Standing to Challenge US Wiretapping Law Denied: Clapper, Director of National Intelligence et al v Amnesty International USA et al

On 26 February 2013, the United States Supreme Court (USSC) ((568 US) (2013)) upheld the federal law that enables the government to perform surveillance on Americans’ phone and email communications with people outside the United States. A group of human rights, legal, and media organizations (Respondents) challenged the constitutionality of the law, §1881a of the Foreign Intelligence Surveillance Act (FISA), on the ground that their contacts outside the US are likely targets of surveillance.

Writing for the majority, Justice Alito held that the respondents do not have standing because their concern over possible future surveillance was based on speculation. This judgment is a victory for the US government, but its preservation of secret wiretapping does present a challenge to the privacy of the many Canadians who communicate with Americans.

Facts

Before the addition of §1881a to FISA in 2008, wiretapping of international communications into or out of the US was permitted when two conditions were met: (1) The US government had probable cause to believe that the target of surveillance is a foreign power or an agent of a foreign power, and (2) The US government could specify the nature and location of the place where the electronic surveillance would occur. These conditions do not limit surveillance under §1881a.

The only requirement for using §1881a is that the targeting procedure must be “reasonably designed” (1) to ensure that an “acquisition … is limited to targeting persons reasonably believed to be outside the United States,” and (2) to prevent the intentional acquisition of communications between senders and recipients that are known to be located in the US. FISA created the Foreign Intelligence Surveillance Court to determine when the US government can use its surveillance provisions, including §1881a.

The respondents argue that they have standing to challenge the constitutionality of §1881a because some of the people that they communicate with are likely targets of the surveillance that this provision enables. In the alternative, the respondents argue that this risk of surveillance is so substantial that they have had to take costly measures to protect the confidentiality of their international communications.

Majority

Justice Alito rejects the respondents’ first argument because it is speculative and rests on a chain of assumptions. In Lujan v  Defenders of Wildlife, (504 US), the USSC held that a claim of standing “can no longer rest on … ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’” The USSC articulated a further requirement for standing in Monsanto Co v Geertson Seed Farms (561 US (2001)): establishing standing requires an injury that is “concrete, particularized, and actual or imminent … [and] fairly traceable to the challenged action.”

Justice Alito holds that the respondents have not set forth any specific facts demonstrating that their foreign contacts will be targeted. Even if the respondents could factually demonstrate that their foreign contacts will be targeted, their argument would rely on three assumptions: (1) The government will use the surveillance power in §1881a instead of another power under FISA; (2) The FISA Court will authorize this surveillance, and; (3) The government will successfully acquire the communications of respondents’ foreign contacts. Justice Alito holds that the speculative nature of respondents’ argument is fatal to their claim for standing: “We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent: “[R]espondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to §1881a.”

Justice Alito also rejects the respondents’ argument that their costs are a harm that is fairly traceable to §1881a. The USSC held in Laird v Tatum (408 US 1 (1972)) that fear of future surveillance is not sufficient to establish standing. Since the respondents do not face “a threat of certainly impending interception under §1881a,” Justice Alito holds that the respondents’ costs are due to their fear of surveillance and that Laird accordingly applies. Therefore, Justice Alito rejects both of respondents’ arguments for standing.

Dissent

Writing the dissent, Justice Breyer argues that standing exists here because the harm is not speculative. He puts forward a lower threshold that allows for standing in cases where there is a reasonable probability of future injury coupled with present injury related to mitigating the threatened effects of the future injury.

Conclusion

Standing was the main issue of this case, yet the USSC did not engage in an analysis of the constitutionality of §1881a. This is unfortunate because this law implicates the privacy concerns of many Canadians. One major concern is that Canadians could be targeted. A successful application to use §1881a allows the US government to monitor the target’s communications for one year, so any Canadian that is targeted will be extensively monitored. This law is also particularly concerning to Canadians because we have such frequent contact with the US. Canadians occupy a large part of the universe of communications that could be potentially targeted under this law.

It is encouraging that applications for using this surveillance power are subject to scrutiny from both the FISA court and Congress. If this discretion is exercised intelligently, the impact on the privacy of Canadians should be minimal.