Excerpted From: Danna Z. Elmasry, Fighting Global Surveillance: Lessons from the American Muslim Community, 55 University of Michigan Journal of Law Reform 885 (Summer, 2022) (197 Footnotes) (Full Document)


DannaZElmasryIn early June 2013, news broke that the United States government was spying on its citizens. Information leaked by former CIA officer Edward Snowden described a surveillance infrastructure of unprecedented scale. 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. 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. 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. 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. 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.

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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.