Page v. Comey

The Fourth Amendment protects Americans from unreasonable searches and seizures, yet the federal government has repeatedly abused its secret surveillance authorities to violate these fundamental rights. When the FBI seeks to use the Foreign Intelligence Surveillance Act (FISA) to surveille citizens, the Fourth Amendment is supposed to be protected by the program’s “pre-surveillance judicial warrant procedure,” which generally requires the government to provide to the Foreign Intelligence Surveillance Court (FISC) facts to support probable cause. If that information is incomplete or incorrect, the court’s decisions will often be flawed as well. That heightens the possibility that FISA surveillance violates the Fourth Amendment.

But because FISA surveillance is secret, those subject to this surveillance don’t know and therefore don’t know their Fourth Amendment rights may have been violated.

So when must a person bring a Fourth Amendment claim if there are anonymous reports, speculation, or rumors that the person is subject to FISA surveillance? Citizens who believe themselves to be victims of illegal FISA surveillance do not have standing to challenge that surveillance based on speculation. But the time that a person must file suit to challenge a violation of his Fourth Amendment rights is limited and begins when a person knows or should know of the violation. And if the person waits until the government surveillance becomes public, the case could be dismissed for being too late.

The Liberty Justice Center filed an amicus brief in Page v. Comey asking the U.S. Supreme Court to grant review and clarify when claims based on unlawful FISA surveillance “accrue.” The brief argues that victims like Mr. Page should be granted the right to bring suit when evidence of government misconduct is finally made public, not earlier based only on rumors or suspicion.

In this case, the lower court held that Mr. Page’s claims were untimely because he had read anonymously sourced news articles years earlier suggesting he might have been the target of illegal surveillance but did nothing to file suit at the time. In waiting for the information to be made public, since it was considered classified previously, the court ruled that Mr. Page forwent his right to sue.

The Liberty Justice Cener’s amicus brief explains why that rule creates an unfair and constitutionally dangerous trap. If a victim sues before evidence is declassified, the case risks dismissal as speculative. But if the victim waits until government disclosures provide the necessary facts, the case can be dismissed as too late. When courts adopt this approach, the government can effectively evade judicial review by keeping evidence secret until limitations periods expire.

“To expect individual citizens to divine from anonymously sourced news articles facts the government is actively working to keep secret will ultimately deprive citizens of their day in court to vindicate their rights,” says Reilly Stephens, senior counsel & Director of Amicus Practice at the Liberty Justice Center

Allowing judicial review after proof of government overreach and abuse becomes public is essential for accountability and for ensuring Fourth Amendment protections remain meaningful. The Liberty Justice Center’s work challenging unlawful surveillance—such as Scholl v. Illinois State Police—reflects the same principle: no agency is above the Constitution, and constitutional violations must be capable of being tested in court.