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.
Respondent individual and organizational entities brought an action against petitioner government officials alleging that 50 U.S.C.S. § 1881a unconstitutionally authorized the government to intercept foreign communications from the entities. Upon the grant of a writ of certiorari, the officials appealed the judgment of the U.S. Court of Appeals for the Second Circuit which held that the entities had standing to challenge the statute. The entities contended that they had standing based on an objectively reasonably likelihood that their confidential communications with foreign contacts would be intercepted under § 1881a, and based on the costly and burdensome measures the entities were required to take to protect the confidentiality of their foreign communications. The U.S. Supreme Court held that the entities lacked standing and the case was remanded for further proceedings.
Did respondent entities have standing to challenge the statute?
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.