Clapper v. Amnesty Internat’l USA, 133 S.Ct. 1138 (2013)By the time the FISC Court of Review issued its opinion in In re Directives [redacted] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3rd 1004 (FISC Ct Rev. 2008), the challenged provision of the Protect America Act (“PAA”) had expired and been replaced by a less expansive provision for warrantless surveillance in the FISA Amendments Act (“FAA”). As encoded in Sec. 702 of FISA, 50 USC Sec. 1881a, the FAA allows the NSA to engage in warrantless surveillance only if the targets of the surveillance are reasonably believed to be located outside the United States and are neither citizens nor permanent legal residents of the United States.
Amnesty Internat’l was filed by the ACLU on the day the FAA was enacted, and sought a declaration that Sec. 702 violated the First and Fourth Amendments, Article III, and the separation of powers principles of the Constitution. The complaint also sought a permanent injunction against surveillance under Sec. 702.
The plaintiffs in this action were attorneys and human rights, labor, legal and media organizations whose work allegedly required them to engage in sensitive and sometimes confidential telephone and email communications with clients, colleagues, sources, and other people located outside the United States. In order to establish the “injury in fact” required for standing to bring a lawsuit in federal court, the plaintiffs alleged that some of the people overseas with whom they communicated were likely to become targets of surveillance under Sec. 702. On this basis, they claimed that Sec. 702 compromised their ability to locate witnesses, cultivate sources, obtain information and engage in confidential communications. The plaintiffs further alleged that the risk of surveillance had forced them to take costly and burdensome measures, such as traveling abroad, to protect the confidentiality of their international communications.
In a 5-to-4 decision issued on February 26, 2013, the United States Supreme Court held that the plaintiffs did not have standing. Writing for the majority, Justice Alito reasoned that it was merely speculative for the plaintiffs to claim that the people with whom they communicated overseas would be targets of surveillance. In addition, even if the NSA were likely to intercept plaintiffs’ telephone and email communications with their contacts abroad, the plaintiffs had not shown that Section 702, rather than some other source of law, would likely be used to authorize the interceptions. Justice Alito further reasoned that since it was speculative for the plaintiffs to assume that Section 702 would lead to the interception of their overseas communications, any costly and burdensome measures that they had taken to avoid this risk could not Justice Alito further reasoned that since it was speculative for the plaintiffs to assume that Section 702 would lead to the interception of their overseas communications, any costly and burdensome measures that they had taken to avoid this risk could not provide the basis for standing.