Case Summary and Outcome

The Supreme Court of the United States held that the plaintiffs lacked standing to challenge the constitutionality of Section 1881a of the Foreign Intelligence Surveillance Act (FISA) Amendments Act. The plaintiffs, which included Amnesty International USA, attorneys, journalists, and human rights organizations, argued that the law authorized the government to conduct surveillance of non-U.S. persons abroad, which could incidentally intercept their communications with foreign contacts. They claimed that this risk forced them to take costly and burdensome measures to protect the confidentiality of their communications, such as traveling abroad for in-person meetings. The Court found that the plaintiffs’ fear of surveillance was too speculative to establish standing, as they could not demonstrate that their injury was “certainly impending.” The Court emphasized that standing requires a concrete, particularized, and imminent injury, and that the plaintiffs’ self-imposed costs to avoid hypothetical harm did not meet this standard. Consequently, the Court reversed the lower court’s decision, which had found that the plaintiffs had standing.

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Facts

On October 25, 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) to regulate and authorize certain governmental electronic surveillance activities for foreign intelligence purposes. FISA was enacted to address the distinct standards and procedures needed for surveillance conducted in cases of domestic national security compared to those used for ordinary criminal investigations. To establish a tailored framework for foreign intelligence operations, Congress established two specialized Courts; the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR). These Courts were granted jurisdiction to review any denials by the FISC of applications for electronic surveillance.

After the 9/11 attacks in 2001, the US government allowed the National Security Agency (NSA) to conduct warrantless wiretapping of telephone and e-mail communications where one party was located outside the US and the other was connected to a “terrorist” organization. [p. 3] In 2008, Congress introduced the FISA Amendments Act, a supplementary statute to FISA that created a “new framework under which the Government could seek the FISC’s authorization of certain foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad.”

Under Section 1881a of the FISA Amendments Act, the government must get approval from the Foreign Intelligence Surveillance Court (FISC) for foreign surveillance activities. Unlike the original FISA, the 2008 amendment doesn’t require the government to demonstrate probable cause that a target is a foreign power or specify the nature and location of each surveillance location. If FISC approves, the Attorney General and the Director of National Intelligence can jointly authorize targeting individuals believed to be outside the United States for up to a year to gather foreign intelligence information.

Various groups, such as attorneys, journalists, and human rights organizations, collectively filed a suit challenging the constitutionality of Section 702 of the FISA, 50 U.S.C. Section 1881a, which was added to FISA by Section 101(a)(2) of the FISA Amendments Act, and seeking a declaration that Section 1881a violated the Fourth and First Amendments, Article III, and separation of powers principles. The plaintiffs contended that FISA compromises on confidential information of their clients and the threat of surveillance will compel them to travel abroad to have in-person conversations which are expensive. [p. 7]

On August 20th, 2009, Justice John George Koeltl of the United States District Court for the Southern District of New York dismissed the suit brought by Amnesty International against the National Intelligence Agency, National Security Agency, Central Security Service, and the Attorney General of the United States [Amnesty International USA v. McConnell, (2009)], holding that the plaintiff failed to show that they had Article III standing to bring their facial challenge to the FAA. The plaintiffs filed an Appeal before the Appellate Court.

On September 21, 2011, Justice Gerard E. Lynch of the United States Court of Appeals for the Second Circuit reversed the District Court’s decision and granted certiorari. Justice Lynch held that the plaintiffs had standing because there was an “objectively reasonable likelihood” that their communications would be subjected to surveillance authorized under Section 1881a in the future. On the other hand, the Court of Appeal found that the plaintiffs had standing because they were experiencing present economic and professional harm due to a reasonable fear of potential future government actions. James Robert Clapper Jr., Director of National Intelligence of the United States (then) filed an Appeal before the Supreme Court of the United States against the Court of Appeal’s decision.

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Decision Overview

Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan.

The central issue before the Court was whether the plaintiffs had Article III standing to challenge the constitutionality of §1881a of the FISA Amendments Act of 2008.

Article III of the U.S. Constitution limits federal courts’ jurisdiction to actual “Cases” and “Controversies,” and standing is a key component of this requirement. To establish standing, a plaintiff must demonstrate a concrete, particularized, and actual or imminent injury that is fairly traceable to the challenged action and redressable by a favorable ruling.

The plaintiffs advanced two primary arguments to establish standing. First, they argued that there was an “objectively reasonable likelihood” that their communications with foreign contacts would be intercepted under §1881a at some point in the future, which would cause them injury. Second, they contended that the risk of surveillance under §1881a had already caused them to suffer present injuries, such as the costs and burdens of taking measures to protect the confidentiality of their communications. The plaintiffs claimed that their communications with individuals associated with terrorist organizations, activists critical of U.S.-supported governments, and those in geographic areas of government focus made them likely targets of surveillance. The plaintiffs asserted that §1881a compromised their ability to gather intelligence, communicate confidential information, and engage in sensitive conversations, forcing them to take costly measures to protect their communications, such as avoiding certain conversations or traveling abroad for in-person meetings. They argued that these measures constituted present injuries traceable to §1881a, as the risk of surveillance necessitated these protective actions, even if no surveillance had yet occurred. [pp. 7, 10-14]

The defendants, including the Director of National Intelligence and other government officials, argued that the plaintiffs lacked standing because their alleged injuries were based on speculative fears of future surveillance rather than concrete and imminent harm. The government emphasized that the plaintiffs could not demonstrate that their communications would certainly be intercepted under §1881a or that any potential surveillance would be directly attributable to this specific provision. The defendants also highlighted the importance of §1881a for national security, as it allows the government to collect foreign intelligence information critical to protecting the United States from threats.

The Court began by reiterating the foundational principles of Article III standing, emphasizing that federal courts’ jurisdiction is limited to actual cases or controversies. [DaimlerChrysler Corp. v. Cuno, (2006)] Standing serves to prevent judicial overreach and maintain the separation of powers, particularly when the Court is asked to rule on the constitutionality of actions taken by other branches of government. The Court stressed that standing requires a concrete, particularized, and imminent injury, and that “threatened injury must be certainly impending” to constitute injury in fact. Allegations of possible future harm are insufficient, as it ensures that speculative claims do not undermine the integrity of Article III standing requirements. [Raines v. Byrd, (1997); Summers v. Earth Island Institute, (2009); Monsanto Co. v. Geertson Seed Farms, (2010) and Friends of the Earth, Inc. v. Laidlaw Environmental Services, (2000)][pp. 7-9]

The Court rejected the plaintiffs’ argument that they could establish standing based on an “objectively reasonable likelihood” of future interception, holding that this standard was inconsistent with the requirement that injury must be “certainly impending.” The Court found the plaintiffs’ theory of standing to be based on a highly speculative chain of possibilities, which did not satisfy the requirement that the injury be fairly traceable to Section 702. [Whitmore v. Arkansas, (1990)] The plaintiffs failed to offer any evidence that their communications had been monitored under Section §1881a or that they had actual knowledge of the government’s targeting practices, which substantially undermined their standing theory. [p. 10]

The Court also noted that even if the plaintiffs could demonstrate that their foreign contacts were likely targets of surveillance, they could only speculate whether the government would use §1881a or other surveillance methods. The government has various alternative surveillance methods available, including older provisions of FISA, intelligence sharing with foreign nations, and potentially FISA-exempt programs governed by Executive Order 12333. Since the plaintiffs could not determine whether any interception would occur under §1881a or another authority, they failed to meet the requirement that their injury must be fairly traceable to §1881a. [pp. 12-13]

The Court further rejected the plaintiffs’ argument that they could establish standing based on speculation about whether the Foreign Intelligence Surveillance Court (FISC) would authorize surveillance under §1881a. The Court emphasized its reluctance to endorse standing theories that rely on guesswork about decisions made by independent actors. The Court noted that this argument relied on a speculative chain of possibilities: (1) the government would target their foreign contacts; (2) it would use Section 702 rather than other surveillance methods; (3) the Foreign Intelligence Surveillance Court (FISC) would approve the surveillance; (4) the government would successfully intercept the communications; and (5) the plaintiffs’ communications would be incidentally acquired. The Court found this chain of contingencies too attenuated to establish that the plaintiffs’ injury was “certainly impending.” §1881a requires the government to obtain FISC approval for targeting and minimization procedures, and the FISC must assess whether these procedures comply with the Fourth Amendment. The uncertainty surrounding FISC’s decisions further undermined the plaintiffs’ argument for standing. [pp. 13-14]

The Court concluded that even if the government were to obtain approval from the FISC to target the plaintiffs’ foreign contacts under Section 1881a, there remains uncertainty about whether the government would successfully acquire their communications. Additionally, even if surveillance were conducted, it’s unclear whether the plaintiffs’ communications would be incidentally intercepted. Thus, the speculative chain of possibilities presented by the plaintiffs fails to establish that injury based on potential future surveillance is certainly impending or fairly traceable to Section 1881a, further weakening their argument for standing. [p. 15]

The Court further dismissed the plaintiffs’ claim that they had standing based on the costly measures they took to avoid surveillance, such as avoiding certain communications or traveling for in-person meetings. The Court held that the Second Circuit’s analysis, which allowed standing based on present costs incurred from a fear of future surveillance, improperly relaxed the fundamental requirements of Article III. The Court noted that the plaintiffs had similar incentives to take protective measures even before §1881a was enacted, casting doubt on whether their present actions could be attributed solely to the potential threat posed by §1881a. The Court concluded that the plaintiffs’ self-inflicted injuries and subjective fear of surveillance did not meet the standard for establishing standing. [pp. 16-19]

The Court rejected the plaintiffs’ reliance on previous cases such as Friends of the Earth, Inc., et al. v. Laidlaw Environmental Services, (2000), Meese v. Keene, (1987), and Monsanto Co. v. Geertson Seed Farms (2010). The Court distinguished these cases, noting that they involved concrete harms and risks supported by evidence, unlike the plaintiffs’ speculative claims in this case. For example, in Laidlaw, the plaintiffs demonstrated ongoing harm from illegal pollutant discharges, while in Monsanto, conventional alfalfa farmers presented evidence of a significant risk of gene flow. The Court emphasized that the plaintiffs’ reliance on conjecture about potential government actions was insufficient to establish standing. [pp. 20-21]

Finally, the Court dismissed the plaintiffs’ argument that they should be granted standing to prevent the insulation of government surveillance activities from judicial review. The Court emphasized that the lack of standing for the plaintiffs did not preclude others from challenging the constitutionality of §1881a. The Court noted that Congress had established a comprehensive scheme for judicial oversight, including review by the FISC and opportunities for affected individuals to challenge the lawfulness of surveillance in judicial or administrative proceedings. Furthermore, individuals affected by §1881a surveillance are provided avenues for challenging its lawfulness, such as advance notice of intent to use acquired information in judicial or administrative proceedings and the ability for electronic communications service providers to challenge surveillance directives before the FISC. The Court referred to relevant case law, including Valley Forge Coll. v. Americans United, (1982); Schlesinger v. Reservists Comm. to Stop the War, (1974), United States v. Richardson, (1974), and Raines v. Byrd, (1997), to reinforce its position that standing cannot be assumed simply because a challenge is desired, and underscores that avenues for judicial review of §1881a exist beyond the plaintiffs’ specific claims. [pp. 21-22]

The Court, in conclusion, held that the plaintiffs lacked Article III standing because they could not demonstrate that the future harm they feared was certainly impending and because they could not manufacture standing by incurring costs in anticipation of non-imminent harm. The Court reversed the judgment of the Second Circuit and remanded the case for further proceedings consistent with its opinion. [p. 23]

Dissenting Opinion

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, argued that the plaintiffs had standing to challenge the FISA Amendments Act because they faced a “substantial risk” of surveillance. He contended that the majority imposed an unreasonably high bar for standing, disregarding the realistic probability that the plaintiffs—human rights organizations, lawyers, and journalists—were likely targets of government surveillance due to their international communications. The dissent emphasized that the plaintiffs had already altered their behavior, incurring significant costs to protect confidential communications, which demonstrated actual harm rather than speculative injury. Breyer also warned that the ruling limited judicial oversight, making it harder to challenge potentially unconstitutional surveillance programs and undermining legal accountability. Citing past precedents where the Court recognized standing based on a reasonable likelihood of harm, he argued that the majority’s decision was inconsistent with established legal principles. Ultimately, the dissent criticized the ruling for shielding government surveillance from judicial scrutiny and for its chilling effect on free speech and legal work.

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