Wired has more.
It’s easy to forget these days, but former President George W. Bush’s illegal warrantless surveillance program was never halted by Congress, nor by the Obama administration; it was merely legalized in a 2008 law called the FISA Amendments Act. That means the surveillance of Americans’ international phone calls and internet use — complete with secret rooms in AT&T data centers around the country — is likely still ongoing.
On Monday, a federal appeals court reinstated a key legal challenge to that surveillance: a lawsuit filed by the ACLU and others within hours of the FISA Amendments Act (.pdf) being signed into law. The lawsuit attacks the constitutionality of the legislation, which allows the government to electronically eavesdrop on Americans without a probable-cause warrant, so long as one of the parties to the communication resides outside the U.S., and is suspected of a link to terrorism
The decision by the 2nd U.S. Circuit Court of Appeals means the ACLU, and other rights groups involved in the suit, might get their day in court. “This is a really big victory,” said ACLU spokeswoman Rachel Myers. “The ruling is that you don’t have to prove you’ve been spied on to challenge an unlawful spy act.”
The lower court had ruled that the plaintiffs—the ACLU, Amnesty International, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and others—didn't have standing to bring the case as they couldn't show that they were subject to the spying. In their appeal, the groups argued that "they often work with overseas dissidents who might be targets of the National Security Agency program. Instead of speaking with those people on the phone or via e-mails, the groups asserted that they have had to make expensive overseas trips in a bid to maintain attorney-client confidentiality. The plaintiffs, some of them journalists, also claim the 2008 legislation chills their speech, and violates their Fourth Amendment privacy rights."
From the ruling [pdf]:
T] plaintiffs have good reason to believe that their communications in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct. The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor – i.e., individuals “the U.S. government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,” and “people located in geographical areas that are a special focus of the U.S. government’s counterterrorism or diplomatic efforts.” The plaintiffs’ assessment that these individuals are likely targets of [FISA Amendments Act] surveillance is reasonable, and the government has not disputed that assertion.
The Obama administration almost certainly appeal, and will probably invoke States Secret Privilege yet again, allowing the government to kill the case on the premise that continuing it would threaten national security secrets.