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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

  • EPIC Obtains Secret Attorney General Reports on Electronic Surveillance: As a result of an FOIA lawsuit, EPIC has obtained copies of the Attorney General Reports on the government's electronic surveillance activities. These reports have been submitted to Congress every six months since 2001 but have never before been disclosed to the public. These reports include new details about government collection of telephone and Internet records. The reports include the number of US persons targeted for "Pen Register" surveillance under the Foreign Intelligence Surveillance Act. The reports also contain noncompliance incidents and significant foreign intelligence court opinions, but those details have been withheld by the Justice Department. The documents obtained by EPIC also show that the Justice Department told Congress that the collection of telephone subscriber information would decrease, even after the section 215 bulk collection program began. The case is EPIC v. Dept. of Justice, No. 13-961. For more information, see EPIC v. DOJ - FISA Pen Registers and EPIC: FISA Stats. (Mar. 19, 2014)
  • In FOIA Lawsuit, EPIC Obtains Secret Reports on Data Collection: In a Freedom of Information Act lawsuit, EPIC has obtained reports that detail the number of times the Surveillance Court authorized the use of techniques that gather the telephone numbers and metadata of phone customers and Internet users. The previously secret reports obtained by EPIC cover the period between 2000 and 2013. The reports reveal a dramatic increase in the use of these techniques in 2004 and then a significant reduction in 2008, likely the consequence of a shift to other investigative techniques. The documents show that nearly all applications to the Surveillance Court were approved without modifications. In 2013, EPIC petitioned the Supreme Court to end the bulk telephone record collection program. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information see: EPIC v. Department of Justice - Pen Register Reports, EPIC: Foreign Intelligence Surveillance Court Orders 1979-2012, and In re EPIC. (Mar. 3, 2014)
  • Federal Communications Commission Seeks Public Comment to Protect Phone Record Privacy: The Federal Communications Commission has invited public comments on a petition requesting the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. EPIC joined the petition, which was organized by Public Knowledge. In 2013, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. In 2013 EPIC also wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. Public comments on the petition are due January 17, 2014 and reply comments are due February 3, 2014. For more information, see EPIC: CPNI (Customer Proprietary Network Information), and EPIC: Foreign Intelligence Surveillance Act. (Jan. 7, 2014)
  • Senate Confirms Judge Wald for Privacy Oversight Board: The Senate confirmed the reappointment of Judge Patricia M. Wald to the Privacy and Civil Liberties Oversight Board. Judge Wald's current term was set to expire next month, but President Obama re-nominated her on March 21, 2013. Last year, EPIC recommended that the Oversight Board, consistent with its mandate, pursue a broad agenda, including (1) suspension of the Fusion Center Program ; (2) limiting closed-circuit television surveillance; (3) eliminating the use of body scanners; (4) establishing privacy regulations for drones; (5) improving Information Sharing Environment (ISE) and Suspicious Activity Reporting (SARS) Standards; and (6) Privacy Act adherence. More recently, EPIC addressed the Board at a workshop on NSA Surveillance. And in response to a public rulemaking, EPIC also provided extensive comments on a proposed rule governing the Board's Freedom of Information Act practices. The Board adopted nearly all of EPIC's recommendations on transparency. For more information, See EPIC: Foreign Intelligence Surveillance Act and EPIC: Open Government. (Dec. 13, 2013)
  • Presidential Task Force to Recommend Changes at NSA : The Review Group on Intelligence and Communications Technologies, established to recommend surveillance reforms, will send a final report to the President this Sunday. According to one news article, the task force will recommend putting a civilian leader in charge of NSA, separating out the code-breaking "Information Assurance Directorate," and splitting the U.S. Cyber Command off into a separate military unit. The Review Group will also recommend new limits on the NSA’s ability to search telephone call records, proposing that telephone records be stored with a third party rather than the NSA. The group will also recommend safeguards for the data of European citizens, and restrictions on the use of National Security Letters. Earlier this year, EPIC filed a petition with the U.S. Supreme Court, supported by legal scholars and former members of the Church Committee, arguing that the NSA bulk collection program was unlawful. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Foreign Intelligence Surveillance Act Reform, and EPIC: In re EPIC. (Dec. 13, 2013)
  • EPIC Supports Petition Urging FCC to Protect Phone Record Privacy: EPIC has joined a petition to the Federal Communications Commission, organized by Public Knowledge, that asks the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. Last month, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. And in June, following the initial Snowden disclosure, EPIC wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. EPIC has also long supported the FCC's consumer privacy enforcement authority, filing amicus briefs in significant cases, including US West v. FCC and NCTA v. FCC, to defend the agency’s privacy regulations. For more information, see EPIC: CPNI (Customer Proprietary Network Information), EPIC: Foreign Intelligence Surveillance Act. (Dec. 11, 2013)
  • EPIC Asks Federal Court to Require Immediate Release of Government Surveillance Reports: EPIC has filed a Freedom of Information Act lawsuit for the reports that detail the NSA's collection of call record information from US telephone companies. Citing the Department of Justice's failure to comply with EPIC original EPIC's FOIA Request and the urgency to inform the public, EPIC has also filed a motion for a preliminary injunction, asking a federal judge to rule within 20 days on EPIC’s legal claims. EPIC is seeking the reports that the Justice Department has routinely prepared for Congress but never made available to the public. The Foreign Intelligence Surveillance Court, relying on these reports, has approved the bulk, suspicionless collection of Internet and e-mail data, which is now widely debated. For more information, see EPIC: EPIC v. DOJ (Pen Register / Trap and Trace). (Dec. 9, 2013)
  • EPIC Urges FCC to Investigate AT&T’s Practice of Selling Consumer Phone Records: In a letter to Federal Communications Commission Chairman Tom Wheeler, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. EPIC's letter follows an earlier letter where EPIC asked the FCC to resolve whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. EPIC's letter also informed the Commission that the National Association of Regulatory Utility Commissioners has issued a draft resolution underscoring the crucial role of the FCC in protecting consumer information. For more information, see EPIC: In re EPIC and EPIC: Foreign Intelligence Surveillance Act. (Nov. 18, 2013)
  • Leahy and Sensenbrenner Introduce USA FREEDOM Act: The Democratic Chair of the Senate Judiciary Committee and the Republican author of the Patriot Act have introduced the USA FREEDOM Act, which would reform the Foreign Intelligence Surveillance Act and limit NSA surveillance activities. A bi-partisan coalition, including 17 Senators and 70 Members of Congress, have joined as original co-sponsors. Key provisions of the FREEDOM Act increase transparency of intelligence activities, prevent end-runs around the FISA Court, and improve public reporting. In 2012 EPIC testified before the House Judiciary Committee about the need to reform FISA and to improve oversight of the FISA court. The FREEDOM Act also ends the controversial bulk phone records collection program. EPIC has brought a challenge in the Supreme Court to the phone records program, explaining that it is unlawful under current law. For more information, see EPIC: In re EPIC and EPIC - Foreign Intelligence Surveillance Act. (Oct. 29, 2013)
  • Government Responds to EPIC's Supreme Court Challenge of NSA Telephone Record Program: The Solicitor General has filed a response to EPIC's challenge to the NSA's telephone record collection program. In July, EPIC petitioned the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court that requires Verizon to turn over all telephone records to the NSA. EPIC argued that the Intelligence Court exceeded its legal authority and could not compel a telephone company to disclose so much personal information unrelated to a foreign intelligence investigation. Legal scholars and former Members of Congress filed briefs in support of EPIC's petition, including privacy and national security scholars, constitutional scholars, federal courts scholars, and members of the Church Committee. Congressman James Sensenbrenner, the primary author of the Patriot Act, has said that the telephone records collection program was never authorized by Section 215. For more information, see In re EPIC. (Oct. 14, 2013)

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. § 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

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