Despite the wrath of Hurricane Sandy, the Supreme Court heard the ACLU argue for the right of Americans to challenge warrantless wiretapping via the FISA Amendment Act law. Here's the transcript [PDF] and there are plenty of write-ups about oral arguments suing over surveillance secrets. Sadly, it's not a question of if Big Brother should spy on us, but about deciding if Americans even legally have a right to challenge dragnet secret surveillance.

The ACLU wrote:

The plaintiffs in the lawsuit, Clapper v. Amnesty, include attorneys and human rights, labor, legal, and media organizations, and their work requires sensitive and at times privileged international communications. The FISA Amendments Act permits the government to conduct dragnet secret surveillance of Americans' international communications - that is, surveillance that is not limited to a specific person and may go on for up to one year without any court approval. In this way, the FISA Amendments Act of 2008 has created a new surveillance regime that is starkly different from the particularized surveillance of the past.

If Big Brother is recording your phone conversations and reading texts as well as all your emails, instant messages, and direct messages, then it sucks to be you, wrote The Atlantic, explaining why Big Brother and all his surveillance are the new normal since 9/11. If Big Brother is watching your friends, then "you need to watch what you say, or stop talking to those people altogether."

Let's stop there for a second to interject this experience. Let's say I have a reporter friend who often talks to members of Anonymous or various AntiSec groups claiming responsibility for hacking and then dumping the digital dirt on Pastebin. This friend and I talk over Twitter's direct message system which, in my opinion, is a means of private communication between two people. The first time this person told me that the FBI was watching her, I thought "yikes 'cause now I've hit their radar too." This would not be the first time for that, so after thinking on this situation, knowing she was being watched, I sent a DM, "*Waving* hi to the FBI," and continued talking. Other DMs may have told the Feeb snoops that she couldn't hack her way out of a box with a box cutter. She was a reporter, period.

Over the last year or so, this has happened several times due to her communications with alleged persons of interest with hacking skills; my private communications with her also get sucked up in the spying. Every time, I sent a DM acknowledging the spying, mentioning the Fourth Amendment, the First Amendment, and generally letting Big Brother know that I don't appreciate being spied upon at all.

Our DM conversations are usually so dull that we probably put whoever is watching to sleep. Although I could stop talking to her altogether, that idea is almost as offensive as Eric Schmidt's "if you've got nothing to hide" argument and his stance that anonymity has no place on the web; the stupidity of 'nothing to hide' almost makes the privacy freak in me foam at the mouth. You might think, Paranoid much? But what if it is more than paranoia? Having seen FBI documents handed over to the court which specifically mention my friend by name and what AntiSec so-and-so members said to her, that's fact, not paranoid fiction.

The government refuses to disclose whose communications are being intercepted, claiming if you can't prove your communications are being vacuumed up, then you can't take it to court. Previously, even though Senator Ron Wyden asked the government how often Big Brother spies on Americans, the NSA claimed it would violate Americans' privacy to say how many of us it spied on. The NSA has also denied keeping dossiers on American citizens and other NSA whistleblower claims like Drake's statement that you're automatically suspicious until proven otherwise. Then again, the government argues it won't reveal anything about warrantless wiretapping and continually claims it won't tell us these privileged state secrets because that would endanger national security.

The FISA Amendments Act (FAA) is up for re-authorization at the end of this year and Sen. Wyden will debate it. However, as David Kravets wrote on Threat Level, Wyden also said he'd agree to a 'short term' extension as opposed to letting Big Brother's spy power lapse. "So there you have it, the biggest opponent of the law is willing to reauthorize it rather than see it sunset."

Now, back to Clapper v. Amnesty International, FAA and Big Brother the spy; the government basically says plaintiffs are paranoid to think Big Brother is watching and will still be "equally paranoid if plaintiffs obtain an order striking down the FAA." The SCOTUSblog reported, the "government's top lawyer in the Court, Solicitor General Donald B. Verrilli, Jr., argued that no one should be allowed in court to contest this program unless they can show that the government's potential overhearing of sensitive legal conversations is close to a certainty." But some of the Justices "were clearly put off by the prospect that no one would ever be able to sue, not even lawyers who had actually cut back on how they represent their clients out of fear of being monitored."

University of Baltimore legal scholar Garrett Epps said in The Atlantic article, "Big Brother is watching. Whatever the Court decides, Big Brother will still be watching...Surveillance is the new normal. Sucks to be all of us." And Kravets wrote, "The game is rigged, the network is bugged, the government talks double-speak, the courts are complicit and there's nothing you can do about it."

How completely depressing is it that, in America, we are no longer innocent until proven guilty? Instead privacy is practically outlawed, we are potentially suspicious and spied up just in case someday, in light of the continuing releases of ridiculous you-might-be-a-terrorist-if lists, all that stored communication can prove we are guilty of something.

SCOTUS will decide on Clapper v. Amnesty International next year.