More than seven years after President George W. Bush signed a law authorizing warrantless surveillance of international communications, a federal appellate court heard arguments challenging the 2008 law for the first time.
Congressed passed the FISA Amendments Act in the wake of revelations that the Bush administration was wiretapping all Americans’ transnational communications. Rather than reigning in the program, Congress effectively legalized it – providing legal immunity to the phone companies involved, and allowing the government to conduct surveillance without a court order, as long as the “target” was a foreigner living overseas.
In 2013, documents from by NSA whistleblower Edward Snowden revealed that the government cites the law as the legal authority for its PRISM and Upstream programs – which collect Americans’ emails and browsing histories with individuals and websites hosted overseas.
Courts have previously dismissed multiple lawsuits by the ACLU and Electronic Frontier Foundation that challenged electronic mass surveillance, ruling that the plaintiffs lacked standing to sue because they could not prove their communications were being collected by the NSA’s secret programs.
But on Wednesday, lawyers for the ACLU and Electronic Frontier Foundation argued as “friends of the court” before an appellate court in Oregon, challenging NSA surveillance in the case of Mohammed Mohamud. Mohamud, a Somali-born, naturalized American citizen, was convicted in 2012 for trying in 2010 to bomb a Christmas tree lighting ceremony in downtown Portland.
The FBI had used the NSA’s databases to monitor Mohamud, but despite repeated requests from the defense, the government withheld information about warrantless surveillance during discovery. The Department of Justice only provided notice of special surveillance after Mohamud was convicted.