Focusing public attention on emerging privacy and civil liberties issues

Clapper v. Amnesty Int'l USA

Concerning the Standing of Public Interest Organizations, Journalists, and Lawyers to Challenge the Constitutionality of the FISA Amendments Act of 2008

Top News

  • 2012 FISA Orders Up, National Security Letters Down, No Surveillance Request Denied: According to the 2012 Foreign Intelligence Surveillance Act (FISA) Report, the Department of Justice submitted 1,856 applications to the Foreign Intelligence Surveillance Court (FISC), a 6.4% increase over 2011. Of the 1,856 search applications, 1,789 sought authority to conduct electronic surveillance. The FISC did not deny any of the applications, although one was withdrawn by the Government. However, the FISC did make modifications to 40 of the applications, including one from the 2011 reporting period. In addition to the FISA orders, the FBI sent 15,229 National Security Letter requests for information concerning 6,223 different U.S. persons. This is a modest decrease from the 16,511 requests sent in 2011. Almost no information is available about FISA surveillance beyond the figures contained in the annual FISA letter, sent to the Senate each year by the Department of Justice, Office of Legislative Affairs. EPIC has recommended greater reporting of FISC applications and opinions, similar to what is disclosed in the Federal Wiretap Reports. For more information, see EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2012 and EPIC: Foreign Intelligence Surveillance Act. (May. 2, 2013)
  • Supreme Court Blocks Challenge to FISA Surveillance: The Supreme Court ruled today in Clapper v. Amnesty Int'l USA that a constitutional challenge to the Foreign Intelligence Surveillance Act (FISA) cannot go forward. A group of attorneys and journalists alleged that the U.S. government could be intercepting their communications with their foreign contacts, in violation of the Fourth Amendment. In a divided 5-4 decision, Justice Alito wrote that the group's alleged injuries were too speculative to be considered. Justice Breyer, joined by Justices Ginsburg, Kagan, and Sotomayor, dissented and said that the Court's "certainly impending" standard was inconsistent with prior decisions. Justice Breyer also cited EPIC's "friend of the court" brief which described the extraordinary capacity of the NSA to capture private communications. For more information, see EPIC: Clapper v. Amnesty Int'l USA and EPIC: FISA. (Feb. 27, 2013)
  • Senate to Debate Privacy Amendments for Surveillance Law: The Senate is scheduled to debate several proposals that would establish new safeguards for the FISA Amendments Act, a controversial law that allows surveillance of the phone and email communications of US citizens without a warrant. Earlier this year, EPIC testified before the House Judiciary Committee, and recommended increased transparency and new public reporting of the Government's surveillance activities. Currently, the FISA letter to Congress provides little information about Government conduct. "Congress should not reauthorize the FISA Amendments Act until adequate oversight procedures are in place," EPIC Executive Director Marc Rotenberg said at the May hearing. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International. (Dec. 26, 2012)
  • Justices Hear Arguments in Surveillance Standing Case: The Supreme Court heard oral arguments in Clapper v. Amnesty International, a case concerning the right to challenge illegal surveillance. A federal appeals court ruled in favor of a group of plaintiffs, including human rights advocates, journalists and attorneys, and held that their costs incurred to avoid surveillance were sufficient to establish a live controversy under the Constitution. Solicitor General Donald Verilli, arguing on behalf of the United States and the Director of National Intelligence, claimed that plaintiffs could not establish a sufficiently concrete injury because they do not know if they had been subject to surveillance. The Justices, including Justice Kennedy, seemed concerned about the possibility of government surveillance of privileged attorney-client communications. EPIC filed an amicus brief, joined by thirty-two legal scholars and technical experts, and six privacy and open government organizations, arguing that the plaintiffs concerns were well founded considering the surveillance capabilities of the NSA and the failure to establish sufficient public reporting requirements for lawful surveillance. For more information, see: EPIC: Clapper v. Amnesty Int'l USA and EPIC: Foreign Intelligence Surveillance Act. (Oct. 29, 2012)
  • EPIC Urges Supreme Court to Uphold Review of Wiretapping Programs: Today EPIC filed an amicus brief with the US Supreme Court in Clapper v. Amnesty International USA, a case challenging the interception of communications of US persons under foreign intelligence surveillance laws. This case presents the issue of constitutional "standing," whether the journalists and human rights organizations who brought he lawsuit can establish an imminent threat or reasonable fear that their communications will be collected. The federal appeals court found in their favor. In urging affirmance, EPIC argued that the capacity of National Security Agency to intercept private communications combined with the failure to establish meaningful oversight underscores the concern that the interception of private communications would occur. The EPIC brief is supported by 32 legal scholars and technical experts, and six organizations devoted to privacy and open government. For more information, see EPIC: Clapper v. Amnesty, EPIC: Foreign Intelligence Surveillance Act (FISA). (Sep. 24, 2012)
  • House Renews Foreign Intelligence Surveillance Powers: The House has voted to reauthorize the FISA Amendments Act (301-118). The Act authorizes programs of surveillance intended to target foreign agents, but allows collection of private communications of United States citizens without individualized suspicion. In May 2012, EPIC Executive Director Marc Rotenberg testified before the House Judiciary Committee on the legislation and recommended new oversight procedures. The Senate has yet to consider the measure. Senator Ron Wyden (D-OR) and others have expressed concern about renewal of the Act. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International USA. (Sep. 12, 2012)
  • FISA Reform Proposal Moves Forward in Senate: The Senate Judiciary Committee has approved a bill that would established new safeguards for the Foreign Intelligence Surveillance Amendments Act. The Act provides for court approval of 'programs of surveillance' that allow for the collection of communications of US citizens. The bill, sponsored by Senator Patrick Leahy (D-VT), would renew the Act but also establish new reporting requirements to improve government accountability. In May 2012, EPIC Executive Director Marc Rotenberg testified before the House Judiciary Committee, and recommended increased oversight and reporting. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International USA. (Jul. 20, 2012)
  • House Panel Votes to Renew Surveillance Law Without New Safeguards: The House Judiciary Committee voted to reauthorize the FISA Amendments Act, HR 5949, through Dec. 31, 2017 without any changes. The Act authorizes "programs of surveillance" intended to target foreign agents, but also allows collection of private communications of United States citizens without individualized suspicion. EPIC Executive Director Marc Rotenberg recently testified before the Committe and recommended that Congress strengthen oversight procedures to protect privacy and limit possible misuses of the legal authority. But amendments to improve accountability introduced by Rep. John Conyers (D-MI), Rep. Jerold Nadler (D-NY), Rep. Bobby Scott (D-VA), and Rep. Sheila Jackson-Lee (D-Texas), were all defeated. In the Senate, Senator Ron Wyden (D-OR) and others have expressed concern about renewal of the Act. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International USA. (Jun. 21, 2012)
  • House to Consider Bill to Reauthorize Expansive Surveillance Law: The House Committee on the Judiciary will markup the FISA Amendments Act Reauthorization Act of 2012 on Tuesday, June 19, 2012. The Act authorizes government surveillance of international communications, including the private communications of United States citizens. Currently, the law provides little information to Congress or the public about these surveillance activities. EPIC Executive Director Marc Rotenberg recently testified at an oversight hearing, and called on Congress to strengthen oversight procedures and increase transparency before the Act is renewed. In a recent report by the Senate Intelligence Committee, Senators Mark Udall and Ron Wyden also said that the FISA contains a loophole that allows the government "to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens." For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International. (Jun. 18, 2012)
  • EPIC to Congress: "Strengthen FISA Oversight": EPIC Executive Director Marc Rotenberg will testify before the House Judiciary Subcommittee on the FISA Amendments Act of 2008. The Act authorizes Government surveillance of international communications, including the private communications of U.S. citizens. EPIC will recommend increased transparency and new public reporting of the Government's surveillance activities. Currently, the FISA letter to Congress provides little to no information about Government conduct. "Congress should not reauthorize the FISA Act until adequate oversight procedures are in place," Rotenberg said. The hearing will be webcast. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International. (Jun. 1, 2012)

Question Presented

  • Whether Respondents have established Article III standing to seek prospective relief based on their claims that the United States would imminently acquire their international communications - based upon their understanding of the application of the FISA Amendments Act - using Section 1881a-authorized surveillance.

Background

This case tests whether economic and professional costs related to the reasonable fear of being monitored under the Foreign Intelligence Surveillance Act constitute an injury sufficient to give the plaintiffs the right to challenge the law in an Article III court.

The Foreign Intelligence Surveillance Act and the FISA Amendments Act of 2008

The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 to remedy abuses of electronic surveillance conducted for the purposes of national security. It establishes a separate legal regime for "foreign intelligence" surveillance. Whereas in ordinary criminal investigations, warrantless interception of telephone and email communications by the federal government is considered to be a serious encroachment on individuals rights of privacy and liberty, FISA allows the federal government to conduct surveillance as long as it shows that there is probable cause to believe that the target is a foreign power or an agent of a foreign power. The government does not have to make a showing of individualized suspicion as to criminal conduct.

Per usual procedure, a FISA Court ("FISC") issues a "FISA warrant" upon a demonstration of probable cause that the target is a foreign power or agent thereof, but there are numerous exceptions to this procedure. Of particular importance is Section 702 of the FISA Amendments Act of 2008 ("FAA"), codified as 50 U.S.C. 1181a, which allows the Attorney General and the Director of National Intelligence ("DNI") to authorize jointly the targeting of non-United States persons for the purposes of gathering intelligence for a period of up to one year. 50 U.S.C. 1881a(1). Section 702 contains restrictions, including the requirement that the surveillance "may not intentionally target any person known at the time of acquisition to be located in the United States." 50 U.S.C. ยง 1881a(b)(1). The Attorney General and DNI must submit to the FISC an application for an order ("mass acquisition order") for the surveillance either before their joint authorization or within seven days thereof. The FAA sets out a procedure by which the Attorney General and DNI must obtain certification from FISC for their program, which includes an assurance that the surveillance is designed to limit surveillance to persons located outside of the United States. However, the FAA does not require the government to identify targets of surveillance, and the FISC does not consider individualized probable cause determinations or supervise the program. The FAA permits interception of the communications of United States persons so long as the surveillance program was not designed to target those persons but rather the foreign actors with whom they communicated.

Clapper on the Merits

The plaintiffs are attorneys and human rights, labor, legal, and media organizations who regularly engage in sensitive or privileged telephone and email communications. In July 2008, they sued in the Southern District of New York for a declaratory judgment that the FAA violated their constitutional rights to privacy and free speech. They have not cited specific instances in which their communications have been intercepted, but rather have emphasized their "fear that their communications will be monitored," which compelled them "to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs." Amnesty Int'l USA v. Clapper, 638 F.3d 118, 122 (2d Cir. 2011). Thus, the plaintiffs proffer two bases for standing: the fear of being monitored and costs incurred because of that fear.

Procedural History

This case has not yet reached the merits stage. The district court dismissed the plaintiff's claim for lack of standing. The court explained that circuit precedent required a more substantive alleged harm than the fear of monitoring, which the court called "abstract" and "hypothetical." Amnesty Int'l USA v. McConnell, 646 F. Supp. 2d 633, 646, 659 (S.D.N.Y. 2009). Costs incurred to protect communications from interception were not sufficient to support standing because these costs were not independent from the fear of interception. Id. at 653.

On review, the Second Circuit reversed the district court, concluding that the plaintiffs suffered an injury-in-fact in the form of economic and professional harms. Judge Lynch reasoned that the plaintiff's fear of being monitored was reasonable based on a "realistic understanding of the world." Because it was reasonable for the plaintiffs to fear monitoring under the FAA, the measures they took to prevent the interception of these communications is sufficient to support standing.

The Circuit split 6-6 in refusing to reconsider the decision en banc. In its petition for certiorari to the Supreme Court, the government argued that the Second Circuit erroneously found that the plaintiffs suffered a harm because the costs incurred by the plaintiffs are the plaintiffs' own doing.

The Supreme Court granted review of Clapper on May 21.

EPIC's Interest in Clapper v. Amnesty Int'l USA

EPIC has a strong interest in protecting important Fourth Amendment rights, including the privacy of personal communications. The FAA, particularly Section 702, establishes a regime that allows the federal government to conduct mass surveillance of communications, including communications of American citizens, without a warrant or without particularized suspicion. Such sweeping governmental surveillance is contrary to established Fourth Amendment principles, and it threatens the privacy of all Americans, especially those engaged in international communications.

The question before the Supreme Court, whether the plaintiffs can establish standing to challenge a mass surveillance program, is critically important to protecting Fourth Amendment privacy rights. The government's foreign intelligence activities necessarily involve a great deal of secrecy, and mass surveillance under the FAA is not a transparent process. A failure to recognize plaintiff's legitimate fears that their communications are being intercepted, especially where plaintiffs regularly communicate with international clients and confidential sources, would effectively bar judicial review of FISA-authorized surveillance programs. Proceedings in the FISA Court of Review are not adversarial, and it is nearly impossible to challenge its decisions. Notably, in In re Directives, the FISA Court of Review recognized a foreign intelligence surveillance exception to the Fourth Amendment. Without an individual's right to challenge unlawful government action in Article III courts, important civil and constitutional rights may never be vindicated.

The Supreme Court's Decision

The Supreme Court ruled on February 26, 2013 that a constitutional challenge to the Foreign Intelligence Surveillance Act cannot go forward. The Court stated that the Respondents had not presented sufficient proof to establish standing to sue the federal government. In a divided 5-4 decision, Justice Alito wrote that the group's alleged injuries were too speculative to be considered. The majority said that the group could not prove, with “certainly impending” likelihood, that the government has intercepted or would intercept their communications. The Court said that the group’s expenditures and attempts to avoid government surveillance are also not sufficient to get their case heard in court. Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas also signed on to the majority opinion.

Justice Breyer, joined by Justices Ginsburg, Kagan, and Sotomayor, dissented and said that the Court's "certainly impending" standard was inconsistent with prior decisions. Justice Breyer wrote that to be heard in court, a party need only show a reasonable apprehension or reasonable likelihood that they will be injured by the government’s actions. He wrote that these attorneys and journalists communicate with exactly the types of people that the government would have an interest in monitoring, and therefore it is likely that their communications are being or would be intercepted. Justice Breyer also cited EPIC's "friend of the court" brief which described the extraordinary capacity of the NSA to capture private communications. EPIC’s brief discussed the history of the NSA’s warrantless wiretapping, the NSA’s expanding capabilities, and FISA’s lack of transparency or oversight.

Legal Documents

United States Supreme Supreme Court

United States Court of Appeals for the Second Circuit

United States District Court for the Southern District of New York

Resources

Supreme Court Precedent

  • Summers v. Earth Island Inst., 555 U.S. 488 (2009)
  • Massachusetts v. EPA, 549 U.S. 497 (2007)
  • Lujan v. Defenders of Wildlife, 504 U.S> 555 (1992)
  • United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)
  • City of Los Angeles v. Lyons, 461 U.S. 95 (1983)
  • Babbitt v. United Farm Workers Nat'l Union, 442 U.S> 289 (1979)
  • Warth v. Seldin, 422 U.S. 490 (1975)
  • Laird v. Tatum, 408 U.S. 1 (1972)

Second Circuit Precedent

  • Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003)
  • Vt. Right to LIfe Comm. v. Sorrell, 221 F.3d 376 (2d Cir. 2000)
  • St. Pierre v. Dyer, 202 F.3d 394 (2d Cir. 2000)
  • Curtis v. City of New Haven, 726 F.2d 65 (2d Cir. 1984

Other Relevant Precedent

  • In re Directives, (FISA Ct. Rev. 2008)
  • ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007)
  • In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002)
  • United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984)

Law Review Articles, Books, and Other Sources

News Reports

Print Media

Blogs