In 2008, Congress passed the FISA Amendments Act of 2008 (FAA), which revised the procedures for authorizing certain foreign intelligence collection, including expanded authority to collect information on persons outside of the United States using electronic surveillance. Additionally, the new procedures allow the government to disclose less information before targeting people reasonably believed to be abroad. Shortly after Congress passed the FAA, several organizations, including Amnesty International and the American Civil Liberties Union (ACLU), filed a lawsuit in federal court challenging the act’s constitutionality. The district court dismissed the lawsuit because it found the organizations lacked standing. The Second Circuit Court of Appeals reversed, and now the Supreme Court must decide if Amnesty International and other organizations have a sufficient stake to allow them to move forward with their constitutional challenges to the FAA. Amnesty International and other organizations argue that they have standing based on a reasonable fear that the government will monitor some of their communications and based on the costly methods used to prevent that monitoring. Director of National Intelligence James Clapper argues that the groups do not have standing because their injuries are not imminent, they do not have ongoing or present injuries, and self-inflicted harms are not recognizable injuries. The decision in this case will likely result in a rebalancing of the competing interest in government transparency and safeguarding national security. Further, the decision will likely cause one side to incur greater costs either in litigating more cases based on alleged, unproven surveillance or in protecting confidential communications against unknowable surveillance.
Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)- referred to here as Section 1881a- allows the Attorney General and Director of National Intelligence to authorize jointly the "targeting of [non-United States] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information," normally with the Foreign Intelligence Surveillance Court's prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Respondents are United States persons who may not be targeted for surveillance under Section 1881a. Respondents filed this action on the day that Section 1881a was enacted, seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a. The question presented is:
Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using Section 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.
Does a group of international organizations, lawyers, and media personnel have standing to sue for prospective relief based on their allegation that the United States would imminently acquire their international communications using surveillance authorized under the Foreign Intelligence Surveillance Act of 1978?
Amnesty International USA, along with attorneys, human rights, labor, legal, and media organizations, filed a lawsuit challenging the constitutionality of the FISA Amendments Act of 2008 (FAA). See Brief for the Respondents, American Civil Liberties Union at 15-16. The FAA amends the Foreign Intelligence Surveillance Act of 1978 (FISA), which established procedures for gathering foreign intelligence including by electronic surveillance. See Amnesty Intl. v. Clapper, 638 F.3d 118, 122-123 (2nd Cir 2011). Electronic surveillance involves intercepting wire or radio communications without the permission of the parties, and generally requires a warrant if the parties have a reasonable expectation of privacy. See 50 USC § 1801(f). FISA also established the Foreign Intelligence Surveillance Court (FISC) with the power to review and authorize government applications for potential surveillance. See Amnesty Intl. 638 F.3d at 122-23.
The FAA preserves most of the surveillance authorization of FISA. See Amnesty Intl. 638 F.3d at 122. According to the interpretation of the Second Circuit Court of Appeals, FAA made two key changes to FISA that expanded the government’s power to authorize foreign intelligence surveillance. See id. at 125-26. First, the FAA creates procedures for authorizing “foreign intelligence electronic surveillance targeting non-United States persons located outside the United States.” Id. at 121. Second, the government no longer needs to name a particular target of surveillance; rather the government can describe the target if the specific identity of the target is unknown as long as the government reasonably believes the target to be outside of the United States. See 50 USC § 1804(a)(2), see also Amnesty Intl. 638 F.3d at 125-126. The Attorney General and the Director of National Intelligence (DNI) can apply for certain mass surveillance authorizations by making a written certification to FISC claiming they have a significant purpose for obtaining foreign intelligence information if they comply with targeting procedures and minimization procedures. See id. at 124.
The same day Congress enacted the FAA, Amnesty International and other attorneys and human rights organizations filed a complaint in the District Court for the Southern District of New York. See Amnesty Intl. 638 F.3d at 126-27. These organizations state they communicate extensively with individuals abroad who may become the targets of government surveillance under the FAA. See id. at 127. The organizations were seeking declaratory and injunctive relief because of their view that the FAA “violates the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers.” Id.
In response, DNI James Clapper argued that the organizations lack standing to bring their claim because they cannot show they are the targets of electronic surveillance under the FAA. See Amnesty Intl. 638 F.3d at 127. The district court agreed with the government that the plaintiffs lacked standing and therefore granted the government’s motion for summary judgment. See id. at 129. The district court did not believe that the fear of being monitored nor the resulting professional and cost the organizations incurred to protect confidentiality demonstrated the required injury in fact. See id.
The United States Court of Appeals for the Second Circuit reversed the lower court’s decision. See Amnesty Int. 638 F.3d at 150. The Second Circuit only reached a decision on the issue of standing and did not address the FAA’s constitutionality. See id. at 131. The Second Circuit viewed Amnesty International’s expenses as a present injury stemming from the FAA and therefore Amnesty International could continue to pursue its constitutional claim. See id. at 150. Clapper appealed to the Supreme Court, which granted certiorari. See Amnesty Intl. 368 F.3d 118 (2nd Cir 2011), cert. granted.
The parties are at odds over when and how people or organizations can oppose government action in court. Clapper opposes finding standing in this case because of the government’s interest in having strong power to collect information for national security. See Brief for the Petitioners, James R. Clapper at 34-35. On the other side, Amnesty International and other human rights organizations state they want more government transparency than is required under the FAA. See Brief for Respondents, Amnesty International USA, et al. at 10-13. Another point of contention is who would suffer worse consequences from a loss on the underlying merits. Clapper argues that granting standing to a party that cannot demonstrate the party has been the subject of wiretapping would open the door to litigation requiring the DNI to defend against other hypothetical occurrences. See Brief for the Petitioner at 36. Amnesty International argues that losing standing here means they would need to continue to change their methods of communication to avoid interception of client information. See Brief for the Respondents at 28-29.
Balance Between Government Transparency and National Security
Clapper sees judicial review in this setting as an encroachment by the judiciary on the remaining branches of government. See Brief for the Petitioners at 36. Furthermore, Clapper believes courts should rigorously enforce standing requirements in cases like this where the underlying challenge involves national security. See id. Clapper argues that courts should be careful when seeking to review the national security measures and foreign policy initiatives of the legislative and executive branches. See id. Six former Attorneys General for the United States contend that the government has an interest in avoiding unwarranted litigation, particularly in national security cases because such litigation could expose sensitive or secret information. See Brief of Amicus Curiae John D. Ashcroft et. al in (Ashcroft) support of the Petitioner at 12-13.
On the other hand, the American Civil Liberties Union (ACLU) believes the FAA implements an undesirable framework that lacks both transparency for government surveillance and adequate safeguards for privacy. See ACLU, Fix FISA-End Warrantless Wiretapping. The Electronic Privacy Information Center (EPIC) agrees, contending that the capability for mass surveillance makes public reporting and notification more important. See Brief of Amicus Curiae Electronic Privacy Information Center, Thirty-Two Technical Experts and Legal Scholars, and Eight Privacy and Transparency Organizations (Epic) in Support of Respondents at 28-30. EPIC believes that the current system for gathering intelligence is ripe for abuse without proper protections to privacy and accountability. See id. at 29-30. Lastly, EPIC contends that without adequate oversight, the existing legal limitations on surveillance will lead to broad collection programs with no method for targets to know if the program monitors their communications. See id. at 11-13.
The Injuries to the Parties from Having to Litigate or from Not Having the Opportunity to Litigate
Amnesty International insists that it and the other organizations have already suffered the effects of the FAA. See Brief for the Respondents at 28-29. Amnesty International believes the sweeping surveillance allowed under the FAA compels them to take costly steps to protect potentially privileged communications between persons abroad and the attorneys, human rights, labor, legal, and media organizations. See id. at 34-36. Amnesty International contends that knowing the risk that the government could intercept sensitive or confidential information creates a professional obligation on them and other organizations to take actively avoid interception. See id. at 19. Amnesty International stresses that there is already a real, unavoidable injury to these organizations with the implementation of the FAA. See id. at 24
Clapper counters that allowing the federal court to decide the constitutionality of the FAA in this circumstance would result in the court examining the effects of the FAA in the abstract, not in a concrete setting. See Brief for the Petitioner at 36.Clapper believes the federal court will have to speculate on the probable effects of the law. See id. Six former Attorneys General agree with Clapper, arguing that allowing standing in this case will create the opportunity for anyone who dislikes a law to self-inflict harm and gain standing to challenge the law. See Brief of Ashcroft at 29. The former Attorneys General contend that such a reading of standing law would open up the government to excessive challenges from parties disagreeing with policies that do not directly injure that party. See id. at 29-30.
This case will determine whether economic and professional costs related to the reasonable fear of government surveillance under the FISA, as amended by the FAA, constitute an injury sufficient to give the plaintiffs the right to challenge the law in court, known as standing. Amnesty International and other organizations, believe they have standing to sue based on their fear of government surveillance and the money they spent to protect their communications because of that fear. See Brief for Respondents, Amnesty International USA, et al. at 28. Clapper believes that the organizations do not have standing to sue because they base their claim on future injuries and on present injuries that judicial relief cannot redressed. See Brief for Petitioners, James R. Clapper, Jr., et al. at 18. The Supreme Court will not rule on the merits of the underlying case, that is, whether the law that authorized the surveillance program violates Respondents’ Fourth Amendment right to protection from unreasonable searches. Amnesty Int’l USA v. Clapper, 638 F.3d 118, 121 (2d Cir. 2011). The question here is a far narrower one: whether such a fear, and the actions the plaintiffs have taken because of the law, gives them a right to challenge the law in court. Amnesty Int’l USA v. Clapper, 638 F.3d 118, 133 (2d Cir. 2011).
The parties here dispute two elements of the standing doctrine: (1) whether Amnesty International and other organizations suffered an injury in fact, meaning an invasion of a legally protected interest that is concrete and particularized, and (2) whether there is a likelihood that a favorable decision would redress the injury. Allen v. Wright, 468 U.S. 737, 752 (1984); See Brief for Petitioners at 22; See Brief for Respondents at 27.
Actual Injury in Fact
The requirement that a plaintiff shows that the plaintiff has suffered an “injury in fact,” is a key element in standing doctrine. See Brief for Petitioners at 24; See Brief for Respondents at 28–29. Clapper contends that Amnesty International has not suffered an injury direct enough to give them standing to sue under Article III of the United States Constitution. See Brief for Petitioners at 38. Clapper claims that Amnesty International’s harms are self-inflicted, and therefore, are not able to serve as injuries-in-fact. See id. at 38. Clapper additionally claims that it is unlikely that surveillance programs would intercept Amnesty International’s communications because the surveillance authorized under the FAA does not apply to Amnesty International. See id. at 39–40.
Clapper further argues that Amnesty International failed to show that an injunction of the FAA would redress their alleged injuries. See Brief for Petitioners at 44. Clapper contends that because Amnesty International’s injury is spending its own money, court action is unnecessary to prevent the injury. See id. Clapper says that Amnesty International may simply cease at any time using its own money to protect their communications preemptively. See id. Additionally, Clapper states that an injunction is not likely to prevent Amnesty International from spending money to secure communication in the future because Amnesty International bases its monetary expenditures on its own speculation about whether the government will intercept some of its communications. See id. at 44–45.
Amnesty International asserts that the FAA permits broad monitoring overseas through mass surveillance orders that authorize the government to collect a multitude of communications, including communications between Amnesty International and its overseas contacts. See Brief for Respondents at 29. Amnesty International does not cite past instances of surveillance, but fears that the government will monitor its communications in the future, which has persuaded the organization to take expensive measures to ensure the continued confidentiality of its communications. See id. at 28. As example, Amnesty International points to the significant cost of flying its members overseas to meet in-person with clients, rather than communicate via phone or email. See id. at 29. Amnesty International claims that by spending money to avoid surveillance, it suffered the injury-in-fact of losing money. See Brief for Respondents at 28–29. Amnesty International argues that these costs are fairly traceable to the FAA because they stem from a reasonable interpretation of the challenged statute. See id. at 29.
Finally, Amnesty International argues that it has not contributed to its own injuries See Brief for Respondents at 36. It further contends that standing is defeated only if the injury suffered is so completely due to the plaintiff’s own fault as to break the causal chain. See Brief for Respondents at 36. Amnesty International claims that all actions it took to secure its communications were necessary in order to protect sensitive and privileged information. See id. at 36–37.
Imminence of injuries
To receive prospective relief, a plaintiff must show that an injury is ongoing, present, or imminent. See Brief for Petitioners at 22–23; See Brief for Respondents at 53. When a plaintiff seeks to establish standing and asserts a present injury based on conduct taken in anticipation of future government action, the court must evaluate the likelihood that the future action will in fact happen. See Brief for Petitioners at 24–25. To determine whether the present injury is traceable to the challenged future action, the court must consider whether a plaintiff’s present injury resulted from some irrational or otherwise clearly unreasonable fear of future government action that is unlikely to take place. See id. at 25.
Clapper argues that the courts should not allow Amnesty International to rely on alleged future injuries that are not imminent to establish standing to sue. See Brief for Petitioners at 24. Clapper argues that Amnesty International and other organizations have no standing because no injury has yet befallen them, and that all the injuries are speculative because they rely on certain future events happening. See id. Clapper claims that all of Amnesty International’s monetary expenditures up to this point have stemmed from a conjectural belief that the FAA will apply to its foreign communications, and that this conjectural belief does not establish an imminent injury. See id.
Further, Clapper claims that the Second Circuit’s holding below is unprecedented and out of line with the Supreme Court’s decisions that require imminent injury in fact. See Brief for Petitioners at 25. Clapper claims that the Second Circuit not only broadened the imminence requirement, but that it failed entirely to consider the conjectural nature of the claims. See id. Clapper contends that it is not enough for the plaintiff merely to claim that an injury is imminent, but the plaintiff must also show evidence in order to satisfy the imminence requirement. See id. at 28. According to Clapper, the burden of proof is on the plaintiff to show that an injury is likely from an objectively reasonable perspective. See id. Clapper claims that the Second Circuit erred in overlooking this evidentiary requirement and that Amnesty International simply relied on conclusive statements of injury and did not produce any actual evidence of injury. See id. at 29.
Amnesty International claims that it does have standing to sue because surveillance of its communications under the FAA is imminent. See Brief for Respondents at 53. Amnesty International contends that the FAA increases the likelihood that communications between American citizens will be intercepted, which makes phone and email communication vulnerable. See id. at 53. Amnesty International does not claim to be the direct target of the surveillance authorized under the FAA, but believes that their clients will include surveillance targets, and therefore, the government will intercept communications with their clients. See id. Amnesty International claims that their legitimate professional interests make it likely that the government would intercept communications by Amnesty International and other organizations if the government exercised the full authority granted by the FAA. See id. at 29–30.
Amnesty International further contends that the future events linked to their present injuries are not conjectural. See Brief for Respondents at 30-32. Amnesty International asserts that the FAA and FISA authorizes the mass surveillance that Amnesty International and other organizations seek to protect against and that the executive branch has not offered any reading of the statute that would indicate otherwise. See id. at 30-31. Further, Amnesty International points to a history of the executive branch advocating for the ability to conduct mass surveillance. See id. at 31. Amnesty International claims that based on the scope of the FAA and the work done by Amnesty International and other groups that the future events giving raise to their injuries will likely occur based on a reasonable assumption that the government will use its powers fully. See id. at 32-34.
In this case, the Supreme Court will determine whether respondents, a group of lawyers, journalists, and labor, media, and human rights organizations, have standing to challenge preemptively the constitutionality of an amendment to the Foreign Intelligence Surveillance Act. Amnesty International and other organizations argue that they have standing based on a reasonable fear that the government will monitor some of their communications and based on the costly methods used to prevent that monitoring. Director of National Intelligence James Clapper argues that the groups do not have standing because their injuries are not imminent, they do not have ongoing or present injuries, and self-inflicted harms are not recognizable injuries. The decision in this case will likely result in a rebalancing of the competing interest in government transparency and safeguarding national security. Further, the decision will likely cause one side to incur greater costs either in litigating more cases based on alleged, unproven surveillance or in protecting confidential communications against unknowable surveillance.
- Adam Liptak, Supreme Court Agrees to Hear Surveillance Case, N.Y. Times, May 21, 2012.
- Robert Barnes, Supreme Court Agrees to Hear Case on Electronic Surveillance, Wash. Post, May 21, 2012.
- Wex: Standing
- Wex: Electronic Surveillance
- Fact Sheet, FISA Amendments Act of 2008, Wall Street Journal
- James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16 2005