The United States Supreme Court has agreed to consider whether a coalition of human rights groups and journalists has standing to challenge the 2008 FISA Amendments Act. The Obama administration has argued that because none of the plaintiffs can prove that their communications were intercepted by any of the government's secret surveillance programs, they lack standing to challenge the legislation that authorizes them.

A three-judge panel of the United States Court of Appeals for the Second Circuit rejected that argument last year, holding that it was reasonable to assume the government would use the new powers Congress had granted it. The plaintiffs regularly communicate with overseas individuals who fear surveillance by the US government and say they've been forced to spend money arranging face-to-face meetings because their sources no longer feel comfortable communicating electronically. A majority of the Second Circuit ruled that these costs were sufficient to give the plaintiffs standing to challenge the legislation.

But not everyone agreed. Indeed, the court was evenly divided on the government's request for the case to be re-heard by all 12 judges of the Second Circuit. Chief Judge Dennis G. Jacobs ridiculed the plaintiffs' case, comparing it to a "plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar." He argued that "the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation."

The split vote meant the government didn't get a chance to make its case to the full Second Circuit. So the Obama administration asked the Supreme Court to weigh in. The high court granted the request on Monday and will likely hear the case after it returns from its summer recess.

The FISA Amendments Act prohibits intelligence agencies from "targeting" US citizens without a warrant. But as we argued in 2008, there is less to this prohibition than meets the eye:

The government may not "target" Americans under the broad "authorizations" discussed in the previous section, and in some cases the government may discard information obtained about Americans as part of the required "minimization" procedures, but the government would retain significant latitude to decide which information it retains. The paradoxical consequence is that broader wiretapping orders may be approved more easily than narrower ones. For example, the government could not unilaterally "authorize" the "targeting" of a particular San Francisco resident's international communications. However, it could "authorize" a dragnet surveillance program that intercepted the international communications of all San Francisco residents under the pretext that it was "targeting" any foreign terrorists who might happen to communicate with San Francisco residents.

The Supreme Court will not rule on the plaintiffs' argument that the FAA violates the Fourth Amendment. Rather, it will decide the threshold question of whether the plaintiffs are entitled to bring the suit at all. If the high court decides the plaintiffs have standing, then the case will return to the lower courts for consideration on the merits.