As a result, the government no longer needs to specify the targets of its spying; it simply must file with the FISC a declaration that it needs to conduct surveillance, not on a given individual, but on a certain class of communications. The FISC does not review this filing; it simply makes sure the government has filled it out properly, and then issues a surveillance order. Government may still not "intentionally target" persons in the U.S. -- but it no longer has to designate a specific target at all, and it does not need to show that it has "probable cause" to spy on anyone in particular. It's a license for wholesale spying, as long as the communications involve one party in another country.

After FAA passed, a group of lawyers, human rights groups, news media, and journalists (including Pulitzer winner hris Hedges) filed suit in federal court. They are seeking a declaration that the new, looser procedures violate the Fourth Amendment.

After FAA's passage, they argued, it now really sucked to be them; if the FAA program was stopped, it would suck a lot less. That's because they had frequent confidential dealings with sources overseas -- clients seeking to communicate confidentially with their U.S. lawyers, human rights advocates and witnesses not eager to be known publicly for opposing oppressive regimes, and journalistic sources displeasing to the United States. After FAA, they charged, they had to assume that their phone calls and emails might be intercepted. As a result, they often had to travel abroad to meet with their clients or sources, or, if they could not, forgo communicating at all.

The government responded, in essence, that paranoia could not establish standing. True, intelligence agencies might be listening; but then again, they might be listening to other people entirely. If the plaintiffs got antsy and wanted to spend money to travel abroad rather than call or email, well, that wasn't an "injury in fact," just a choice by the plaintiffs themselves.

In a ground-breaking opinion, a panel of the Second Circuit held that the plaintiffs did have "standing to sue." The plaintiffs had suffered an "injury in fact" -- they had to spend money, a quintessential legal injury. The panel ordered the district court to hold a trial on the constitutional issue. But the government petitioned the Supreme Court to overturn the panel's order, and the court has granted review.

It's hard to believe that it has done so in order to affirm the Second Circuit. In the 1972 case of Laird v. Tatum, the Supreme Court refused to restrain the military from conducting surveillance on civilian groups in the U.S., because the plaintiffs claimed only that the program had a "chilling" effect on their freedom of expression. "Allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm," Chief Justice Burger wrote. Laird was a 5-4 decision, but it would be hard to argue that the changing makeup of the court since 1972 has strengthened its commitment to civil liberties.