The U.S. Supreme Court’s 5-4 decision in Clapper v. Amnesty International (No. 11-1025, decided February 26) held that certain lawyers lacked constitutional standing to maintain a facial challenge to 2008 amendments adding § 1881a to the Foreign Intelligence Surveillance Act. The amendments made it easier for the government to secure Foreign Intelligence Surveillance Court approval to intercept calls and emails between foreigners abroad and persons in the U.S. The lawyers, and others, sought to challenge the legality of the government’s threatened monitoring of their confidential emails and calls with foreign clients.
The decision, in which the justices split along conservative/liberal lines (Alito, C.J. Roberts, Scalia, Thomas and Kennedy in the majority and Breyer, Ginsburg, Sotomayor and Kagan dissenting), reversed a Second Circuit panel decision holding that there was standing. (See, “Do Lawyers Have Standing to Challenge Surveillance of Client Calls?” June 2012 Privacy In Focus available at www.wileyrein.com/surveillance.) The Supreme Court’s ruling may raise questions as to whether the standard for determining constitutional standing has been tightened.
The Majority Analysis
Justice Alito’s opinion of the Court applied a test providing that to establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling,” a standard articulated in the Court’s 2010 decision in Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743. In Monsanto, standing was found to exist based on expenditures alfalfa growers made to address their concerns that bees obtaining pollen from genetically engineered crops in neighboring fields would contaminate their crops.
The Supreme Court here analyzed two standing theories supported by the Second Circuit, namely: (1) “there is an objectively reasonable likelihood that their communications will be acquired under § 1881a at some point in the future” and (2) “the risk of surveillance under § 1881a is so substantial that they have been forced to take costly and burdensome measures to protect the confidentiality of their international communications” and “the costs they have incurred constitute present injury that is fairly traceable to § 1881a.” The majority rejected both theories.
Justice Alito reasoned that the “reasonable likelihood” assertion necessarily assumed that a number of contingencies all would occur: (1) the government will decide to target communications of non-U.S. persons with whom the plaintiffs communicate; (2) the government will seek to use its authority under § 1881a to do so, rather than some other authority; (3) the Federal Intelligence Surveillance Court will determine that the government’s proposed surveillance procedures meet the requirements of the statute and the Fourth Amendment; (4) the government will succeed in intercepting the calls of the targeted non-U.S. persons with whom the plaintiffs communicate; and (5) the plaintiffs will be parties to “the particular communications that the Government intercepts.” The majority found this to be “a highly attenuated chain of possibilities” that fails to meet the constitutional standing requirement that “threatened injury must be certainly impending.” The majority also found that the posited injury was not “fairly traceable to § 1881a” because the assumption that the government would rely on that authority rather than some other surveillance authority was “mere speculation.”
The majority also rejected the plaintiffs’ second injury theory, which relied on costs they had already incurred to avoid the risk of surveillance. Justice Alito reasoned that the risk giving rise to the expenditures must itself be sufficient to meet the constitutional standing requirement (which the risk here did not), because, if the law were otherwise, “an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a paranoid fear.”
The Dissenters’ Analysis
Justice Breyer, writing for the four dissenters, found that the asserted “harm is not speculative” but rather “is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.” The dissent noted that the 2008 amendments were designed to make it easier for the government to conduct the surveillance of non-U.S. persons and that even under the prior statutory authority, the record showed “the U.S. government had intercepted some 10,000 telephone calls and 20,000 email communications involving” one client of one of the plaintiff lawyers. Further, the government “has a strong motive to listen to” such communications. Additionally, the dissenters stressed that the government has the capacity to conduct such surveillance, noting a report that “every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, telephone calls and other types of communications.” Finally, Justice Breyer observed that, in 2011, “of the 1,676 applications to the intelligence court, two were withdrawn by the Government, and the remaining 1,674 were approved” by the Foreign Intelligence Surveillance Court, thus indicating that the government’s securing approval is virtually certain. In that context, the dissenters concluded that one need only “assume that the Government is doing its job” in order to “conclude that there is a high probability that the Government will intercept at least some electronic communications to which at least some of the plaintiffs are parties.”
On that basis, the dissenters found the majority’s characterization of the harm as “speculative” to be “wrong.” They also rejected the majority’s standard requiring that a threatened harm must be “certainly impending,” believing that “what the Constitution requires is something more akin to ‘reasonable probability’ or ‘high probability.’” Under those standards, “at least some of the plaintiffs have standing.”
Future events may show that the majority simply is highly reluctant to permit the federal courts to become involved in facial challenges to foreign intelligence statutes. But neither Justice Alito’s nor Justice Breyer’s opinion purported to be applying a standing rule applicable only in such circumstances. The dissenters noted a number of earlier Supreme Court cases, including challenges to statutes imposing economic burdens, political or First Amendment cases and environmental challenges, where plaintiffs were found to have standing and, in the dissenters’ view, the harm was less certain than that threatened here. That could signal a general tightening of standing requirements for facial challenges; time will tell.