The US Supreme Court [official website] ruled [opinion, PDF] 5-4 Tuesday in Clapper v. Amnesty International [JURIST report] that a coalition of attorneys, journalists and rights organizations do not have Article III [Cornell LII backgrounder] standing to contest Section 702 of the Foreign Intelligence Surveillance Act (FISA) [50 USC § 1881(a) text]. The coalition was represented by the American Civil Liberties Union (ACLU) [advocacy website] and argued that FISA jeopardizes their ability to keep confidential communications with clients suspected of terrorist activities. Justice Samuel Alito, who delivered the opinion of the court, wrote that this was not sufficient to create standing:
But respondents' theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be "certainly impending." And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of §1881a-authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending.The ACLU denounced [press release] the court's decision, stating, "It's a disturbing decision. The FISA Amendments Act is a sweeping surveillance statute with far-reaching implications for Americans' privacy. This ruling insulates the statute from meaningful judicial review and leaves Americans' privacy rights to the mercy of the political branches."
Justice Stephen Breyer authored a dissent and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan:
The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs' communications, including some that the 2008 amendment, §1881a, but not the pre-2008 Act, authorizes the Government to intercept. At the same time, nothing suggests the presence of some special factor here that might support a contrary conclusion. The Government does not deny that it has both the motive and the capacity to listen to communications of the kind described by plaintiffs. Nor does it describe any system for avoiding the interception of an electronic communication that happens to include a party who is an American lawyer, journalist, or human rights worker. One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circumstance here. ... The majority is wrong when it describes the harm threatened plaintiffs as "speculative."The decision also is likely to have implications on a challenge [JURIST report] in the US Court of Appeals for the Second Circuit brought against the National Defense Authorization Act (NDAA) [JURIST news archive] by a group of journalist and activists.