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Clapper v. Amnesty Int'l USA - 568 U.S. 398, 133 S. Ct. 1138 (2013)


To establish U.S. Const. art. III standing, an injury must be: concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling. Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for U.S. Const. art. III purposes—that the injury is certainly impending. Thus, threatened injury must be certainly impending to constitute injury in fact, and allegations of possible future injury are not sufficient. 


Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA) permitted the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who were not "United States persons" and were reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence must obtain the Foreign Intelligence Surveillance Court's (FISC) approval. Surveillance under FISA was subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Respondents, attorneys and human rights, labor, legal, and media organizations, were United States persons who claimed that they engaged in sensitive international communications with individuals who they believed were likely targets of FISA surveillance. On the day that the FISA Amendments Act was enacted, they filed suit, seeking a declaration that the law was facially unconstitutional and as well as a permanent injunction against FISA authorized surveillance. The District Court found that respondents lacked standing. On appeal, the Second Circuit reversed, holding that respondents showed (1) an "objectively reasonable likelihood" that their communications would be intercepted at some time in the future, and (2) that they were suffering present injuries resulting from costly and burdensome measures they took to protect the confidentiality of their international communications from possible FISA surveillance.


Did respondents have standing to challenge the statute?




The U.S. Supreme Court held that the entities lacked standing since the entities failed to show any threat of imminent harm or any concrete injury traceable to the statute. There was no threatened imminent injury based on the speculative chain of possibilities concerning whether the government would target the entities' communications, whether authorization under the statute would be sought or judicially approved, whether the government would succeed in acquiring the communications, and whether the entities' communications would be intercepted. Further, the entities' choices to make expenditures to prevent interception of confidential communications based on hypothetical future harm that was not certainly impending were simply the product of the entities' fear of surveillance, which was insufficient to confer standing.

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