No Standing to Challenge FISA Surveillance

Today, in Clapper v. Amnesty International USA, the U.S. Supreme Court held that petitioners Amnesty International, et al., lacked standing to challenge surveillance of international communications under the Foreign Intelligence Surveillance Act.  The Court split 5-4 along traditional right-left lines.  Justice Alito wrote for the majority opinion.  Justice Breyer dissented.  Here is the introduction from Justice Alito’s opinion:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a (2006 ed., Supp. V), allows the Attorney General  and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons”1 and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under §1881a. Respondents seek a declaration that §1881a is unconstitutional, as well as an injunction against §1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.

Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” E.g., Whitmore v. Arkansas, 495 U. S. 149, 158 (1990). And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of §1881a-authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing.

For background on the case from the VC, here are some posts by Orin on the Second Circuit’s opinion below, the court’s 6-6 split en banc, and the oral argument, and posts by me on the Sixth Circuit’s opinion addressing this issue and the cert grant.  Several posts from the Lawfare Blog providing additional background are linked here.