Court to Consider Standing to Challenge FISA Surveillance

This morning the Supreme Court accepted certiorari in Clapper v. Amnesty International USA, which presents the question whether journalists and human rights organizations have standing to challenge the constitutionality of electronic surveillance of international communications without direct evidence their communications have been surveilled. In this case, the U.S. Court of Appeals for the Second Circuit held standing could be claimed because the plaintiffs had a reasonable fear of surveillance and undertook “costly and burdensome measures” to protect the confidentiality of their communications. Unsurprisingly, the SG’s office filed a cert petition. Because this decision created a circuit split with the U.S. Court of Appeals for the Sixth Circuit, a cert grant was virtually assured.

Thus far, the Roberts Court has stood pat on standing, neither raising nor lowering the hurdles to Article III standing. In this case, it will be interesting to see whether this trend continues.

Orin also blogged on this case here and here.