December 19, 2013
(Editor’s note: Throughout December, we’ll be looking at the top 20 legal events of 2013, as chosen by the Legal Solutions editorial staff.)
Edward Snowden’s government surveillance leaks
Back in June, Edward Snowden, a former Central Intelligence Agency (CIA) employee and former National Security Agency (NSA) contractor, disclosed secret U.S. government surveillance programs of a massive scale.
Although U.S. officials have admitted that they may never know the full extent of what Snowden extracted from government computers before fleeing the country, his revelations thus far have caused widespread distress and anger. These revelations include massive Internet surveillance programs that collect a wide range of personally-identifiable information from individuals both living in the U.S. and abroad. Snowden’s leaks also uncovered programs that collect U.S. and European telephone metadata.
In the face of these revelations, two individuals sued the government challenging the constitutionality of these surveillance practices. Earlier this week, a federal judge granted a preliminary injunction against the government to stop these data collection programs (but stayed its enforcement pending appeal).
Whether this and other similar lawsuits are successful in ending these surveillance programs remains to be seen. However, if one of them manages to accomplish this Herculean task, it would be thanks in no small part to the disclosures made by Snowden – without which the public may never have discovered the existence of these surveillance programs.
In King, decided on June 3, 2013, the Supreme Court answered the question, “Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?”
In ruling five to four, the Court resolved that question in the affirmative. You can read more about the case in this post, but here’s the short version:
Maryland has a law that requires all arrestees in valid police custody for a serious offense to provide a DNA sample, which is obtained through a buccal swab applied to the inside of the cheeks. One such arrestee, Alonzo King, had a DNA sample taken, and, after it was uploaded to the Maryland DNA database, it was matched to the suspect in an unsolved 2003 rape case.
King was tried and convicted for the rape, which he appealed on the grounds that the DNA collection at the time of the arrest for the unrelated crime was unconstitutional. The case eventually made it to the Supreme Court, which ruled against King.
King, along with the related Missouri v. McNeely, are both very significant rulings relating to forcible DNA sampling by law enforcement – perhaps two of the most significant since 1966’s Schmerber v. California.
As stated above, McNeely – decided April 17, 2013 – is the counterpart to King. Both cases involved forcible DNA sampling by law enforcement, but, unlike King, the Supreme Court sided with the defendant in McNeely.
As noted in this post, however, the only justice who changed positions between King and McNeely was Justice Kennedy, indicating not only that Kennedy remains one of the most influential members of the Court, but also that the legal questions presented in the two cases aren’t as pronounced as their disparate outcomes may suggest.
Instead of a DNA collection by cheek swab, the DNA collection in McNeely occurred through a forcible blood draw by law enforcement. The blood draw was administered immediately after the defendant, Tyler McNeely, refused to take a breath test when stopped by police.
Such non-consensual blood draws are only permissible under the Constitution in “exigent circumstances,” and the Court held in McNeely that the destruction of evidence – the alcohol content in the driver’s blood – by natural dissipation of alcohol from the bloodstream did not constitute an “exigent circumstance.”
As discussed above, McNeely is a significant forcible DNA sampling case and will be cited regularly in future cases. It is even more significant, though, in DWI case law, where it is already shifting the legal landscape considerably.
Just over three months prior to Edward Snowden’s leaks about the contentious government surveillance programs, the Supreme Court ruled in Amnesty International that the challengers of the FISA Amendments Act of 2008 – who claimed that the law was being used by the government to monitor their international communications – lacked standing.
Why did the Court find that the challengers lacked standing? Because the injuries alleged by the challengers – namely that their communications could be monitored by the U.S. government – rested “on a speculative chain of possibilities.” To this point, the Court explicitly stated that “it is highly speculative whether the Government will imminently target communications to which [the challengers] are parties.”
And then three months later, we discover that the government is indeed monitoring everyone’s communications.
Had this case been argued after the leaks became public knowledge, it very well could have been decided differently. The Court will likely get a chance to revisit this ruling, though, if and when it reviews Klayman v. Obama (the aforementioned case involving the leaked surveillance programs).
After pushing this case from the 2011 October Term until the 2012 one, the Supreme Court finally ruled in Kiobel. And the result was bad news for human rights activists abroad.
Kiobel dealt with the interpretation of 1789’s the Alien Tort Statute (ATS), a law that gives U.S. district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
In the past 30 or so years, the ATS had been used to sue U.S. corporations for human rights violations committed abroad. Such was the case in Kiobel, which was brought by citizens of Nigeria who claimed that Shell Oil’s Nigerian subsidiary colluded with the Nigerian government to brutally crush nonviolent resistance movements against oil development efforts.
The Court ruled that, as a general rule, there is a presumption against the ATS applying to extraterritoriality – thus, claims arising from actions that occurred outside of the U.S. could not typically be brought under the ATS.
The case had been closely watched both by human rights activists and by corporations who have and continue to work with national governments with, shall we say, a less than savory human rights record.
The Supreme Court’s decision in Kiobel surely allows those corporations a sigh of relief while human rights activists are dismayed that the strongest (if not the only) legal mechanism to sue U.S. corporations for alleged atrocities committed abroad has been effectively dismantled.
Kiobel stands as one of the most significant rulings in international law of 2013.