Government Wiretapping Escapes Court Review: Clapper v. Amnesty Intl. USA

The U.S. government’s use of high-tech surveillance technology on American citizens has been a hot topic for debate in recent weeks. However, in the wake of a recent Supreme Court decision, at least one top-secret national security program will not face constitutional scrutiny.

Clapper v. Amnesty International USA challenged the FISA Amendments Act of 2008, which authorized electronic surveillance targeting non-U.S. persons abroad. However, the Supreme Court ultimately determined that the plaintiffs, including attorneys, journalists, and public interest organizations, lacked standing to bring the suit.

The Foreign Intelligence Surveillance Act of 1978 (FISA), as amended by the FISA Amendments Act of 2008, allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States. The plaintiffs, which included attorneys and human rights, labor, legal, and media organizations, challenged the constitutionality of the program based on the fact that they engage in sensitive international communications with individuals who they believe are likely targets of surveillance.

The Second Circuit Court of Appeals overturned the district’s court’s finding that the plaintiffs lacked standing. It held that they showed (1) an “objectively reasonable likelihood” that their communications will be intercepted at some time in the future, and (2) that they are suffering present injuries resulting from costly and burdensome measures they take to protect the confidentiality of their international communications from possible surveillance.

In 5-4 decision, a majority of the U.S. Supreme Court disagreed. The justices concluded that the plaintiffs lacked standing under Article III of the U.S. Constitution.

As noted by the Court, 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.” Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___. Moreover, the “threatened injury must be ‘certainly impending’ to constitute injury in fact, and ‘[a]llegations of possible future injury’ are not sufficient.”

Based on this precedent, the Court rejected the plaintiffs’ argument that they had suffered injury in fact because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under the wiretapping program. Ultimately, the majority found the allegations to be too speculative. “[R]espondents have no actual knowledge of the Government’s § 1881a targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under § 1881a,” the majority concluded.

The Court also rejected the plaintiffs’ argument that they suffer ongoing injuries because the risk of surveillance requires them to take costly and burdensome measures to protect the confidentiality of their communications. As explained by the Court, “Respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending.”