In July 2008, plaintiffs--a group of attorneys, journalists, and human rights, labor, legal, and media organizations represented by the American Civil Liberties Union--filed suit in United States District Court for the Southern District of New York against the National Security Agency (NSA), the Director of National Intelligence (DNI), and the United States challenging the constitutionality of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1881 (FISA) under Article III of the Constitution, the Fourth and First Amendments, and separation of powers principles.

FISA provides a framework governing "applications for orders authorizing electronic surveillance to obtain foreign intelligence information, including surveillance of communications between persons located within the United States ("domestic communications") and surveillance of communications between persons located outside the United States ("international communications")." Amnesty Int'l USA v. McConnell, 646 F. Supp. 2d 633 (S.D.N.Y. 2009). Section 702 of FISA, 50 U.S.C. § 1881a, as added by the FISA Amendments Act of 2008 (FAA), permits the Attorney General and DNI to conduct foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad, but the government need not establish probable cause that the target of electronic surveillance is a foreign power or agent of a foreign power, nor must government specify the nature and location of the facilities or places that surveillance will occur.

Plaintiffs argued that Section 702 violates the Fourth Amendment because it authorizes government to acquire communications of U.S. citizens and residents without obtaining individualized warrants based on probable cause. They argue Section 702 violates the First Amendment by substantially burdening lawful expressive activity. They argue that Section 702 violates Article III and separation of powers principles by allowing the process of judicial review established in the FAA allows the Foreign Intelligence Surveillance Court (FISC) to issue orders in the absence of a case or controversy.

Both parties moved for summary judgment, but the district court ruled that the plaintiffs lacked standing under Article III. In August 2009, the district court granted the government's motion for summary judgment. Amnesty Int'l USA v. McConnell, 646 F. Supp. 2d 633, 645 (S.D.N.Y. 2009). The district court found that the plaintiffs could only demonstrate "an abstract fear that their communications will be monitored under the FAA," and that "the chilling of their speech that they attribute to the statute is actually the result of their purely subjective fear of surveillance." Id. at 645, 653. The plaintiffs appealed to the U.S. Court of the Appeals for the Second Circuit, which reversed the district court's judgment in March 2011. Amnesty Int'l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011), denied rehearing in banc, 667 F.3d 163 (2d Cir. 2011).

The government appealed to the Supreme Court, which ruled 5-4 in February 2013 that the plaintiffs lacked Article III standing because they "cannot demonstrate that the future injury they purportedly fear is certainly impending." Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1155 (2013).

Elizabeth Homan - 11/03/2013


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