6th Circuit: ACLU v. NSA Lacks Standing

^{Background: The Fourth Amendment}

The 6th Circuit Court of Appeals has ruled that the ACLU lacks standing to pursue a case against the National Security Agency with respect to President Bush's warrantless surveillance program. From Judge Alice Batchelder's majority ruling:

[T]he Supreme Court has made clear that Fourth Amendment rights are "personal rights" which, unlike First Amendment rights, may not be asserted vicariously ...

The plaintiffs do not, and cannot, assert that any of their own communications have ever been intercepted. Instead, they allege only a belief that their communications are being intercepted, based on their own assessment of their overseas contacts as people who are likely to fall within the NSA's broad, public description of its targets. As acknowledged by plaintiffs' counsel at oral argument, it would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs themselves have been subjected to an illegal search or seizure.

It is worth noting that the 6th Circuit ruling does not address the program's constitutionality. It is narrowly written to address the question of standing.

The ACLU leadership has not decided whether or not to appeal the case to the U.S. Supreme Court. It is unlikely that the Court would be any more sympathetic to their claim, as the ACLU presumably chose a 6th Circuit venue because it was the court of appeals where they had the highest probability of success.

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• ACLU v. NSA: What Happens Next?