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Supreme Court Rejects Challenge to Wireless Wiretapping Law for Lack of Standing

Commentary Notes First Amendment
Clapper v. Amnesty Int'l USA By Samantha Rothberg – Edited by Jacob Rogers Clapper v. Amnesty Int’l USA, No.  11–1025 (U.S. Feb. 26, 2013) Slip opinion [caption id="attachment_3030" align="alignleft" width="150"]Photo By: Luis Alberto Martinez Riancho - CC BY 2.0 Photo By: Luis Alberto Martinez Riancho - CC BY 2.0[/caption] The Supreme Court reversed and remanded the U.S. Court of Appeals for the Second Circuit, which had held that a group of attorneys, journalists and human rights organizations had standing to challenge a 2008 law that expands warrantless wiretapping under the Foreign Intelligence Surveillance Act (“FISA Amendments Act”) on the basis of an “objectively reasonable likelihood” that the plaintiffs’ communications would be intercepted under the law. Clapper, slip. op. at 2. In a 5–4 opinion authored by Justice Samuel Alito, the Court held that the plaintiffs lacked standing to challenge the constitutionality of the statute because they failed to establish that they would suffer an “imminent” injury traceable to the law. Id. The Court found that the plaintiffs’ fear of future injury from surveillance was “highly speculative,” since they offered no evidence that they had actually been subjected to surveillance. Id. at 11. Furthermore, the Court held that the costs the plaintiffs had incurred to avoid surveillance could not be used to “manufacture standing” because the “hypothetical future injury” they sought to avoid was too speculative. Id. at 17. In so holding, the Court emphasized the importance of the standing inquiry when a decision on the merits would implicate the separation of powers by forcing the Court to determine the constitutionality of legislative or executive action. SCOTUSblog and the New York Times provide overviews of the case. Cato at Liberty criticized the decision’s characterization of the plaintiffs’ fears as speculative, arguing that the breadth of the government’s electronic communications surveillance program makes it “wildly implausible” that none of the plaintiffs’ communications would be intercepted. The American Civil Liberties Union, whose Deputy Legal Director Jameel Jaffer argued the case, warned that the decision “insulates the statute from meaningful judicial review.” Forbes downplayed these concerns, emphasizing that the plaintiffs had “no evidence that they have been subject to surveillance,” and that the court’s holding was consistent with precedent. Lawfare argued the Court’s decision was rooted in a pragmatic concern to prevent terrorists from using the courts strategically to learn whether they are under surveillance. In 2008 Congress passed the FISA Amendments Act, which permits the government to authorize the surveillance of non-U.S. persons located outside of the United States. The surveillance procedures must first be approved by the Foreign Intelligence Surveillance Court (“FISC”) to ensure they comport with the Fourth Amendment. The plaintiffs challenging the FISA Amendments Act argued that the fear of surveillance forced them to take “‘costly and burdensome measures’ to protect the confidentiality of sensitive communications,” such as traveling abroad to speak with clients in person rather than over phone or email. Clapper, slip. op. at 8. The plaintiffs sued to enjoin surveillance under the law and have the law declared unconstitutional. In holding that the plaintiffs lacked standing, the Court emphasized that the plaintiffs’ potential future injury depended on a series of tenuous assumptions, including that the government would target the specific communications of foreign persons with whom the plaintiffs were communicating; that they would do so under the authority of the FISA Amendments Act rather than another means of surveillance; that FISC judges would approve the government’s surveillance procedures; and that the government would successfully intercept the communications of the plaintiffs’ foreign contacts. Id. at 11. The Court concluded that, in the absence of actual evidence of surveillance, this “highly attenuated chain of possibilities” was inadequate to show that the plaintiffs faced a “certainly impending” injury, or that any injury they did suffer could be “fairly traceable” to the statute. Id. Justices Breyer, Ginsburg, Kagan and Sotomayor dissented.The dissent would have held that the plaintiffs had standing to challenge the constitutionality of the law due to the high likelihood that they would be subject to surveillance. Justice Breyer argued that the majority used too strict of a standard in defining imminent injury as harm that is “certainly impending” rather than reasonably probable. Clapper, slip. op. at 11 (Breyer, J. dissenting). He also noted that past precedent has found standing in cases with a significantly lower likelihood of harm than this one. Id. at 1. As commentators have pointed out, this case will make it significantly more difficult for parties to challenge warrantless wiretapping in the future. This may reflect the Court’s sensitivity to the needs of the intelligence community. However, the majority did point out that there are at least two circumstances where the law may be subject to judicial review. First, if the government attempts to use information obtained from warrantless wiretapping in a judicial or administrative proceeding, the affected party may challenge the lawfulness of the surveillance.  Second, service providers who are directed to assist in surveillance can challenge the lawfulness of the directive—but their challenge is confined to the FISC, which keeps its proceedings secret. Samantha Rothberg is a 1L at Harvard Law School.