Clapper v. Amnesty International USA

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. 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. 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. 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.

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.

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. 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. Clapper claims that Amnesty International’s harms are self-inflicted, and therefore, are not able to serve as injuries-in-fact. 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.

Clapper further argues that Amnesty International failed to show that an injunction of the FAA would redress their alleged injuries. Clapper contends that because Amnesty International’s injury is spending its own money, court action is unnecessary to prevent the injury. Clapper says that Amnesty International may simply cease at any time using its own money to protect their communications preemptively. 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.

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. 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. 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. Amnesty International claims that by spending money to avoid surveillance, it suffered the injury-in-fact of losing money. Amnesty International argues that these costs are fairly traceable to the FAA because they stem from a reasonable interpretation of the challenged statute.

Finally, Amnesty International argues that it has not contributed to its own injuries 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. Amnesty International claims that all actions it took to secure its communications were necessary in order to protect sensitive and privileged information.

Imminence of injuries

To receive prospective relief, a plaintiff must show that an injury is ongoing, present, or imminent. 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. 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.

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. 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. 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.

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. 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. 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. According to Clapper, the burden of proof is on the plaintiff to show that an injury is likely from an objectively reasonable perspective. 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.

Amnesty International claims that it does have standing to sue because surveillance of its communications under the FAA is imminent. Amnesty International contends that the FAA increases the likelihood that communications between American citizens will be intercepted, which makes phone and email communication vulnerable. 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. 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.

Amnesty International further contends that the future events linked to their present injuries are not conjectural. 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. Further, Amnesty International points to a history of the executive branch advocating for the ability to conduct mass surveillance. 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.