Does the PRISM leak expose the NSA's surveillance program to legal challenge?

Edward Snowden, the 29-year-old NSA contractor behind the PRISM leak, broke his long silence last week because he wanted Americans to know just how completely their privacy has been eviscerated in the name of security. "My sole motive is to inform the public as to that which is done in their name and that which is done against them," he told the Guardian in an interview. "I will be satisfied if the federation of secret law, unequal pardon, and irresistible executive powers that rule the world that I love are revealed even for an instant."

But by detailing the mammoth electronic surveillance program that, as he told the Washington Post, "quite literally" allows the NSA to "watch your ideas form as you type," Snowden also hoped to make possible a legal challenge to the surveillance state -- one that had previously been hampered by the thorny question of standing. In that, however, Snowden may ultimately come up short.

On Feb. 26, the Supreme Court ruled in Clapper v. Amnesty International USA that Americans lacked standing to challenge an amendment to the Foreign Intelligence Surveillance Act that authorized electronic surveillance of non-U.S. citizens abroad -- but which inevitably resulted in the surveillance of persons inside the United States -- because, in essence, the snooping was classified and therefore couldn't be proven to exist. As Justice Samuel Alito wrote in the majority opinion, "respondents fail to offer any evidence that their communications have been monitored" under the expanded version of FISA. Theirs, according to Alito, was a "highly speculative fear."

The decision split the court 5 to 4, with Justice Stephen Breyer, joined by the remainder of the court's liberal wing, dissenting. In Breyer's view, the standard adopted by the majority -- that the harm to respondents (being snooped on) must be "certainly impending" -- "is not, and never has been, the touchstone of standing." And even if it was, he writes, "this harm is not 'speculative.' Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen."  

Snowden's revelations would seem to remove all doubt that Americans have been swept up in the NSA's colossal dragnet. Even if we accept the vigorous protestations of both the Obama administration and the tech companies allegedly participating in PRISM, the surveillance program has at least been partially declassified and acknowledged to impact at least some unsuspecting citizens.

According to the fact sheet released by Director of National Intelligence James Clapper, the relevant provisions of FISA contain "minimization procedures" that "govern how the Intelligence Community (IC) treats the information concerning any U.S. persons whose communications might be incidentally intercepted and regulate the handling of any nonpublic information concerning U.S. persons that is acquired, including whether information concerning a U.S. person can be disseminated."

"Significantly," the fact sheet continues, "the dissemination of information about U.S. persons is expressly prohibited unless it is necessary to understand foreign intelligence or assess its importance, is evidence of a crime, or indicates a threat of death or serious bodily harm." In other words, the government can, without an individual warrant, disseminate intelligence "incidentally" intercepted about American citizens living within U.S. borders so long as that intelligence implicates them in a crime, informs foreign intelligence, or represents a serious threat.

Yet despite such revelations, future plaintiffs seeking to challenge the NSA's surveillance program on First or Fourth Amendment grounds will still likely run up against the problem of standing, according to legal experts. As Lyle Denniston, a legal journalist and constitutional advisor to the National Constitution Center in Philadelphia, told FP in an email: "The near-universality of the surveillance here does not count as evidence of who was monitored, in a factual sense. These new revelations are not sufficiently different from the program at issue in the Clapper decision, so that decision very likely dooms any challenge."

"The Clapper decision rules out any reliance upon probability of being overheard, so it is difficult, given the secrecy of the program, to imagine that anyone can show they actually were monitored," writes Denniston.  

Stephen Vladeck, a law professor and the dean for scholarship at American University, had a similar take: "I don't think that the PRISM leaks will directly bear on the standing issue identified by the Supreme Court in Clapper, because even with what is now publicly known about the program, individual plaintiffs will still have the same problem -- proving that their communications, in particular, have been, or will be, intercepted," he wrote in an email.  

Still, Vladeck cautions, judges "don't live in a vacuum." Even if individual plaintiffs will still face an uphill battle, "courts going forward may not be nearly as skeptical of the possibility that this kind of systematic interception of communications is really going on." At the same time, he writes, the revelations "certainly makes it that much harder ... to buy into Justice Alito's rather rose-colored vision of the scope of governmental surveillance."

While Snowden's big leaks may not turn the legal tables on the NSA, we can be virtually certain that they will be at the center of future lawsuits seeking to rein in the surveillance state. Already, Larry Klayman, a former Justice Department prosecutor and the founder of Judicial Watch, has expanded his lawsuit against the Obama administration to cover the NSA's monitoring of Verizon call logs, disclosed by the Guardian last week. It's only a matter of time before PRISM is at the heart of a similar suit.   

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BuzzFeed hires Miriam Elder as foreign editor

In December 2011, when Ben Smith, the high-octane reporter and blogger for Politico, jumped ship to become the editor of BuzzFeed, a site then better known for viral slideshows and cat videos, many in the world of political journalism wondered if Smith had lost his mind.

They're not wondering anymore. Smith, 36, quickly established BuzzFeed as a go-to source for political news, hiring a team of smart, hungry, young reporters and bringing the site's signature social media-driven style to coverage of the 2012 campaign.

Now, with the hiring of Miriam Elder, the Moscow correspondent for the Guardian, to be the site's first foreign and national security editor, BuzzFeed is aiming to do the same for world news.

The idea for the expansion, says BuzzFeed founder Jonah Peretti, took shape after the April 15 Boston Marathon bombings, when the site's 60 million monthly unique visitors were looking for answers -- and old-fashioned facts.

"With the Boston bombings, we saw something new," says Peretti, a 39-year-old former cofounder of the Huffington Post and a new media pioneer. "People started tweeting from the scene, and the front page stats jumped."

"It was a real eye-opening moment," Peretti says. "They don't have a legacy news brand, and they were turning to BuzzFeed, a site they visit every day, to figure out what was happening. ... Our top five stories were all hard news content."

BuzzFeed moved quickly, hiring Lisa Tozzi from the New York Times to be its first news director, and accelerating what were then still formative plans to venture into national security and international coverage (in April, the site made a foray into this territory by collaborating with FP on "11 Buzzfeed Lists That Explain the World").

"We think that there's this new central social conversation -- on Twitter in particular -- around international news and national security, and we think reporting is an important way into that conversation," explains Smith.

So is BuzzFeed going up-market, in a bid to broaden its brand? Not exactly, according to Peretti: "We're not going up-market in the sense that when we hired Ben Smith, a few weeks later we launched an animals vertical."

Nor is there a strict business rationale for going global. "I think there are moments when people care about foreign news more than anything else," notes Peretti. But then, "the week after the Boston bombings, people were sharing really comforting content," such as "21 Pictures That Will Restore Your Faith in Humanity."

Peretti likens BuzzFeed's expansion to a TV station or an old-fashioned newspaper diversifying its mix of coverage. "Sometimes people want to be entertained more than they want to be informed, and sometimes it's the other way around. ... The newspaper has the Sunday styles and the crossword sections -- television networks have the sitcoms and the evening news and the late-night variety show."

With Elder, BuzzFeed has hired a journalist who was the first Western reporter to cover Pussy Riot, the punk-rock collective whose members were later prosecuted for their provocative performance art.

"They'd done a shocking performance on Red Square that had piqued my interest," she explains.

"Miriam's a great reporter who both has covered big, complicated stories -- everything from corruption to the failed political revolt against [Russian President Vladimir] Putin," says Smith. "She's also a big voice on Twitter, which is necessary but not sufficient these days."

Elder will be based in New York and will supervise an initial team of half a dozen reporters, including Rosie Gray -- an aggressive 23-year-old former Village Voice writer who has already broken stories on Malaysian influence-peddling in Washington and Boston bomber Tamerlan Tsarnaev -- as well as full-time correspondents in places like Cairo, Moscow, and Mexico City.

The site's viral teams will be contributing the odd slideshow, and J. Lester Feder, 32, will be covering the international gay rights movement.

Elder, 34, has been in Moscow since September 2006 and did an earlier stint with AFP from 2002 to 2003. She has a master's degree from the Johns Hopkins School of Advanced International Studies, with a focus on strategic studies and international economics.

Says Smith, "If you can survive covering Russia and do good work there, that's an impressive thing."

Blake Hounshell contributed reporting.

Miriam Elder/Twitter