Tuesday, February 26, 2013

No Standing to Challenge FISA Amendments on Domestic Surveillance, Supreme Court Holds

236px-EyeglassesdesignIn a 5-4 opinion this morning in Clapper v. Amnesty International USA, the Supreme Court rejected the standing of Amnesty International to challenge domestic surveillance under FISA, the Foreign Intelligence Surveillance Act of 1978 and its amendments, often called FAA (FISA Authorization Amendments).

The ruling puts an end to this challenge to the government's surveillance authority under FISA and ups the ante for any future challenge.  The case says that a plaintiff can't bring a challenge by merely alleging likely surveillance; instead, a person has to show literal "certainly impending" surveillance or actual surveillance.  Either way, the case is very tough.  The problem is that a targeted individual has a real hard time showing that they will be or were subject to FISA surveillance--because it's secret.  That's the whole point.  But the Court said that the ruling doesn't completely insulate FISA from challenge: a person could challenge it after information obtained from surveillance leads to judicial or administrative proceedings; and an electronic communications service provider could challenge a government directive to assist in FISA-authorized surveillance.  Still, even if today's ruling preserves those potential challenges, it almost certainly forecloses any pre-surveillance challenge by a target.

Recall that the Second Circuit held that Amnesty and the other organizations did have standing under Article III.  The unanimous panel rejected the government's contentions that the challengers fears were speculative, writing that "importantly both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur."

The Supreme Court reversed.  In an opinion by Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas), the Court wrote that the plaintiffs' claimed injuries were simply too speculative--at each link in the chain:

  • First, it's too speculative whether the government will imminently target communications to which the plaintiffs are parties (especially because the plaintiffs have no actual knowledge of the government's targeting practices under the FISA);
  • But even if, it's too speculative whether the government would use its FISA authority (as opposed to some other surveillance authority) to listen in on the plaintiffs' communications;
  • But even if, it's too speculative whether the FISA court would authorize surveillance on the plaintiffs; and
  • Finally even if, it's too speculative whether the government would succeed in surveillance under this authority.

The Court also rejected the plaintiffs' claim that they suffered harm because they already took measures to protect themselves against surveillance.  The Court said that plaintiffs can't sidestep the "imminent harm" requirement for standing (which they did not meet, as above) by claiming that they took steps to avoid a possible harm.

Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan.  Justice Breyer wrote that "there is a very high likelihood that Government, acting under the authority of [FISA], will intercept at least some of the [plaintiffs' communications.]"  Dissent at 6 (emphasis in original).  That's because the plaintiffs engage in communications that the government is authorized to intercept, there are strong motives to intercept, the government has intercepted similar communications in the past, and the government has the capacity to intercept.  Justice Breyer wrote that this "very high likelihood" is enough: the Court has never used the requirement for "certainly impending" harm according to its literal definition; instead, the Court's used this language more flexibly.

It's not clear whether the Court's ruling necessarily signals a tightening of standing requirements outside this unique context--a challenge to a government action, when, because of the very nature of the action, the target can't know with certainty that he or she has been subject to the government action.  Justice Breyer discusses Court cases (at length), including relatively recent cases, that employ a more flexible imminence requirement.  The Court did nothing to question the continued vitality of those cases.  Indeed, in footnote 5, page 16, Justice Alito wrote that to the extent that a "substantial risk" standard is different than a "clearly impending" standing for the imminence requirement, the plaintiffs here didn't meet either.

RR and SDS

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