Brief Fact Summary.
A federal law authorized the government to surveil people who were not “United States persons” and were reasonably believed to be outside of the United States. Respondents were individuals and and organizations that worked with people whom the government might surveil under this law. They sued the government, arguing that the law is unconstitutional.
Synopsis of Rule of Law.
To have standing under Article III of the U.S. Constitution, a claimant’s threatened injury must be certainly impending and fairly traceable to the alleged cause of the injury.
Plaintiffs bear the burden of pleading concrete facts showing the defendant's actual action has caused the substantial risk of harm.View Full Point of Law
Section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. § 1881a) allowed the Attorney General and the Director of National Intelligence to authorize surveillance of people who are not “United States persons” and are reasonably believed to be outside of the United States, for the purpose of obtaining foreign intelligence. Generally, surveillance would require approval from the Foreign Intelligence Surveillance Court. Respondents alleged that they worked with people who they believed were likely to be subject to surveillance under § 1881a. They sued the government, seeking a declaration that the law was unconstitutional and an injunction against surveillance under the law.
Did the respondents have standing?
No, the respondents did not have standing. Case reversed and remanded.
Justice Breyer, joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan
Justice Breyer argued that the plaintiffs’ alleged threatened injury—interception—was in fact likely, based on the fact that the plaintiffs engaged in communications that § 1881a allowed the government to surveil, the government had a strong motive to surveil these kinds of communications, the government’s past behavior indicated that it would continue to seek information through surveillance of these kinds of communications, and the government had the capacity to conduct this kind of surveillance.
The respondents lacked standing, because their alleged threatened injury was not certainly impending. Respondents argued that there was a threatened injury because there a reasonable likelihood that their communications with their colleagues, clients, and others would be intercepted under § 1881a. The court found this fear to be speculative, because it relied on several assumptions: that the government would in fact target their foreign contacts, that it would choose to do so under § 1881a and not a different law, the Foreign Intelligence Surveillance Court would approve this surveillance, the government would succeed in intercepting their communications, and that the respondents themselves will be involved in the communications the government intercepted. This fear was also not fairly traceable to § 1881a, because there are other laws through which the government could conduct this surveillance.
The respondents also argued that the measures they took to avoid surveillance established the requisite injury to show standing. The Court disagreed, finding that allowing such an argument would allow claimants to create an injury by inflicting harm upon themselves based on a hypothetical future harm that is not certainly impending.