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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

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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.


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


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

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