Clapper v. Amnesty International USA

Article III requires a plaintiff to show an injury that is concrete, particularized, actual or imminent, fairly traceable to the challenged conduct, and redressable by a favorable judgment. For a threatened future injury, the Court's usual rule is that the injury must be certainly impending; allegations of a merely possible future injury do not suffice. The Court rejected the Second Circuit's less demanding "objectively reasonable likelihood" standard as inconsistent with that requirement.

The plaintiffs' theory depended on a highly attenuated sequence of contingencies. The Government first would have to decide to target one of the plaintiffs' foreign contacts; choose §1881a rather than another surveillance authority; obtain FISC approval; successfully acquire the contact's communications; and incidentally acquire a particular communication involving a plaintiff. The plaintiffs offered no specific facts showing that this chain would occur.

The first link was especially speculative because §1881a does not permit the Government to target the plaintiffs themselves, who were U.S. persons. Their claim therefore rested on predictions about whether the Executive Branch would target foreign contacts. But the plaintiffs had no actual knowledge of the Government's targeting decisions, and §1881a authorizes surveillance without requiring it.

Even if foreign contacts were likely to be monitored, the plaintiffs could not show that §1881a would be the source of the surveillance. The Government retained other surveillance authorities, including traditional FISA procedures and other intelligence-gathering methods. That uncertainty independently defeated the requirement that the claimed injury be fairly traceable to §1881a.

The Court also declined to assume that the FISC would approve any hypothetical §1881a surveillance. Standing ordinarily cannot rest on speculation about how an independent decisionmaker will exercise judgment. Nor could the plaintiffs establish that the Government would successfully collect the contacts' communications or that the plaintiffs would participate in the particular communications collected.

The Court acknowledged that its cases do not always require literal certainty and sometimes recognize standing where a substantial risk prompts reasonable mitigation costs. But even under that formulation, the plaintiffs fell short because the predicted injury depended on too many uncertain decisions and events.

The plaintiffs argued that they presently suffered economic and professional harms because they took precautions: limiting sensitive calls and emails, speaking in general terms, or traveling to meet sources and clients in person. The Court held that these measures merely repackaged their insufficient future-injury theory. A plaintiff cannot create a judicially cognizable injury by voluntarily incurring costs in response to a non-imminent feared harm.

Allowing standing whenever a plaintiff incurs costs in response to a nonfanciful fear would dilute Article III's injury requirement. As the Court explained, a plaintiff could otherwise reduce the standing burden simply by purchasing a plane ticket or undertaking another precaution based on a subjective fear of surveillance.

The claimed expenses were also not fairly traceable to §1881a because the plaintiffs had incentives to protect confidential international communications even before §1881a was enacted. For example, one attorney's client had allegedly been surveilled under preexisting FISA authority, making it difficult to attribute the attorney's present safeguards specifically to the new statute.

Laird v. Tatum foreclosed reliance on a subjective chill alone. In Laird, fear arising from knowledge of government intelligence activities did not establish standing without specific present objective harm or a specific threat of future harm. Because the plaintiffs here lacked a certainly impending §1881a interception, their fear and self-imposed precautions did not establish an injury fairly traceable to the statute.

The Court distinguished Friends of the Earth v. Laidlaw, Meese v. Keene, and Monsanto Co. v. Geertson Seed Farms. Laidlaw involved conceded, ongoing unlawful pollution; Keene involved films already labeled "political propaganda" under a statute directly affecting the plaintiff; and Monsanto involved concrete evidence of a significant risk that genetically modified alfalfa would contaminate nearby conventional crops. Here, by contrast, the plaintiffs supplied conjecture rather than concrete evidence that §1881a would acquire their communications.

The Court rejected the argument that standing should be found because otherwise no one could challenge §1881a. The possibility that no plaintiff would have standing is not itself a reason to relax Article III. In any event, the statute was not insulated from review.

The FISC reviews the Government's certifications, targeting procedures, and minimization procedures, including their consistency with the Fourth Amendment. In addition, when the Government intends to use or disclose §1881a-derived information in a judicial or administrative proceeding, it must provide notice, allowing the affected person to challenge the acquisition. Communications providers ordered to assist surveillance may also challenge directives before the FISC.