- 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.
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.
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 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 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.
United States Supreme Supreme Court
- Opinion of the Court
- Oral Argument Audio
- Oral Argument Transcript
- Brief of Amnesty International USA et al.
- Brief of James R. Clapper, Jr., Director of National Intelligence, et al.
- Reply Brief of James R. Clapper, Jr., Director of National Intelligence, et al.
- “Friend of the Court” Brief in Support of Petitioner Clapper
- “Friend of the Court” Briefs in Support of Respondent Amnesty International
- Transcript of Oral Argument held Oct. 29, 2012
- Brief of Electronic Privacy Information Center et al.
- Brief of Canadian Civil Liberties Association et al.
- Brief of Former Church Committee Members and Staff
- Brief of Gun Owners Foundation
- Brief of the Committee on Civil Rights of the Association of the Bar of the City of New York
- Brief of New York State Bar Association
- Brief of Constitutional Accountability Center
- Brief of Center for Constitutional Rights et al.
- Brief of The Reporters Committee for Freedom of the Press
- Brief of the National Association of Criminal Defense Lawyers
United States Court of Appeals for the Second Circuit
- Amnesty Int’l USA v. Clapper, 667 F.3d 163 (2d Cir. 2011) (denial of reh’g en banc)
- Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011)
United States District Court for the Southern District of New York
- Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d 633 (S.D.N.Y. 2009)
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
- David Kris & J. Douglas Wilson, National Security Investigations & Prosecutions (2012).
- Letter from the Office of the Director of National Intelligence to Senators Wyden and Udall (July 26, 2011)
- Brian Calabrese, Note, Fear-Based Standing: Cognizing an Injury-in-Fact, 68 Wash. & Lee L. Rev. 1445 (2011).
- Scott Michelman, Who Can Sue Over Government Surveillance?, 57 UCLA L. Rev. 71 (2009).
- Office of the Inspector General of the Department of Defense et al., Unclassified Report on the President’s Surveillance Program (2009).
- Orin Kerr, Updating the Foreign Intelligence Surveillance Act, 75 U. Chi. L. Rev. 225 (2008).
- Whitfield Diffie & Susan Landau, Privacy on the Line (MIT Press 2007 ed.).
- James Bamford, Body of Secrets (Anchor Books 2001).
- James Bamford, The Puzzle Palace (1982).
- Final Reports of the S. Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 94-755 (1976) (“Church Committee Report”)
- Adam Liptak, Supreme Court Dismisses Challenge to Surveillance Law, Wash. Post, Feb. 26, 2013.
- Greg Stohr, Wiretapping-Law Challenges Barred by U.S. Supreme Court, Bloomberg, Feb. 26, 2013.
- Nina Totenberg, Supreme Court Makes It Harder to Challenge Foreign Intelligence Surveillance Act, NPR, Feb. 26, 2013.
- David Savage, Supreme Court Rules Out Secret Surveillance Lawsuit, L.A. Times, Feb. 26, 2013.
- Richard Wolf, Supreme Court Blocks Challenge to Anti-Terrorism Law, USA Today, Feb. 26, 2013.
- Warren Richey, Surveillance Law: U.S. Group Can’t Challenge It, Supreme Court Rules, Christian Sci. Monitor, Feb. 26, 2013.
- Jesse J. Holland, Court Won’t Allow Challenge to Surveillance Law, AP, Feb. 26, 2013.
- Lawrence Hurley & Jonathan Stemple, Supreme Court Throws Out Challenge to Surveillance Law, Reuters, Feb. 26, 2013.
- Jonathan Stemple, Supreme Court Weighs Challenge to Eavesdropping Law, Reuters, Oct. 29, 2012.
- David Savage, Supreme Court May Let Suit Against U.S. Wiretapping Law Proceed, L.A. Times, Oct. 29, 2012.
- Robert Barnes, At Supreme Court, Challengers to Wiretap Law Say Its Secrecy Creates a Catch 22, Washington Post, Oct. 29, 2012.
- Jess Bravin, High Court Weighs Surveillance Suit, Wall St. J, Oct. 29, 2012.
- Jesse J. Holland, Court Skeptical About Tossing Surveillance Suit, Associated Press, Oct. 29, 2012.
- Adam Liptak, Supreme Court Hears Challenge to Wiretaps Law, NY Times, Oct. 29, 2012, at A13.
- Nina Totenberg, Despite Hurricane, Justices Hear Surveillance Case, NPR (Oct. 29, 2012).
- Laurie Asseo, Supreme Court Justices May Allow Challenge to Wiretap Law, Bloomberg Oct. 29, 2012.
- Editorial, Surveillance and Accountability, N. Y. Times, Oct. 28, 2012 at A26.
- Garrett Epps, Is Big Brother The New Normal? The Supreme Court Will Decide, The Atlantic, Oct. 28, 2012.
- Eric Posner, Why Amnesty Should Lose at the Supreme Court, Slate, Oct. 26, 2012.
- Adam Liptak, Supreme Court Agrees to Hear Surveillance Case, N.Y. Times, May 21, 2012.
- Robert Barnes, Supreme Court Agrees to Hear Case on Electronic Surveillance, Wash. Post, May 21, 2012.
- David G. Savage, Justices to Hear Suit Challenging Wiretap Program, Chicago Tribune, May 22, 2012.
- Eric Lichtblau & James Risen, Officials Say U.S. Wiretaps Exceeded Law, N.Y. Times, Apr. 16, 2009 at A1.
- Howard Wasserman, So Much For Unanimity, ProfsBlawg (Feb. 26, 2013).
- Jonathan Adler, No Standing to Challenge FISA Surveillance, Volokh Conspiracy (Feb. 26, 2013)
- Ruthann Robson & Steven D. Schwinn, No Standing to Challenge FISA Amendments on Domestic Surveillance, Supreme Court Holds, Constitutional Law Prof Blog (Feb. 26, 2013)
- Julian Sanchez, Secret Spying and the Supreme Court’s Constitutional Catch-22, Cato@Liberty (Feb. 26, 2013)
- Kent Scheidegger, FISA and Standing, Crime & Consequences (Feb. 26, 2013)
- Joe Mullin, Supreme Court Kills Activists’ Challenge to FISA Spying Law, ArsTechnica (Feb. 26, 2013)
- David Kravets, Supreme Court Thwarts Challenge to Warrantless Surveillance, Wired, (Feb. 26, 2013)
- Matt Sledge, Clapper v. Amnesty International, Warrantless Wiretapping Challenge, Struck Down By Supreme Court, Huff. Post (Feb. 26, 2013)
- Lyle Denniston, Opinion Recap: Global Wiretap Challenge Thwarted, SCOTUSblog (Feb. 26, 2013)
- Orin Kerr, Oral Argument in Clapper v. Amnesty International, Volokh Conspiracy (Oct. 29, 2012).
- David Kravets, All Three Branches Agree, Big Brother Is the New Normal, Wired (Oct. 29, 2012).
- Jim Harper, The Fourth Amendment in the Supreme Court This Week, Cato@Liberty (Oct. 29, 2012).
- Debra Cassens Weiss, Supreme Court to Consider Right to Sue in Challenge to Wiretap Law, ABA Journal (Oct. 29, 2012).
- Steven D. Schwinn, Government Faces Skeptical Court on Standing to Challenge FISA Amendments, Constitutional Prof Blog (Oct. 29, 2012).
- Josh Gerstein, SCOTUS Reveal Little on Leanings in Surveillance Case, Politico (Oct. 29, 2012).
- Jameel Jaffer & Alexander Abdo, Flaw in the Government’s Logic on Wiretapping, CNN Opinion (Oct. 29, 2012).
- Lyle Denniston, Argument Recap: Sensitive to the Lawyers’ Dilemma, SCOTUSblog (Oct. 29, 2012).
- Kali Borkoski, Suing Over Surveillance Secrets, SCOTUSblog (Oct. 29, 2012).
- Steve Vladeck, More on Clapper and the Foreign Intelligence Surveillance Exception, Lawfare (May 23, 2012).
- Steve Vladeck, Why Clapper Matters: The Future of Programmatic Surveillance, Lawfare (May 22, 2012).
- Lyle Denniston, Narrow review of global wiretaps, SCOTUSblog (May 21, 2012, 12:01 PM).
- Jonathan H. Adler Court to Consider Standing to Challenge FISA Surveillance, The Volokh Conspiracy (May 21, 2012).
- Orin Kerr, Second Circuit Divides 6-6 on Rehearing Standing Case to Challenge FISA Amendments Act, Volokh Conspiracy (Sept. 22, 2011, 11:08 AM).
- Orin Kerr, Amnesty International USA v. Clapper and Standing to Challenge Secret Surveillance Regimes, Volokh Conspiracy (Mar. 24, 2011, 2:46 AM).
- David Kris, A Guide to the New FISA Bill, Part 1 (June 21, 2008).