding that the plaintiffs provided sufficient evidence that their professions led them to communicate with clients, sources and other individuals who were likely to be the targets of surveillance, and they had taken reasonable but costly steps to protect their communications as a result.

The case will now return to the federal trial court for further proceedings, unless the government asks the U.S. Supreme Court to hear it.