On Monday, the Second Circuit handed down a very important decision on standing to challenge secret surveillance programs in Amnesty International USA v. Clapper. The decision, by Judge Gerard Lynch and joined by Judges Calabresi and Sack, offers a very easy way for plaintiffs to have Article III standing to challenge secret surveillance statutes. The opinion strikes me as puzzling, however, and it appears to be in conflict with other Courts of Appeals cases on standing to challenge surveillance regimes. I suspect Supreme Court review is a serious possibility.
The new decision holds that the plaintiffs have established Article III standing to challenge Section 702 of the Foreign Intelligence Surveillance Act, which creates new procedures for authorizing government electronic surveillance targeting non-United States persons outside the United States for purposes of collecting foreign intelligence. The plaintiffs in the case are attorneys, journalists, and labor, legal, media, and human rights organizations who claim to believe that they may be monitored in the future pursuant to the statute, and they are claiming that their fear of surveillance — and costly measures they have taken to circumvent the monitoring that they think is likely — gives them Article III standing to challenge the surveillance program. Article III standing requires three elements: (1) injury in fact, which means an invasion of a legally protected interest that is concrete and particularized; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and (3) a likelihood that the injury will be redressed by a favorable decision.
The opinion is pretty complicated, but here’s the basic idea as I understand it. According to Judge Lynch, there is obviously injury in fact: By spending money to avoid surveillance, the plaintiffs suffered an injury-in-fact of losing money. Judge Lynch then concludes that the injury is fairly traceable to the surveillance if the plaintifs’ belief that they are going to be monitored is reasonable. Here’s the key passage:
If the plaintiffs can show that it was not unreasonable for them to incur costs out of fear that the government will intercept their communications under the FAA, then the measures they took to avoid interception can support standing. If the possibility of interception is remote or fanciful, however, their present-injury theory fails because the plaintiffs would have no reasonable basis for fearing interception under the FAA, and they cannot bootstrap their way into standing by unreasonably incurring costs to avoid a merely speculative or highly unlikely potential harm. Any such costs would be gratuitous, and any ethical concerns about not taking those measures would be unfounded. In other words, for the purpose of standing, although the plaintiffs’ economic and professional injuries are injuries in fact, they cannot be said to be “fairly traceable” to the FAA – and cannot support standing – if they are caused by a fanciful, paranoid, or otherwise unreasonable fear of the FAA.
Of course, no one really knows who is being monitored or when. But Judge Lynch concludes that the plaintiffs have standing because their fear of being monitored does not seem fanciful based on “a realistic understanding of the world.” From the opinion:
The plaintiffs have established that they suffered present injuries in fact – economic and professional harms – stemming from a reasonable fear of future harmful government conduct. They have asserted that the FAA permits broad monitoring through mass surveillance orders that authorize the government to collect thousands or millions of communications, including communications between the plaintiffs and their overseas contacts. The FAA is susceptible to such an interpretation, and the government has not controverted this interpretation or offered a more compelling one.
. . . .
The [plaintiff's] fears are fairly traceable to the FAA because they are based on a reasonable interpretation of the challenged statute and a realistic understanding of the world. . . . . These plaintiffs . . . . have successfully demonstrated that their legitimate professions make it quite likely that their communications will be intercepted if the government – as seems inevitable – exercises the authority granted by the FAA.
The government argues the plaintiffs have failed to establish standing because the FAA does not itself authorize surveillance, but only authorizes the FISC to authorize surveillance. As a result, the government says the plaintiffs must speculate about at least two intervening steps between the FAA and any harm they might suffer as a result of the government conducting surveillance: first, that the government will apply for surveillance 6 authorization under the FAA, and, second, that the FISC will grant authorization.
But this argument fails. The presence of an intervening step does not, as a general rule, by itself preclude standing. Nor do the particular intervening steps the government identifies here – the government’s seeking authorization and the FISC’s approving it – preclude standing. With respect to the first step, as discussed above, it is more than reasonable to expect that the government will seek surveillance authorization under the FAA. We therefore cannot say that uncertainty about this step significantly attenuates the link between the FAA and the plaintiffs’ harms. Nor does the second intervening step add significant uncertainty. . . . It verges on the fanciful to suggest that the government will more than rarely fail to comply with the formal requirements of the FAA once it has decided that the surveillance is warranted.
How do the judges know these things? As best I can tell, they just sort of know, based on some news stories, an occasional FISA report, and their “realistic understanding of the world.”
If this new decision is right, then challenging secret surveillance statutes would seem to be pretty easy — in stark contrast with the previous understanding that it was extremely difficult. Other courts have held that standing requires a showing of actually being monitored. Under that standard, it is almost impossible to challenge new statutory surveillance authorities under the Fourth Amendment.
According to Judge Lynch, however, a reasonable fear of being monitored is enough. Since no one knows what the new secret programs actually are, but lots of people fear that they are very broad, you just need to get a broad class of people together who are really afraid of the surveillance, and then have them spend some money. On summary judgment, the plaintiff’s facts will be treated as true. Since the Government won’t say what the new secret surveillance program is, but the news reports usually report the scope of surveillance programs as extremely broad, no one will rebut the fears of surveillance and the judges will find the fears reasonable, creating Article III standing. True, the judges won’t know what the program is, either. But because they believe their own opinions are realistic, their lack of actual knowledge is no longer a barrier to standing. If this new decision holds, Article III standing to challenge surveillance programs would seem to now be pretty simple.
Whether you like the new decision or not, I suspect it’s not the last we’ve heard on this issue. The opinion strikes me as in pretty direct tension with cases like ACLU v. NSA, the 6th Circuit’s case rejecting standing for the NSA’s warrantless surveillance program during the Bush years. Given the importance of the issue, and the tensions among the circuits, I would suspect this case may be headed upstairs.