'U8 cw 62591 Case 1:08-cv-06259-JGK Document 1 Filed 07/10/08 Page 1 of 43

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Plaintiffs,
v.

ECFCASE

JOHN M. McCONNELL, in his official capacity as Director of National Intelligence; LT. GEN. KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; and MICHAEL B. MUKASEY, in his official capacity as Attorney General of the Unites States,

Defendants.

JAMEEL JAFFER (JJ-4653) MELISSA GOODMAN (MG-7844) L. DANIELLE TULLY (DT-0509) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500

July 10, 2008

NEW YORK CIVIL LIBERTIES UNION FOUNDATION, by CHRISTOPHER DUNN (CD-399l) ARTHUR EISENBERG (AE-2012)
New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300

Case 1:08-cv-06259-JGK Document 1 Filed 07/10/08 Page 2 of 43
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. This is a challenge to the constitutionality of the Foreign Intelligence
Surveillance Act, 50 U.S.C. § 1801, et seq. ("FISA"), as amended by H.R. 6304, the FISA Amendments Act of2008 ("FISA Amendments Act," "FAA," or "Act"), which the President signed into law on July 10, 2008. As amended, FISA allows the executive branch sweeping and virtually unregulated authority to monitor the international communications - and in some cases the purely domestic communications - oflawabiding U.S. citizens and residents. The amended law (the "challenged law") eviscerates the "[c]lear legal standards and effective oversight and controls" that the Senate Church Committee concluded in 1978 were necessary to ensure that govemment surveillance did "not itself undermine the democratic system it [was] intended to protect."
2. Plaintiffs are attorneys and human rights, labor, legal, and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials, and victims of human rights abuses located outside the United States. Because of the nature of their communications and the identities and geographic location of the individuals with whom they communicate, plaintiffs reasonably believe that their communications will be monitored under the challenged law. The challenged law compromises plaintiffs' ability to gather information, represent their clients, and engage in domestic and international advocacy.
Itrequires plaintiffs to take costly and burdensome measures to protect the confidentiality
of sensitive and privileged communications, and it undermines plaintiffs' ability to engage in communications that are relevant and necessary to their work.
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3. Plaintiffs recognize that the government has a legitimate interest in monitoring the communications of individuals who are reasonably thought to pose a threat to the United States. Where government surveillance implicates the rights of U.S. citizens and residents, however, it must be conducted in a manner that comports with the Constitution. The law challenged here supplies none of the safeguards that the Constitution demands. It permits the government to monitor the communications of U.S. citizens and residents without identifying the people to be surveilled; without specifying the facilities, places, premises, or property to be monitored; without observing meaningful limitations on the retention, analysis, and dissemination of acquired information; without obtaining individualized warrants based on criminal or foreign intelligence probable cause; and, indeed, without even making prior administrative determinations that the targets of surveillance are foreign agents or connected in any way, however tenuously, to terrorism. In effect, the challenged law allows the mass acquisition of U.S. citizens' and residents' international communications. In some circumstances, it allows the warrantless acquisition of purely domestic communications as well. Plaintiffs respectfully seek (i) a declaration that the challenged law violates the First and Fourth Amendments to the U.S. Constitution, Article III, and the principle of separation of powers; and (ii) a permanent injunction against the law's use.
JURISDICTION AND VENUE 4. Jurisdiction is properly vested in this Court pursuant to 28 U.S.C. § 1331 over causes of action arising under the U.S. Constitution. The Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. The Court has authority to award costs and attorneys' fees under 28 U.S.c. § 2412.
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5. Venue is proper in this district under 28 U.S.C. § 1391(e). PLAINTIFFS
6. Amnesty International USA ("AIUSA"), a section of Amnesty International, is a grassroots activist organization based in New York City. It undertakes research and action to prevent and end grave abuses of all human rights - civil, political, social, cultural and economic. AIUSA sues on its own behalf and on behalf of its staff.
7. Global Fund for Women ("GFW") is a non-profit grantmaking foundation based in San Francisco, CA. GFW advances women's human rights worldwide by providing funds to women-led organizations that promote the economic security, health, safety, education, and leadership of women and girls. GFW sues on its own behalf and on behalf of its staff.
8. Global Rights is a human rights organization based in Washington, D.C. With offices around the world, Global Rights partners with local activists to challenge injustice and amplify new voices within the global discourse. Global Rights sues on its own behalf and on behalf of its staff.
9. Human Rights Watch ("HRW") is a non-profit, non-governmental human rights organization based in New York City. HRW researchers conduct factfinding investigations into human rights abuses in all regions of the world and publish their findings in hundreds of reports and other documents every year. HRW sues on its own behalf and on behalf of its staff.
10. The International Criminal Defence Attorneys Association ("ICDAA") is a non-profit organization incorporated in the United States and Canada that seeks to
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create the foundations for a full, fair, and well-organized defense in proceedings before international tribunals. The ICDAA sues on its own behalf and on behalf of its members.
II. The Nation Magazine ("The Nation"), which is published by The Nation Company, L.P., and based in New York City, is America's oldest weekly magazine of opinion, news, and culture. Its editorial mission is to bring a critical, independent, and progressive spirit to the reporting and analysis of politics, social issues, culture, and the arts. In recent years, The Nation's journalists have won national and international awards for their investigative reporting about issues relating to national security, terrorism, human rights, and the wars in Iraq and Afghanistan. The Nation sues on behalf of itself, its staff, and certain of its contributing journalists.
12. PEN American Center ("PEN") is a human rights and literary association based in New York City. Committed to the advancement ofliterature and the unimpeded flow of ideas and information, PEN fights for freedom of expression; advocates on behalf of writers harassed, imprisoned, and sometimes killed for their views; and fosters international exchanges, dialogues, discussions, and debates. PEN sues on its own behalf and on behalf of its staff and members.
13. Service Employee International Union ("SErU") is the fastest growing labor organization in the Americas, representing 2 million members located across the United States, Canada, and Puerto Rico. With headquarters in Washington, D.C., SEIU is dedicated to improving the lives of workers and their families and creating a more just and humane society. SEIU works with counterpart unions abroad and with international global union federations to advance workers rights at home and abroad. SEIU sues on its own behalf and on behalf of its staff.
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14. The Washington Office on Latin American ("WOLA") is a non-profit, non-governmental organization based in Washington, D.C. that conducts research, advocacy, and education designed to promote human rights, democracy, and social justice in Latin America. WOLA sues on its own behalf and on behalf of its staff.
15. Daniel N. Arshack is a founding partner of the law firm Arshack, Hajek and Lehrman, PLLC, located in New York City. His practice includes the representation of defendants and witnesses in domestic criminal proceedings and international criminal tribunals. Mr. Arshack sues on his own behalf.
16. David Nevin is a founding partner of the law firm Nevin, Benjamin, McKay & Bartlett LLP located in Boise, ID. His practice includes the representation of criminal defendants and civil litigants in cases relating to terrorism and national security. Mr. Nevin sues on his own behalf.
17. Scott McKay is a partner with the law firm of Nevin, Benjamin, McKay & Bartlett LLP located in Boise, ID. His practice includes the representation of criminal defendants and civil litigants in cases relating to terrorism and national security. Mr. McKay sues on his own behalf.
18. Sylvia Royce is a former Assistant U.S. Attorney for the District of Columbia and the former Chief of International Prisoner Transfer at the U.S. Department of Justice. Her practice, based in Washington, D.C., includes representation of individuals detained at Guantanamo Bay as well as individuals imprisoned in the United States seeking transfer to their home countries. Ms. Royce sues on her own behalf.
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DEFENDANTS 19. Defendant John M. McConnell is the Director of National Intelligence ("DNI"). DNI McConnell has ultimate authority over the activities of the U.S. intelligence community. Under the challenged law, the DNI and the Attorney General have joint authority to authorize the mass acquisition of U.S. citizens' and residents' international communications. 20. Defendant Lieutenant General Keith B. Alexander is the Director ofthe National Security Agency ("NSA") and Chief of the Central Security Service. Lt. Gen. Alexander has ultimate authority for supervising and implementing all operations and functions of the NSA, the agency that conducts the surveillance authorized by the challenged law. 21. Defendant Michael B. Mukasey is Attorney General of the United States. Attorney General Mukasey has ultimate authority over the Department of Justice. Under the challenged law, the Attorney General and the DNI have joint authority to authorize the mass acquisition of U.S. citizens' and residents' international communications.
BACKGROUND The Foreign Intelligence Surveillance Act
22. In 1978, Congress enacted the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq., ("FISA"), to regulate government surveillance conducted for
foreign intelligence purposes. The statute created the Foreign Intelligence Surveillance Court ("FISC") and empowered the court to grant or deny government applications for surveillance orders in foreign intelligence investigations. See 50 U.S.C. § 1803(a).
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23. Congress enacted FISA after the U.S. Supreme Court held, in United
States v. United States District Courtfor the Eastern District ofMichigan, 407 U.S. 297
(1972), that the Fourth Amendment does not permit warrantless surveillance in
intelligence investigations of domestic security threats. FISA was a response to that
decision and to years of in-depth congressional investigation, which revealed that the
executive branch had engaged in widespread warrantless surveillance of U.S. citizens -
including journalists, activists, and members of Congress - "who engaged in no criminal
activity and who posed no genuine threat to the national security."
24. Congress has amended FISA multiple times. In its current form, the
statute regulates, among other things, "electronic surveillance," which is defined to mean:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States ...;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; and
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
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50 U.S.C. § l80l(f). 25. Before passage of the FISA Amendments Act of2008, FISA generally
foreclosed the government from engaging in "electronic surveillance" without first obtaining an individualized and particularized order from the FISC. To obtain an order, the government was required to submit an application that identified or described the target of the surveillance; explained the government's basis for believing that "the target of the electronic surveillance [was] a foreign power or an agent of a foreign power"; explained the government's basis for believing that "each of the facilities or places at which the electronic surveillance [was] directed [was] being used, or [was] about to be used, by a foreign power or an agent of a foreign power"; described the procedures the government would use to "minimiz[e]" the acquisition, retention, and dissemination of non-publicly available information concerning U.S. persons; described the nature of the foreign intelligence information sought and the type of cornmunications that would be subject to surveillance; and certified that a "significant purpose" of the surveillance was to obtain "foreign intelligence information." 50 U.S.c. § l804(a) (2006). "Foreign intelligence information" was defined broadly (and is still defined broadly) to include, among other things, information concerning terrorism, national security, and foreign affairs.
26. Before the passage ofthe FISA Amendments Act, the FISC was empowered to grant surveillance orders if it determined that a government surveillance application met the statutory requirements; that there was "probable cause to believe that the target of the electronic surveillance [was] a foreign power or an agent of a foreign power"; that "each of the facilities or places at which the electronic surveillance [was]
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directed [was] being used, or [was] about to be used, by a foreign power or an agent of a foreign power"; and that the government's proposed minimization procedures met the statutory minimization requirements. 50 U.S.C. § 1805 (2006).
27. Congress intended FISA (together with Title III of the Omnibus Crime Control and Safe Streets Act of 1968,18 U.S.C. § 2510 et seq., which governs electronic surveillance conducted for law enforcement purposes) to supply the "exclusive means" by which the executive branch could lawfully engage in electronic surveillance within the country's borders. 18 U.S.C. § 2511(2)(f). In enacting FISA, Congress expressly prohibited electronic surveillance "except as authorized by statute," 50 U.S.C. § 1809(a)(1), and it specified civil and criminal penalties for electronic surveillance undertaken without statutory authority, 50 U.S.C. §§ 1809 & 1810.
The President's Warrantless Surveillance Program 28. In the fall of2001, President Bush secretly authorized the National Security Agency ("NSA") to inaugurate a program of warrantless electronic surveillance inside the United States (the "Program"). President Bush publicly acknowledged the Program after The New York Times reported its existence in December 2005. The President reauthorized the Program repeatedly between 2001 and 2007. 29. According to public statements made by senior government officials, the Program involved the interception of emai1s and telephone calls that originated or terminated inside the United States. The interceptions were not predicated on judicial warrants or any other form ofjudicial authorization; nor were they predicated on any determination of criminal or foreign-intelligence probable cause. Instead, according to then-Attorney General Alberto Gonzales and then-NSA Director General Michael
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Hayden, NSA "shift supervisors" initiated surveillance when in their judgment there was a "reasonable basis to conclude that one party to the communication [was] a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."
30. On January 17,2007, then-Attorney General Alberto Gonzales publicly announced that a judge of the FISC had "issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization." The Attorney General further stated that "[a]s a result of these orders, any electronic surveillance that was occurring as part of the [Program] will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court."
31. The FISC orders issued in January 2007 were modified in the spring of that same year. The modifications reportedly narrowed the authority that the FISC had extended to the executive branch in January. Following the FISC's modification of its January 2007 orders, DNI McConnell appealed to Congress to amend FISA.
The Protect America Act 32. Congress enacted the Protect America Act in August 2007. The Act expanded the executive's surveillance authority and provided legislative sanction for surveillance that the President had previously been conducting under the Program. Although the law eviscerated a regulatory framework that had been in place for almost thirty years, Congress enacted the law without holding a single hearing and after only four days of debate.
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33. Because of a "sunset" provision, the amendments made by the Protect America Act ceased to have effect on Feb. 17, 2008. Surveillance orders that had been issued during the Protect America Act's life, however, will continue in effect for up to one year from the date they were issued.
The FISA Amendments Act of 2008 34. In anticipation of the Protect America Act's expiration, the administration lobbied Congress for permanent changes to FISA. President Bush signed the FISA Amendments Act into law on July 10, 2008. Like the Protect America Act, the FISA Amendments Act provides legislative sanction for the warrantless surveillance of U.S. citizens' and residents' communications. It also provides immunity to telecommunications corporations that facilitated the Program. 35. The Act allows the mass acquisition of U.S. citizens' and residents' international telephone and email communications. Under section 702(a) of the Act, the Attorney General and the DNI can "authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information." An acquisition under section 702(a) may not "intentionally target any person known at the time of the acquisition to be located in the United States"; "intentionally target a person reasonably believed to be outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States"; "intentionally target a United States person reasonably believed to be located outside the United States"; or "intentionally acquire any communication as to which the sender and all intended recipients are known at the time ofthe acquisition to be located in the United
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States." FAA § 702(b). 36. Critically, however, an acquisition authorized under section 702(a) may
encompass the international communications of U.S. citizens and residents. Indeed, the Attorney General and the ONI may authorize a mass acquisition under section 702(a) even if all of the communications to be acquired originate or terminate inside the United States. Moreover, the Attorney General and the ONI may acquire purely domestic communications as long as there is uncertainly about the location of one party to the communications.
37. Before authorizing surveillance under section 702(a), the Attorney General and the ONI must either obtain an order from the FISC (a "mass acquisition order") or make an "exigent circumstances" determination that "intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order ... prior to the implementation of such authorization." FAA § 702(a) & (c)(2). If the Attorney General and the ONI authorize surveillance under section 702(a) without first obtaining a mass acquisition order from the FISC, they must seek such an order from the FISC "as soon as practicable but in no event later than 7 days after such determination [of exigent circumstances] is made." FAA § 702(g)(l)(B).
38. To obtain a mass acquisition order from the FISC, the Attorney General and the ONI must provide to the FISC "a written certification and supporting affidavit" attesting that the FISC has approved, or that the government has submitted to the FISC for approval, procedures ("targeting procedures") reasonably designed to (i) ensure that the acquisition is "limited to targeting persons reasonably believed to be located outside
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the United States" and (ii) "prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States." FAA § 702(g)(2)(A)(i). The certification and supporting affidavit must attest that the FISC has approved, or that the government has submitted to the FISC for approval, procedures ("minimization procedures") that meet the definition of "minimization procedures" under 50 U.S.C. §§ 1801(h) or 1821(4). The certification and supporting affidavit must also attest that the Attorney General has adopted "guidelines" to ensure compliance with the limitations set out in section 702(b); that the targeting procedures, minimization procedures, and guidelines are consistent with the Fourth Amendment; that "a significant purpose of the acquisition is to obtain foreign intelligence information"; that "the acquisition involves obtaining foreign intelligence information from or with the assistance of an electronic communication service provider"; and that "the acquisition complies with the limitations in subsection [702(b)]." FAA § 702(g)(2)(A)(iii)-(vii).
39. The Act does not require the government to demonstrate to the FISC that its surveillance targets are foreign agents, engaged in criminal activity, or connected even remotely with terrorism. Indeed, the statute does not require the governmentto identify its surveillance targets at all. Moreover, the statute expressly provides that the government's certification is not required to identify the facilities, telephone lines, email addresses, places, premises, or property at which its surveillance will be directed. FAA § 702(g)(4). Thus, the government may obtain a mass acquisition order without identifying the people (or even the group of people) to be surveilled; without specifying the facilities, places, premises, or property to be monitored; without obtaining individualized warrants
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based on criminal or foreign intelligence probable cause; and without making even a prior administrative determination that the acquisition relates to a particular foreign agent or foreign power.
40. The Act does not place meaningful limits on the government's retention, analysis, and dissemination of U.S. communications and information that relates to U.S. citizens and residents. While the Act requires the government to adopt "minimization" procedures that are "reasonably designed ... to minimize the acquisition and retention, and prohibit the dissemination of nonpublicly available information concerning unconsentingUnited States persons," the statute does not prescribe specific minimization procedures, does not give the FISA court any authority to oversee the implementation of the procedures, and specifically allows the government to retain and disseminate information - including information relating to U.S. citizens and residentsif the government concludes that itis "foreign intelligence information." Nothing in the Act forecloses the government from compiling databases of such "foreign intelligence information" and searching those databases for information about specific U.S. citizens and residents.
41. The FISC is required to issue a mass acquisition order if it finds that the government's certification "contains all the required elements" and that the "targeting and minimization procedures" are consistent with the requirements ofthe statute and the Fourth Amendment. FAA § 702(i)(3)(A).
42. With respect to any acquisition authorized under section 702(a), the Attorney General and DNI may direct any electronic communication service provider immediately to "provide the Government with all information, facilities, and assistance
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necessary to accomplish the acquisition." FAA § 702(h)(I)(A). "Electronic communication service provider," a term that is defined more narrowly in other contexts, see, e.g., 18 U.S.C. § 2510(15), is defined broadly to include, inter alia, telecommunications carriers, providers of remote computing service, and "any other communication service provider who has access to wire or electronic communications' either as such communications are transmitted or as such communications are stored." FAA § 701(b)(4).
43. The role of the FISC in authorizing and supervising surveillance conducted under the FISA Amendments Act is narrowly circumscribed. While the FISC reviews the government's certifications, targeting procedures, and minimization procedures, it does not consider individualized and particularized surveillance applications, it does not make individualized probable cause determinations, and it does not supervise the implementation of the government's targeting or minimization procedures. As noted above, the FISC is authorized to reject an application for a mass acquisition order if it finds that the government's certification or procedures are deficient. Even if the FISC rejects the government's certification or procedures, however, the government "may continue" its surveillance activities during the pendency of any appeal or further court proceedings. FAA § 702(i)(4)(B). In other words, the statute permits the government to continue its surveillance activities even if the FISC has concluded that those activities are inconsistent with the statute or are unconstitutional.
PLAINTIFFS' ALLEGATIONS 44. Plaintiffs are attorneys and human rights, labor, legal, and media organizations whose work requires them to engage in sensitive and sometimes privileged
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communications, both domestic and international, with clients, journalistic sources, witnesses, experts, foreign govemment officials, and victims of human rights abuses.
45. Because of the scope of the challenged law, the nature of their communications, and the location and identities of the individuals with whom they communicate, plaintiffs reasonably believe that their communications will be acquired, retained, analyzed, and disseminated under the challenged law.
46. Some of the plaintiffs, in connection with their legitimate professional activities, communicate with people whom the U.S. government is likely to target when conducting foreign intelligence surveillance of persons abroad, including foreign government officials, political activists, and individuals alleged to be engaged in terrorism or associated with terrorist organizations.
47. Some of the plaintiffs, in connection with their legitimate professional activities, communicate with people in countries and geographic regions that the U.S. government is likely to target when conducting foreign intelligence surveillance of persons abroad, including regions that are the specific focus of the U.S. government's counterterrorism or diplomatic activities.
48. Some of the information that plaintiffs exchange by telephone and email is "foreign intelligence information" within the meaning of the challenged law.
49. Because of the challenged law, plaintiffs will have to take burdensome and costly measures to minimize the chance that the confidentiality of their sensitive information will be compromised. The challenged law will require plaintiffs to develop new protocols for dealing with sensitive information, to travel long distances to collect
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information that could otherwise have been gathered by telephone or email, and in some circumstances to forgo particularly sensitive communications altogether.
50. Because of the challenged law, plaintiffs will be less able to gather information, represent their clients, and engage in domestic and international advocacy. The challenged law reduces the likelihood that clients, journalistic sources, witnesses, experts, foreign government officials, and victims of human rights abuses will share sensitive information with the plaintiffs.
51. The challenged law is inhibiting, and Ilnless enjoined will continue to inhibit, the legitimate and constitutionally protected communications of plaintiffs and others not before the Court.
Amnesty International USA 52. Amnesty International is the world's oldest and largest grassroots human rights organization. Amnesty International USA is Amnesty International's largest national section, comprising more than 330,000 members and 1,850 student and local groups. Through its campaigns, AIUSA seeks to expose and stop human rights abuses - for example, to force repressive governments to release prisoners of conscience (individuals detained solely for the peaceful expression of their beliefs); prevent torture and illegal detention; alert the world to the horrors of human trafficking; confront violence against women; and control the spread of small arms, which contribute to abuses in armed conflict. 53. AIUSA conducts research and advocacy about a wide range of human rights violations in the United States and internationally. Over the last six years, AIUSA has participated in extensive research and advocacy about topics including the detention
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of individuals in secret locations in Yemen and Afghanistan; the illegal transfer of detainees to countries like Syria, Egypt, and Jordan; the uninvestigated murders of women in Guatemala; and human rights abuses in Nepal and Indonesia.
54. Because of the nature of its advocacy work and the global nature of Amnesty International's network, members of AlUSA's staff and volunteer experts routinely exchange sensitive information by telephone and email with individuals located outside the United States. Some of this information constitutes "foreign intelligence information" as that term is defined in the challenged law. For example, AlUSA staff communicate with Amnesty International researchers based in London who investigate human rights abuses relating to terrorism and counterterrorism, the wars in Afghanistan and Iraq, the CIA's extraordinary rendition program, secret prisons, prison conditions, and international complicity in human rights abuses. Staff exchange sensitive information through their communications, including facts provided by confidential sources, news regarding investigations into European and U.S. complicity in human rights abuses around the world, and plans for specific advocacy strategies.
55. Because of the nature of its staff members' communications and the identity and location of those with whom they communicate, AIUSA reasonably believes that its staff members' communications will be monitored under the challenged law.
56. The challenged law undermines the ability of AlUSA and its staff to gather information that is relevant and necessary to their work. The law will require AIUSA's staff to travel to collect information that otherwise could have been gathered by telephone or email, and in some circumstances to forgo particularly sensitive communications altogether. The challenged law also reduces the likelihood that sources,
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witnesses, experts, foreign government officials, and victims of human rights abuses will share sensitive information with AIUSA's staff. Many of the individuals with whom AIUSA's staff communicate are vulnerable to persecution and retaliation by their own governments and by non-governmental actors. These individuals will be less willing or unwilling to share information with AIUSA if they believe that the information cannot be kept confidential.
Global Fund for Women 57. Global Fund for Women is a 501(c)(3) grantmaking foundation that
advances women's human rights worldwide. The organization raises funds from a
variety of sources and makes grants to women-led organizations that promote the economic security, health, safety, education, and leadership of women and girls. Since 1987, GFW has awarded more than $62 million to more than 3,500 women's organizations in 169 countries, with typical grants ranging from $1,000 to $20,000.
58. While GFW is based in the United States, its relationships and operations are global. For guidance in grantmaking decisions, GFW draws on the resources of approximately 120 expert advisors who provide critical information to GFW about its grantees. GFW is governed by a sixteen-member Board of Directors and . approximately half of the Board members are located outside ofthe United States. GFW employs approximately forty-five staff members, about half of whom interact directly with the international community.
59. Because of the nature of its grantmaking work, GFW's staff routinely exchange sensitive information by telephone and email with individuals located abroad. Some of this information is "foreign intelligence information" within the meaning of the
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challenged law. For example, GFW's staff communicate with prospective, current, and former grantees, as well as with GFW's world-wide network of advisors, in conflict zones such as Iraq, Pakistan, Indonesia, Colombia, Palestine, Afghanistan, and Turkey. Some of these communications are related to security concerns, political developments, and the domestic human rights situation in these countries. Members ofGFW's staff also communicate with individuals abroad about U.S. foreign policy and about the policies and programs of foreign government agencies.
60. Because of the nature of its staff members' communications and the identity and location of those with whom they communicate, GFW reasonably believes that its staff members' communications will be monitored under the challenged law.
61. The challenged law undermines GFW's ability to gather the information it needs to make grantmaking decisions and to support its grantees. For example, the challenged law will impede GFW's ability to expand its grantmaking in the Middle East and North Africa - two regions to which GFW is particularly committed - because prospective grantees in these areas will likely be less willing to communicate with GFW if they believe that the privacy of their communications cannot be ensured. The challenged law impairs GFW's ability to engage in international communications that are necessary to carry out its work.
Global Rights 62. Global Rights is a human rights advocacy group that partners with local activists to challenge injustice and amplify new voices within the global discourse. Global Rights has nearly 100 employees, approximately twenty-five of whom are located in the United States; the remaining employees are located in field offices throughout the
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world. Global Rights works directly with local activists and organizations to create more rights-respecting societies. Global Rights and its partners often promote equality in hostile environments. As a result, Global Rights has developed an understanding ofthe day-to-day realities facing civil society in post-conflict situations, during prolonged transitions to democratic rule, and in cultural environments that resist the promotion and protection of the human rights of women.
63. In furtherance of its human rights advocacy, Global Rights staff membersroutinely communicate by telephone and email with individuals located abroad. The majority ofthese communications are between Global Rights staff in its Washington, D.C. office and Global Rights field offices or staff in Afghanistan, Bosnia and Herzegovina, Burundi, Colombia, the Democratic Republic of Congo, Liberia, Algeria, Tunisia, Morocco, Nepal, and Nigeria. Both U.S. citizens and foreign nationals staffthe field offices.
64. Some ofthe information that Global Rights staff exchange by telephone and email constitutes "foreign intelligence information" as that term is defined in the challenged law. For example, Global Rights D.C.-based staff members communicate with Global Rights staff in Afghanistan about issues such as justice system reform, political participation, women's rights, and the specific Global Rights projects designed to promote these goals. These projects include Young Lawyers in Training, which provides law students at several universities with practical training on Afghan criminal and civil law, and the Access to Justice Program, which builds the capacity oflegal service providers - particularly with respect to women's rights and family rights under Afghan law and Sharia. In connection with their work in Afghanistan, Global Rights
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staff communicate with Afghan judges, prosecutors, investigators from the Attorney General's office, and other members of the Afghan government.
65. Global Rights also works in the Democratic Republic of Congo, through local offices in Kinshasa and Bukavu, to promote access to justice and combat impunity for grave violations of human rights, to encourage political participation, and to secure legislation critical to ensuring human rights protection. This work requires Global Rights staff to identify and discuss the operations of local human rights groups that document and expose atrocities committed against civilians, and to discuss strategies for holding human rights abusers accountable before national courts and international bodies such as the International Criminal Court. Some of Global Rights' communications relate to the foreign affairs of the United States.
66. Because of the nature of its staff members' communications and the identity and location of those with whom they communicate, Global Rights reasonably believes that its staff members' communications will be monitored under the challenged law.
67. The challenged law undermines Global Rights' ability to gather information and engage in advocacy. Global Rights' effectiveness depends entirely upon the strength of its relationships with local civil society actors, human rights organizations, and women's rights groups. Those relationships often demand strict confidentiality. The likelihood that Global Rights' international communications will be monitored by the U.S. government will make its partners abroad reluctant to communicate with Global Rights staff. This in turn will deprive Global Rights' staff of information that is relevant and in some cases necessary to their work. Global Rights' inability to communicate
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confidentially with members, experts, and leaders of government and industry will seriously impede Global Rights' efforts to help its local partners become more effective advocates for political change, human rights, and respect for the rule of law.
Human Rights Watch 68. Human Rights Watch is a non-profit, non-governmental human rights organization based in New York City. It employs over 246 staff members located across offices in Brussels, Geneva, London, Moscow, Paris, Hong Kong, Johannesburg, Los Angeles, New York City, San Francisco, Tashkent, Toronto, and Washington, D.C. Formed in 1978, HRW is dedicated to protecting the human rights of people around the world. The hallmark ofHRW's work is its commitment to even-handed, accurate reporting on human rights abuses throughout the globe. 69. HRW researchers conduct fact-finding investigations into human rights abuses by governments and non-state actors in all regions ofthe world. Its researchers are currently investigating topics ranging from brutal government-sponsored repression in Zimbabwe to the state of the justice system in Iraq. HRW's investigations usually lead to reports and other materials for publication, which generate extensive coverage in local and international media. HRW also works to create a dialogue with offending governments to encourage them to change abusive laws and policies, and, through its advocacy, it enlists the support of other influential actors such as the United Nations, the European Union, international financial institutions, the U.S. government, as well as civil society organizations, to achieve this end. 70. HRW's reporting and advocacy work requires HRW's U.S.-based staff to communicate by telephone and email with individuals located abroad. Some of the
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information exchanged during these connnunications constitutes "foreign intelligence information" as that term is defined in the challenged law. For example, lain Levine, HRW's Program Director, who is based in New York City, often connnunicates with HRW staff abroad about HRW's work concerning conflict, political crises, refugees, HIV/AIDS, the Middle East, North Africa, and Sub-Saharan Africa. He regularly needs speaks with HRW staff in countries with delicate security situations, such as Zimbabwe, Chad, Iraq, and Afghanistan. Joanne Mariner, Terrorism and Counterterrorism Program Director at HRW, who is also based in New York City, connnunicates regularly via telephone and email with individuals abroad about individuals detained by the CIA, the CIA's "rendition" program, the intelligence services of foreign countries, and U.S. counterterrorism measures. These connnunications are necessary to her research about U.S. human rights abuses and the complicity of Middle Eastern and Asian governments in these abuses.
71. Because ofthe nature of its staff members' communications and the identity and location of those with whom they connnunicate, HRW reasonably believes that its staff members' communications will be monitored under the challenged law.
72. The challenged law undermines the ability ofHRW and its staff to develop and conduct research missions necessary for their advocacy and reporting work. The law will require HRW staff to take costly and burdensome measures to protect the confidentiality of their communications. In some cases, it will require HRW to send staff abroad to gather or verify information that could otherwise have been gathered or verified via telephone or email. For example, Joanne Mariner anticipates traveling to Jordan, Egypt, and countries in Europe to interview victims of and witnesses to human rights
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abuses whom she would otherwise have interviewed by telephone. Overseas trips of this kind are time-consuming and costly.
73. The challenged law will also discourage witnesses, experts, victims, foreign government officials, and human rights defenders from sharing information with HRW staff. Those who speak to HRW researchers often do so on condition of confidentiality, because they fear repercussions from their own governments, from the U.S. government, or from non-governmental entities. Some of the people whom HRW depends upon for information will decline to share information with HRW if they believe that the confidentiality of their identities and information cannot be ensured. This means that HRW will be deprived of information that is relevant and in some cases critical to its work.
International Criminal Defence Attorneys Association 74. The International Criminal Defence Attorneys Association is a nonprofit organization incorporated in the United States and Canada that seeks to create the foundations for a full, fair, and well-organized defense in proceedings before international tribunals, such as the International Criminal Tribunal for Rwanda based in Arusha, Tanzania; the International Criminal Tribunal for the former Yugoslavia; and the recently establishedInternational Criminal Court (ICC), both based in The Hague, the Netherlands. The ICDAA works to organize a full, thorough, and structured defense with the aim of bolstering the legitimacy ofthe judicial process established by the international community to prosecute war crimes and crimes against humanity; bring together in a professional association the defense attorneys who are responsible for preparing and pleading cases to be tried by various international tribunals; share with the
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international community experience and knowledge derived from the adversarial system ofjustice; encourage communication among lawyers specializing in criminal law from countries around the world; and assist in the development of international criminal law and in particular of international institutions such as the ICC. ICDAA membership is . comprised of organizations and criminal defense lawyers from around the world, including from the United States.
75. ICDAA's members, including its members inside the United States, . routinely engage in sensitive and privileged international communications relating to
their representation of criminal defendants. For example, members of the ICDAA who represent individuals before the ICC communicate with clients and witnesses located in the Sudan and the Democratic Republic of Congo. ICDAA's members' communications with clients, clients' families, witnesses, journalists, human rights organizations, experts, investigators, and foreign government officials are vital to their effective representation of their clients.
76. Because ofthe content of its members' communications, the identity of those with whom they communicate, and the geographic location of individuals with whom they communicate, ICDAA reasonably believes that its members' communications will be monitored under the challenged law.
77. ICDAA's members have an ethical obligation to protect the confidentiality of their clients' information, including information covered by the attorney-client privilege. However, the challenged law makes it nearly impossible to ensure that their international email and telephone communications are secure. The law requires the attorneys to take burdensome and costly steps to gather information
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necessary for the effective representation of their clients in a manner that ensures those communications remain confidential. In some cases, attorneys will have to gather information in person that they would otherwise have been able to gather by telephone or email. In email and telephone communications, attorneys will be forced to weigh the utility of asking for additional information against the risk that the communication will be acquired by the U.S. government.
The Nation Magazine 78. The Nation Magazine, an independent weekly journal published by The Nation Company, L.P. in New York City, is a critical, independent voice in American journalism. It publishes writing by regular contributors based in Europe, the Middle East, Latin America, Asia, and Africa. Its journalists report on a wide range of issues relating to international affairs, including the wars in Iraq and Afghanistan, the Israel-Palestine conflict, protest activities in China, and civil wars and other conflicts in Africa and Latin America. 79. Because of the nature of their work, The Nation's editors, columnists, and contributors often engage in telephone and email communications with individuals outside the United States. These communications are vital to providing up-to-date, accurate information about emerging news stories and informing longer-range analytic articles on international topics. Some of the information exchanged by The Nation's editors, columnists, and contributors through these communications constitutes "foreign intelligence information" as defined by the challenged law. For example, the Nation's staff members and contributing journalists communicate by telephone or email with political dissidents in other countries, foreign journalists in conflict zones, representatives
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of foreign governments, and individuals with connections to disfavored political and social groups. Some of these communications relate to the involvement or alleged involvement of the U.S. government or its allies abroad, or of the U.S. military and its contractors, in repression and human rights abuses. Some of these communications relate to the subjects of terrorism, counterterrorism, or the foreign affairs ofthe United States.
80. Nation contributor Christopher Hedges has written extensively about violent conflicts and terrorism. In developing his articles, Mr. Hedges communicates with sources in countries such as Palestine, Iran, Syria, and Sudan. These communications, which include the exchange of information about terrorism, counterterrorism, and U.S. foreign affairs, are critical to his work. Nation contributor Naomi Klein has written extensively about the extension of radical free-market .capitalism and the resurgence of imperial militarism following the September II attacks. In developing her articles, Ms. Klein routinely communicates with sources in Iraq, Argentina, Chile, Mexico and Colombia. She has communicated with journalists, political activists, human rights campaigners, members of indigenous resistance movements, and foreign government officials who have been targeted by the U.S. government or its allies. These communications, which include the exchange of information about state repression, resistance strategies, and the foreign affairs of the United States, are critical to her work.
81. Because ofthe nature of its contributors' communications and the identity and location of those with whom they communicate, The Nation reasonably believes that its contributors' communications will be monitored under the challenged law.
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82. The challenged law undermines the ability of The Nation's editors, writers, contributors, and staff to gather information that is critical to their work. The ability to communicate confidentially with sources is essential to journalists' work. Many of the people with whom The Nation's staff and contributors communicate will not share information if they believe that their identities cannot be kept confidential. Some of them fear retribution by their own governments; others fear retribution by the U.S. government; still others fear persecution at the hands ofterrorist groups. The risk that their identities will be revealed will lead some sources who otherwise would have shared information to decline to do so.
83. The challenged law will force The Nation's writers and contributors to gather information in person that could otherwise have been gathered by telephone or email. This means that The Nation's journalists will obtain some information later than they would otherwise have obtained it, which will affect their ability to report news in a timely fashion. It also means that they will not have access to some information that they might otherwise have been able to access. The costs associated with gathering information in person are also significant. Overseas travel is expensive and timeconsuming. The additional costs will compromise the ability of The Nation's writers and contributors to gather information in a timely fashion and to convey critical information to The Nation's readership.
PEN 84. PEN American Center is an association based in New York City of approximately 3,300 authors, editors, and translators committed to the advancement of literature and the unimpeded flow of ideas and information, It is the largest of the 145
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centers ofInternational PEN. PEN fulfills its mission and supports its members through conferences, readings, public forums, advocacy campaigns, and direct support to endangered writers around the world. PEN is also a member of the International Freedom of Expression Exchange, a global network of non-governmental organizations that monitors free expression violations and defends journalists, writers, human rights activists, and Internet users who are persecuted for exercising their right to freedom of expression.
85. One of PEN's core projects is to ensure that writers across the world are
free to write and to express their ideas. In 2006 alone, PEN followed the cases of 1,010
writers in ninety-eight countries who were imprisoned, censored, or threatened for their
work. In support of these efforts, PEN staff members based in New York regularly
engage in email and telephone communications with writers, advocates, and other PEN partners in countries such as Cuba, Mexico, Tunisia, Democratic Republic of Congo, Turkey, Uzbekistan, Syria, and China. Some of these eommunications include "foreign intelligence information" as defined by the challenged law. For example, in the course of gathering information about a particular person or case, PEN staff members communicate with individuals abroad about political context, security concerns, and advocacy options. Similarly, in the course of its efforts to support writers facing persecution in countries where anti-terrorism and national security laws are used to target political dissidents and suppress freedom of expression, PEN staff and volunteer members communicate with targeted writers, their families, and human rights activists to coordinate advocacy efforts and provide humanitarian assistance.
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86. As the U.S, center for an international organization that advocates for free expression, PEN relies on international email and telephone communications to keep abreast of developing issues, communicate strategyresponses, and coordinate emergency support for individuals who have been imprisoned.
87. PEN relies on confidential international email and telephone communications to carry out its humanrights and free-expression advocacy around the world. Many of the individuals PEN seeks to assist have been monitored, imprisoned, or persecuted in their own countries. It takes months to establish the trust and rapport necessary for these individuals to communicate with PEN staff or volunteers about their own cases and the country context in which they work and live. Some of these individuals are living "and working in countries where a history of cooperation between their governments and U.S. intelligence services has left a legacy offear and distrust of the United States. The threat that these communications will be monitored by the U.S. government under the challenged law will result in fewer individuals reaching out to PEN.
88. As the largest center ofInternational PEN, a federation of 145 PEN Centers in 105 countries, PEN plays a prominent role in efforts to develop and expand International PEN's presence and impact around the globe. PEN advises and mentors other PEN centers in Africa, Latin American, and Asia, helps PEN centers in the developing world create and implement projects, and assists in raising funds to support this work. PEN relies on international email and telephone communications to communicate with its international counterparts and coordinate its center development efforts. The ability of PEN to conduct its center development program credibly and
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.safely depends on maintaining the trust of participating centers that it is operating independent ofthe U.S. government and free from U.S. government scrutiny. The threat that PEN's communications with its international partners will be monitored by the U.S. government under the challenged law will undermine the trust necessary to cultivate successful partnerships and will deter some of PEN's international partners from participating in the center development program.
89. As an organization dedicated to promoting a free exchange of information and ideas around the world, PEN also convenes discussions, dialogues, and debates featuring writers and intellectuals from around the world. For example, PEN stages an annual World Voices Literary Festival in New York City, during which between fifty and one hundred international writers participate in more than sixty public programs with their American counterparts. Among those PEN recruits to participate in these events are writers and intellectuals who hold controversial and challenging views, dissident writers, and even writers the U.S. government has attempted to exclude from the country for ideological reasons. PEN extends invitations and negotiates the participation of international writers and intellectuals at PEN events through email and telephone communications. The threat that these communications might be monitored under the challenged law will inhibit writers whose views might be deemed controversial in the United States or by the U.S. government from discussing their participation and ultimately discourage their attendance at PEN events.
Service Employees International Union 90. The Service Employees International Union is the fastest-growing labor organization in the Americas, representing two million members in a variety of
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occupations and industries covering three sectors: property services, public services, and health care. SEIU is the nation's largest health care union, the largest property services union, and the second-largest public employees union. While SEIU members are located throughout the United States, Puerto Rico, and Canada, SEIU works together with labor unions and human rights organizations around the world to improve the standard of living for working people on a global scale.
91. To complement its U.S.-based work, SEIU employs full-time staff in Switzerland, the Netherlands, United Kingdom, Australia, Uruguay, and Brazil. It also partners with organizations in more than forty other countries. In addition to places where it has staff, SEIU focuses considerable international activity in Poland, China, and several countries in Southern Africa including Malawi. With its partners, SEIU crafts global alliances to address worker and human rights issues at global employers and to help workers in both the United States and abroad to attain workplace justice and to pursue mutual interests. To achieve these ends, SEIU staff routinely communicate by email and telephone with individuals, including labor union activists, outside the United States. Some of these communications include "foreign intelligence information" as defined by the challenged law. For example, SEIU staff communicate with academics, non-governmental organizations, and labor union officials in Colombia, China, and Russia regarding workers' right to organize and fair labor standards. Some of these communications relate to the foreign affairs of the United States.
92. Because of the nature and content of its staff members' communications, the identity of those with whom they communicate, and the geographic
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location of individuals with whom they communicate, SEIU reasonably believes that its staff members' communications will be monitored under the challenged law.
93. The challenged law undermines the ability of SEIU staff and leaders to gather information that is critical to their work. Some of the people from whom SEIU staff obtain information are labor activists who are persecuted by their own governments or by non-governmental groups. These individuals will not share information with SEIU if they believe that their identities cannot be kept confidential. Labor activists in Colombia, Zimbabwe, and Russia, for example, operate in extremely repressive environments, and they must often operate in secret. Labor activists who believe that their communications with SEIU could be acquired by the U.S. government (and perhaps turned over to their own governments) will be more cautious about the information they share and in some cases may decide that working with SEIU is simply too risky.
Washington Office on Latin America 94. The Washington Office on Latin America is a non-profit, nongovernmental organization based in Washington, D.C. Founded in 1974, WOLA conducts research, education, and advocacy designed to foster human rights, democracy, and social justice in Latin America with a focus on the impact of U.S. foreign policy in the region. WOLA is regularly called upon for its research and analysis by policymakers, the media, and academics in the United States and Latin America.. WOLAdoes direct advocacy with the U.S. and foreign governments pertaining to the impact of U.S. foreign policy on human rights and democracy in Latin America. 95. Because of the nature of its staff members' communications and the identity and location of those with whom they communicate, WOLA reasonably believes
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that its staff members' communications will be monitored under the challenged law. In connection with its work relating to drug policy, youth gang violence, organized crime, rights and development, and security policy, WOLA's staff routinely engage in email and telephone communications with activists, policy makers, government representatives, journalists, and academics outside the United States. Some ofthese communications include "foreign intelligence information" as defined in the challenged law. For example, WOLA's drug-policy program, which monitors the impact of U.S. international drug control policy on democracy and human rights in Latin American countries including Colombia and Mexico, sometimes requires WOLA staff to communicate with individuals who have been accused by their own governments or by political opponents of being guerrillas or terrorists, or of having links to such organizations. Some ofWOLA's communications with these individuals relate to drug control policy and the foreign affairs ofthe United States.
96. The challenged law undermines the ability ofWOLA to gather information that is necessary to its work. For example, the challenged law will undermine the ability of Maureen Meyer, WOLA's Associate for Mexico and Central America, to gather information about human rights, democracy, and social justice in El Salvador. Ms. Meyer's work requires her to communicate with human rights groups, labor leaders, opposition figures, protest organizers, attorneys and other political actors in El Salvador. Some of Ms. Meyer's communications are extremely sensitive because of the high levels of political tension in the country. Likewise, some of the individuals she works with have been accused of "terrorism" under El Salvador's anti-terror law. These communications are sensitive because the individuals contacted by WOLA fear
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persecution due to their political activities. Any risk that confidentiality will be compromised will discourage political activists from sharing information with WOLA, especially if there is a perceived risk that information obtained by the United States will be shared with the government ofE! Salvador. IfWOLA cannot ensure the confidentiality of its communications, its education and advocacy work in El Salvador and in other countries where social protest has been criminalized will be compromised.
The challenged law will also undermine the ability of John Walsh, WOLA's Senior Associate for the Andes and Drug Policy, to gather information about human rights and democratic governance in Venezuela. WOLA's Venezuala program, which is intended to promote dialogue in a political environment that has become polarized, requires that WOLA be and be seen as independent from any government. WOLA has worked for more than thirty years to build the trust and confidence that it now enjoys. In an atmosphere of mutual hostility between the U.S. and Venezuelan governments, however, in which harsh rhetoric on both sides has aggravated an already-contentious political climate, the mere suspicion that information provided in confidence to WOLA staffwill be accessed by the U.S. government will seriously affect WOLA's credibility and effectiveness. Even ifWOLA makes clear its opposition to the unwarranted monitoring of its communications by the government, some individuals who would otherwise have worked with WOLA and shared information with WOLA will decline to do so because of the danger that their private communications will be intercepted.
Attorneys 97. Daniel N. Arshack, David Nevin, Scott McKay, and Sylvia Royce (collectively, "Attorneys") are attorneys based in the United States. They engage in
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sensitive and privileged communications by telephone and email with individuals outside ofthe United States, including clients, their families, witnesses, journalists, human rights organizations, experts, investigators, and foreign government officials. These communications are vital to their effective representation of their clients. Some of the information that the Attorneys communicate by telephone and email is "foreign intelligence information" as defined in the challenged law.
98. Because of the nature of their communications and the identities and location of those with whom they communicate, the Attorneys reasonably believe that their communications will be monitored under the challenged law.
99. The Attorneys have an ethical obligation to protect the confidentiality of their clients' information, including information covered by the attorney-client privilege. However, the challenged law makes it nearly impossible to ensure that their international email and telephone communications are secure. The law requires the Attorneys to take burdensome and costly steps to gather information necessary for the effective representation of their clients in a manner that ensures those communications remain confidential. The law will require the attorneys to minimize the amount of sensitive or privileged information they communicate by telephone or email. Some of the Attorneys will travel abroad to obtain information they would otherwise have been able to obtain by telephone or email.
100. The challenged law also reduces the likelihood that clients, witnesses, sources, and experts will be willing to share information by telephone or email that is necessary to provide effective representation to their clients. The Attorneys believe that the real risk that their communications will be intercepted undermines their ability to
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represent their clients and prejudices or will prejudice their clients in ongoing and anticipated legal proceedings.
101. Attorney Daniel N. Arshack is a founding partner of the law firm Arshack, Hajek and Lehrman, PLLC located in New York City. His practice includes the representation of civil litigants, individuals, and businesses not yet charged with crimes; criminal defendants; and witnesses in criminal cases domestically and in . international criminal tribunals throughout the world. As part of his legal practice, Mr. Arshack engages in frequent confidential international communications by both telephone and email with clients, their families, witnesses, journalists, hurnan rights organizations, experts, investigators, and foreign government officials. Some of the
countries Mr. Arshack regularly calls and emails include Cambodia, France, Japan, Sierra
Leone, Turkey, Uganda, Kenya, Liberia, Lebanon, Israel, Mexico, Argentina, Bolivia, Ecuador, and Saudi Arabia. Because the challenged law increases the risk that his international communications will be monitored by the U.S. government, Mr. Arshack will be forced to gather some information in person that he would otherwise have been able to gather over the telephone or by email.
102. Attorneys Scott McKay and David Nevin are partners at the law firm Nevin, Benjamin, McKay & Bartlett LLP located in Boise, Idaho. As part of their
criminal-defense practice, Mr. McKay and Mr. Nevin have represented and continue to
represent individuals who have been accused by the federal government of terrorismrelated crimes or who have been accused of having a link to terrorists or terrorist
organizations. For example, Mr. McKay and Mr. Nevin were defense counsel for Sami
Al-Hussayen, an individual the government unsuccessfully prosecuted for providing
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material support to terrorism. Mr. McKay and Mr. Nevin continue to represent Mr. AlHussayen in a civil suit arising from the September 11, 2001 terrorist attacks, in which Mr. Al-Hussayen has been named as a defendant. Their representation ofMr. AlHussayen has required and will continue to require them to communicate by telephone and email with witnesses, many of whom reside in Saudi Arabia, andwithMr.AIHussayen, who returned to Saudi Arabia following his acquittal. Mr. McKay and Mr. Nevin have also offered to represent Khalid Sheikh Mohammed, one of the five prisoners who have been charged with capital offenses before the military commissions at Guantanamo Bay. Mr. McKay and Mr. Nevin have met with Mr. Mohammed at Guantanamo Bay on several occasions since June 3, 2008. They have communicated about Mr. Mohammed's case, or will need to communicate in the future about his case, with journalists, human rights organizations, experts, investigators, witnesses and others, some of whom are located outside the United States. Some of their communications relate to terrorism, counterterrorism, and the foreign affairs of the United States. The challenged law will require Mr. McKay and Mr. Nevin to refrain from engaging in certain sensitive or privileged communications by telephone or email. It will also require them to gather certain information vital to the representation of their clients in person rather than by telephone or email.
103. Attorney Sylvia Royce is a former Assistant U.S. Attorney for the District of Colombia and the former Chief ofInternational Prisoner Transfer at the U.S. Department of Justice. Ms. Royce's private practice includes the representation of individuals imprisoned in the United States who are seeking to be transferred to their home countries to serve out the remainder of their prison sentences. Ms. Royce also
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represents Mohamedou Ould Siahi, a prisoner who is held at Guantanamo Bay as an enemy combatant. In connection with her representation of Mr. Siahi, Ms. Royce frequently communicates by email and telephone with co-counsel in France and Mauritania. These communications include sensitive information relating to the litigation ofMr. Slahi's habeas petition and Freedom ofInformation Act case. Ms. Royce also frequently communicates with foreign journalists working for print media such as Der Spiegel and the Toronto Globe and Mail, and with human rights organizations outside the United States. These communications relate to, among other things, the detention center at Guantanamo Bay, the policies of the U.S. government relating to the detention and interrogation of enemy combatants, the connections or lack thereof between her client and others held at Guantanamo, and the propriety or impropriety of governmentdecisions with respect to classification of national security information. Many of these communications relate to terrorism, counterterrorism, and the foreign affairs of the United States. The challenged law will require Ms. Royce to refrain from engaging in certain sensitive or privileged communications by telephone or email. It will prevent her from gathering some information that is critical to her representation of her clients.
CAUSES OF ACTION 104. The challenged law violates the Fourth Amendment because it authorizes defendants to acquire the constitutionally protected communications of U.S. citizens and residents without identifying the people to be surveilled; without specifyirig the facilities, places, premises, or property to be monitored; without observing meaningful limitations on the retention, analysis, and dissemination of acquired information; without obtaining individualized warrants based on criminal or foreign
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intelligence probable cause; and without making prior administrative determinations that

the targets of surveillance are foreign agents or connected in any way, however

tenuously, to terrorism.

105.

The challenged law violates the First Amendment by substantially

-burdening a broad range of lawful expressive activity without adequate justification and

by authorizing defendants to acquire constitutionally protected communications without

meaningful judicial oversight.

106. The challenged law violates Article III by requiring the FISC to rule on

questions that do not constitute cases or controversies.

107. The challenged law violates the principle of separation of powers by

allowing the govemment to continue surveillance activities even if the FISC has held

those activities be illegal.

PRAYER FOR RELIEF

WHEREFORE plaintiffs respectfully requests that the Court:

108. Declare that section 702 of the FISA Amendments Act is

unconstitutional under the First and Fourth Amendments, under Article III, and under the

principle of separation of powers;

109. Permanently enjoin defendants from conducting surveillance pursuant

to the,authority granted by section 702 of the FISA Amendments Act;

110. Award Plaintifffees and costs pursuant to 28 U.S.C. § 2412;

111. Grant such other and further relief as the Court deems just and proper.

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Case 1:08-cv-06259-JGK Document 1 Filed 07/10/08 Page 43 of 43 submitted,

J

JAFFER (JJ-4653)

MELI A GOODMAN (MG-7844)

L. DANIELLE TULLY (DT-0509)

American Civil Liberties Union Foundation 125 Broad Street, 18th Floor

New York, NY 10004

(212) 549-2500

NEW YORK CIVIL LIBERTIES UNION FOUNDATION, by
CHRISTOPHER DUNN (CD-3991)
ARTHUR EISENBERG (AE-2012) New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300

July 10, 2008

43

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK __________________________________

AMNESTY INTERNATIONAL USA, et al.,

Plaintiffs,

- against -

08

Civ. 6259 (JGK)

JOHN MCCONNELL, et al.,

OPINION AND ORDER

Defendants. __________________________________ JOHN G. KOELTL, District Judge:

This is a facial challenge to the constitutionality of

Section 702 of the Foreign Intelligence Surveillance Act of 1978

(“FISA”), 50 U.S.C. § 1881a, which was added to FISA by Section

101(a)(2) of the FISA Amendments Act of 2008 (the “FAA”). In

relevant part, the FAA amended FISA by creating a new framework

within which federal officials may seek approval from the

Foreign Intelligence Surveillance Court (the “FISC”) to

authorize surveillance targeting non-United States persons

located outside the United States to acquire foreign

intelligence information.

The plaintiffs are attorneys and organizations in the

United States whose work necessitates international

communications with people and organizations they believe to be

likely targets of surveillance under the FAA. The defendants

are the Director of National Intelligence, the Director of the 1

National Security Agency and Chief of the Central Security Service, and the Attorney General of the United States.1

The plaintiffs fear that their international communications

will be monitored under the FAA. They make no claim that their

communications have yet been monitored, and they make no

allegation or showing that the surveillance of their

communications has been authorized or that the Government has

sought approval for such surveillance. However, the plaintiffs

assert that they have an “actual and well-founded fear” of

surveillance under the FAA and claim already to have incurred

significant costs in taking steps to protect their international

communications from surveillance. The plaintiffs challenge the

FAA as unconstitutional under the Fourth Amendment, the First

Amendment, and Article III of the Constitution.

The Government contends as a threshold matter that the

plaintiffs lack standing to challenge the FAA. The Government

also contends that the lawsuit lacks merit in any event because

the FAA is constitutional on its face.

The parties have filed cross-motions for summary judgment.

For the reasons explained below, the plaintiffs have failed to

show that they have standing to bring their facial challenge to

the statute.

1

Attorney General Eric H. Holder, Jr., should be automatically

substituted for former Attorney General Michael B. Mukasey as a defendant,

and the caption of this case changed accordingly. See Fed. R. Civ. P. 25(d).

2

I

A Prior to the passage of the FAA, FISA created a framework for federal officials to apply for and obtain orders authorizing electronic surveillance where a significant purpose of the surveillance was to obtain foreign intelligence information. See 50 U.S.C. § 1804; see also United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984).2 FISA established the FISC, comprised of judges appointed by the Chief Justice of the United States, with jurisdiction to hear applications for and to grant orders approving electronic surveillance “in aid of protecting the United States against attack by foreign governments or international terrorist groups.” United States v. Rahman, 861 F. Supp. 247, 249 (S.D.N.Y. 1994), aff’d, 189 F.3d 88 (2d Cir. 1999); see also 50 U.S.C. §§ 1801(e), 1803. FISA required that each application for an order approving electronic surveillance be made by a federal officer upon oath or affirmation after approval by the Attorney General. 50 U.S.C. § 1804(a). An application was required to set forth the

2

Prior to October 26, 2001, the date on which the Patriot Act became

effective, FISA required that obtaining foreign intelligence information be

“the purpose” of electronic surveillance, rather than “a significant

purpose.” See United States v. Sattar, No. 02 Cr. 395, 2003 WL 22137012, at

*3 & n.3 (S.D.N.Y. Sept. 15, 2003).

3

identity of the federal officer making the application; the identity, if known, of the target of the electronic surveillance; the facts upon which the applicant relied in concluding that the target of the electronic surveillance was a foreign power or an agent of a foreign power and that each of the facilities or places at which the surveillance was directed was being used, or was about to be used, by a foreign power or agent thereof; a statement of proposed minimization procedures; the type of information sought and the means by which surveillance would be effected; a statement concerning the previous applications sought; and a statement of the period of time for which the surveillance was required to be maintained. 50 U.S.C. § 1804(a)(1)-(9).
The application had to be approved by the Attorney General upon the Attorney General’s finding that it satisfied the criteria and requirements of such an application. 50 U.S.C. § 1804(a). The application had to include a certification from a high ranking executive officer employed in the area of national security or defense that the information sought was foreign intelligence information as defined by 50 U.S.C. § 1801(e). 50 U.S.C. § 1804(a)(6). Foreign intelligence information included information relating to the ability of the United States to protect against international terrorism, and “information with
4

respect to a foreign power or foreign territory that relates to . . . the conduct of the foreign affairs of the United States,” among other things. 50 U.S.C. § 1801(e). FISA required that the certification include a statement that the information sought could not reasonably be obtained by normal investigative techniques and designating the type of foreign intelligence information sought in accordance with § 1801(e). 50 U.S.C. § 1804(a)(6). Finally, after the passage of the Patriot Act, the executive officer was required to certify that “a significant purpose of the surveillance is to obtain foreign intelligence information.” 50 U.S.C. § 1804(a)(6).
Prior to approving the requested electronic surveillance, a FISC judge had to find that: (1) the application was made by a federal officer and approved by the Attorney General; (2) there was probable cause on the basis of the application to believe that the target of the electronic surveillance was a foreign power or agent of a foreign power, and that each of the facilities or places at which the electronic surveillance was directed was being used, or was about to be used, by a foreign power or an agent of a foreign power; (3) the proposed minimization procedures met the definition of minimization procedures set forth in § 1801(h); and (4) the application
5

contained all statements and certifications required under § 1804. 50 U.S.C. § 1805(a).
Pursuant to FISA, a FISC judge who was satisfied that an application met the statutory requirements was required to enter an ex parte order approving the requested electronic surveillance. 50 U.S.C. § 1805(a). Such an order was required to specify the identity of the target of the surveillance; the location of each of the facilities or places at which the surveillance would be directed; the type of information sought and communications or activities to be subjected to the surveillance; the means by which the surveillance would be effected; and the period of time for which the surveillance was approved; and to direct that the minimization procedures be followed. 50 U.S.C. § 1805(c).
The FISA framework governed 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 within the United States and persons located outside the United States (“international communications”). FISA defined “electronic surveillance” to include:
6

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of Title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
50 U.S.C. § 1801(f). The FISA requirements thus applied to the
surveillance of international wire communications (including
telephone and email communications) provided that the
surveillance occurred in the United States. 50 U.S.C. §
1801(f)(2). The FISA requirements did not apply to the
7

surveillance of international radio communications, or to surveillance of international wire communications that did not take place in the United States,3 unless such surveillance targeted a known United States person located in the United States. See 50 U.S.C. §§ 1801(f)(1-2).4

B The FAA was signed into law on July 10, 2008. The FAA leaves much of the preexisting FISA framework intact. However, new Section 702 of FISA, added by Section 101(a)(2) of the FAA and codified at 50 U.S.C. § 1881a, sets forth a new framework displacing the preexisting FISA framework where the Government seeks approval from the FISC to authorize surveillance targeting non-United States persons located outside the United States to acquire foreign intelligence information. Under the FAA, “[n]otwithstanding any other provision of law, upon the issuance of an order in accordance with [50 U.S.C. § 1881a(i)(3)] or a determination under [50 U.S.C. § 1881a(c)(2)], the Attorney General and the Director of National Intelligence may authorize

3

The plaintiffs represent that at the time FISA was passed,

approximately half of Americans’ international communications were

transmitted by radio or satellite, the monitoring of which Congress did not

regulate. The Government represents that the percentage was greater than

half.

4

FISA defines “United States person” to mean a citizen of the United

States or an alien lawfully admitted for permanent residence, in relevant

part. 50 U.S.C. § 1801(i).

8

jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a).
In order to authorize surveillance under the FAA, the Attorney General and the Director of National Intelligence must apply for and obtain an order authorizing such surveillance from the FISC. 50 U.S.C. §§ 1881a(a) & (i)(3).5 The application consists of providing a written certification and any supporting affidavit, under oath and under seal, to the FISC. The certification must attest, among other things, that a significant purpose of the requested surveillance is to obtain foreign intelligence information; that the surveillance involves obtaining such information from or with the assistance of an electronic communications service provider; and that the surveillance complies with certain limitations set forth in § 1881a(b). 50 U.S.C. § 1881a(g)(2)(A)(v-vii).

5

The FAA provides an exception where the Attorney General and the

Director of National Intelligence determine that exigent circumstances exist

because, without immediate implementation of an authorization of

surveillance, intelligence important to the national security of the United

States may be lost or not timely acquired and time does not permit the

issuance of an order pursuant to 50 U.S.C. § 1881a(i)(3) prior to the

implementation of such authorization. 50 U.S.C. § 1881a(c)(2). In the case

of a determination of exigent circumstances pursuant to 50 U.S.C. §

1881a(c)(2), the Attorney General and the Director of National Intelligence

must undertake as soon as practicable, but in no event later than 7 days

after such determination is made, to fulfill the same requirements ordinarily

imposed before an order authorizing surveillance under the FAA may be

obtained from the FISC. 50 U.S.C. § 1881a(g)(1)(B).

9

Pursuant to the limitations set forth in § 1881a(b), the

requested surveillance may not intentionally target any person

known at the time of the surveillance to be located in the

United States; any person reasonably believed to be located

outside the United States if the purpose of such surveillance is

to target a particular, known person reasonably believed to be

in the United States; or any United States person reasonably

believed to be located outside the United States. 50 U.S.C. §

1881a(b)(1-3). Moreover, the requested surveillance may not

intentionally acquire communications known at the time of the

surveillance to be domestic communications, 50 U.S.C. §

1881a(b)(4), although it may intentionally acquire international communications.6 Section 1881a(b) also provides that the

requested surveillance must be conducted in a manner consistent

with the Fourth Amendment. 50 U.S.C. § 1881a(b)(5).

The certification must attest that guidelines have been

adopted in accordance with 50 U.S.C. § 1881a(f) to ensure

compliance with the limitations in § 1881a(b) and to ensure that

an application for a court order is filed as required by §

1881a. 50 U.S.C. § 1881a(g)(2)(A)(iii). In addition, such

guidelines must be provided to the congressional intelligence

committee and the Committees on the Judiciary of the Senate and

6

Insofar as the FAA regulates the surveillance of international radio

communications to obtain foreign intelligence information, it establishes

regulations where none existed under FISA.

10

the House of Representatives, as well as the FISC. 50 U.S.C. § 1881a(f)(2). The certification must attest that such guidelines are consistent with the Fourth Amendment. 50 U.S.C. § 1881a(g)(2)(A)(iv).
The certification must attest that the Government has targeting and minimization procedures in place that have been approved by the FISC or have been submitted to the FISC for approval or will be submitted with the certification. 50 U.S.C. § 1881a(g)(2)(A)(i-ii). The certification must also include the actual procedures and attest that they comply with the Fourth Amendment. 50 U.S.C. § 1881a(g)(2)(B) & (g)(2)(A)(iv). “Targeting procedures” are procedures reasonably designed to ensure that the requested surveillance is limited to targeting persons reasonably believed to be located outside the United States, and to prevent the intentional surveillance of communications known to be domestic communications at the time of the surveillance. 50 U.S.C. § 1881a(d)(1) & (g)(2)(A)(i). “Minimization procedures” for purposes of electronic surveillance under the FAA must meet the definition of minimization procedures for purposes of electronic surveillance under FISA. Minimization procedures are:
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and
11

retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in [50 U.S.C. § 1801(e)(1)], shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance; [and]
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes[.]
50 U.S.C. § 1801(h).7
The certification required by the FAA must be supported, as
appropriate, by the affidavit of any appropriate official in the
area of national security who is appointed by the President, by
and with the advice and consent of the Senate, or who is the
head of an element of the intelligence community. 50 U.S.C. §
1881a(g)(2)(C). The certification must include an effective
date for the authorization that is at least 30 days after the

7

Section 1801(h) includes a fourth requirement for minimization

procedures where surveillance is conducted pursuant to 50 U.S.C. § 1802(a).

Surveillance conducted under § 1802(a) is solely directed at communications

transmitted by means of communications used exclusively between or among

foreign powers, among other things, and may be authorized without a court

order if the requirements of that section are satisfied. 50 U.S.C. §

1802(a). Surveillance conducted pursuant to the FAA is not subject to the

minimization requirement set forth in § 1801(h) that applies only to

surveillance conducted pursuant to § 1802(a).

12

submission of the certification to the FISC; or, if the acquisition has begun or the effective date is less than 30 days after the submission of the certification to the FISC, the date the acquisition began or the effective date of the acquisition. 50 U.S.C. § 1881a(g)(2)(D).
The FISC has jurisdiction to review a certification for electronic surveillance under the FAA, including the targeting and minimization procedures that were adopted by the Attorney General in consultation with the Director of National Intelligence. 50 U.S.C. § 1881a(i)(1)(A). The FAA provides that the FISC shall review the certification, the targeting procedures and the minimization procedures to ensure that they comply with all of the requirements discussed above. 50 U.S.C. § 1881a(i)(2). If the FISC finds that the certification contains all the required elements and the targeting and minimization procedures are in compliance with the statute and with the Fourth Amendment, it must issue an order granting the Government approval to authorize the requested surveillance. 50 U.S.C. § 1881a(i)(3)(A). The FISC must complete its review and issue an order with respect to an application for an order authorizing surveillance no more than 30 days after the date on which the certification and the targeting and minimization
13

procedures are submitted for approval. 50 U.S.C. § 1881a(i)(1)(B).
The FAA allows for the Government to appeal an order rejecting an application for a surveillance order to the FISA Court of Review. The Court of Review must decide an appeal no more than 60 days from the date the appeal is filed. The Government is permitted to continue any surveillance affected by a FISC order while an appeal to the Court of Review is pending, or while any rehearing of the FISC order by the FISC en banc is pending. The Government may file a petition for a writ of certiorari with the Supreme Court for review of a decision of the Court of Review. 50 U.S.C. § 1881a(i)(4).
The FAA provides for a semiannual assessment of compliance with the targeting and minimization procedures adopted in accordance with 50 U.S.C. §§ 1881a(d) and (e) and the guidelines adopted in accordance with § 1881a(f). The FAA provides that each assessment shall be made by the Attorney General and the Director of National Intelligence, and submitted to the FISC, the congressional intelligence committees, and the Committees on the Judiciary of the House of Representatives and the Senate.8 50 U.S.C. § 1881a(l).

8

The submission of semiannual assessments to the congressional

committees, under this provision and all other provisions in the FAA, is

subject to the Rules of the House of Representatives, the Standing Rules of

14

The FAA also provides that the Inspector General of the Department of Justice and the Inspector General of each element of the intelligence community authorized to acquire foreign intelligence information under § 1881a are authorized to review compliance with the targeting and minimization procedures adopted under §§ 1881a(d) and (e) and the guidelines adopted under § 1881a(f). With respect to surveillance authorized under § 1881a, those officials are required to review the number of disseminated intelligence reports containing a reference to a United States person identity and the number of United States person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting. They are also required to review the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed. They must provide each such review to the Attorney General, the Director of National Intelligence, the congressional intelligence committees, and the Committees on the Judiciary of the House of Representatives and the Senate. 50 U.S.C. § 1881a(l)(2).
the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution. 50 U.S.C. § 1881a(l)(B).
15

Finally, the FAA provides for the head of each element of the intelligence community conducting surveillance authorized under § 1881a to conduct an annual review to determine whether there is reason to believe that foreign intelligence information has been or will be obtained from the surveillance. The annual review is required to provide an accounting of the number of disseminated intelligence reports containing a reference to a United States person identity; an accounting of the number of United States person identities subsequently disseminated by that element in response to requests for identities that were not referred to by name or title in the original reporting; the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and a description of any procedures developed by the head of such element of the intelligence community and approved by the Director of National Intelligence to assess, in a manner consistent with national security, operational requirements and the privacy interests of United States persons, the extent to which the surveillance authorized under § 1881a acquires the communications of United States persons, and the results of any such assessment. 50 U.S.C. § 1881a(l)(3)(A). The purpose of the annual review is to evaluate the adequacy of the minimization procedures used and,
16

as appropriate, the application of the minimization procedures to a particular surveillance. 50 U.S.C. § 1881a(l)(3)(B). The annual reviews are to be provided to the FISC, the Attorney General, the Director of National Intelligence, the congressional intelligence committees, and the Committees on the Judiciary of the House of Representatives and the Senate. 50 U.S.C. § 1881a(l)(3)(C).9
In applying for an order from the FISC approving the authorization of surveillance under the FAA, the Government is not required to identify the specific facilities, places, premises, or property at which the surveillance will be directed or conducted. 50 U.S.C. § 1881g(4). The Government is also not required to identify the specific targets of the requested surveillance or to show probable cause that the prospective targets of the surveillance are foreign powers or agents thereof.

II The plaintiffs move for summary judgment declaring the FAA unconstitutional, and the Government moves for summary judgment dismissing the plaintiffs’ constitutional challenge. Summary

9

The FAA also provides a framework for directives to be issued by the

Attorney General and the Director of National Intelligence to electronic

communication service providers in order to carry out surveillance authorized

under § 1881a, and for judicial review of such directives. See 50 U.S.C. §

1881a(h).

17

judgment may not be granted unless “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008); New York State Motor Truck Ass’n v. Pataki, No. 03 Civ. 2386, 2004 WL 2937803, at *3 (S.D.N.Y. Dec. 17, 2004).
Although both parties have moved for summary judgment, the only factual submissions in the record are those made by the plaintiffs. In opposing the plaintiffs’ motion for summary judgment, and in responding to the plaintiffs’ Statement of Undisputed Facts pursuant to Local Rule 56.1 (the plaintiffs’ “56.1 Statement” or “56.1 Stmt.”), the Government makes no reference to any evidence except that submitted by the plaintiffs. Moreover, the Government submits no facts in support of its own motion for summary judgment. At oral argument, the Government clarified that it was accepting the factual submissions of the plaintiffs as true for purposes of these motions. (Tr. 48-49.) Of course, that does not imply the acceptance of any legal conclusions embedded in the plaintiffs’ 56.1 statement. See, e.g., Alliance Sec. Products, Inc. v. Fleming Co., 471 F. Supp. 2d 452, 454 & n.8 (S.D.N.Y. 2007)
18

(legal arguments in Rule 56.1 Statement disregarded in determining whether there are genuine issues of material fact).10
Accordingly, the following facts are undisputed.11 The plaintiffs are attorneys and human rights, labor, legal, and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with colleagues, clients, journalistic sources, witnesses, experts, foreign governmental officials, and victims of human rights abuses located outside the United States. (Pl.’s 56.1 Stmt. ¶ 9(A).) Some of the plaintiffs communicate by telephone and email with people the United States Government believes or believed to be associated with terrorist organizations. (Pl.’s 56.1 Stmt. ¶ 9(B).) Some of the plaintiffs communicate by telephone and email with political and

10

The plaintiffs argue in passing that the defendants should not be

entitled to summary judgment because they failed to submit a 56.1 Statement

in support of their motion for summary judgment. However, the Court can

dispense with the requirement of a 56.1 Statement, see Hadden v. Bureau of

Prisons, No. 07 Civ. 8586, 2008 WL 5429823, at *5 (Dec. 22, 2008) (citing

D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 109 n.2 (2d Cir. 2006)), and it

would make no sense to require such a statement from the defendants in this

case because they are prepared to accept the plaintiffs’ allegedly undisputed

facts, the conditional acceptance of which is in any event the consequence of

failing to submit a 56.1 Statement. Cf. Cosy Goose Hellas v. Cosy Goose

U.S.A. Lt., 581 F. Supp. 2d 606, 616-17.

Moreover, when the plaintiffs’ standing has been challenged on a motion

for summary judgment the plaintiffs must come forward with sufficient

evidence to show that there is a genuine material issue as to their standing

to warrant a trial. See Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26, 53-54 (1976). If the plaintiffs fail to meet this

standard, then summary judgment should be granted dismissing their complaint.

11

The Court only recites those facts set forth by the plaintiffs that are

material to the disposition of these motions. See, e.g., Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

19

human rights activists who oppose governments that are supported economically or militarily by the United States Government. (Pl.’s 56.1 Stmt. ¶ 9(C).) Some of the plaintiffs communicate by telephone and email with people located in geographic areas that are a special focus of the United States Government’s counterterrorism or diplomatic efforts. (Pl.’s 56.1 Stmt. ¶ 9(D).)
All of the plaintiffs exchange information that constitutes foreign intelligence information within the meaning of the FAA. (Pl.’s 56.1 Stmt. ¶ 9(E).) The plaintiffs believe that their communications will be monitored under the FAA, and that those communications will be retained, analyzed, and disseminated by the Government. (Pl.’s 56.1 Stmt. ¶ 9(F).) This belief has affected the way the plaintiffs do their jobs. (Pl.’s 56.1 Stmt. ¶ 9(G).) Namely, the plaintiffs feel constrained in locating witnesses, cultivating sources, gathering information, and communicating confidential information to their clients, among other things. (Pl.’s 56.1 Stmt. ¶ 9(H).) The plaintiffs have ceased engaging in certain conversations on the telephone and by email. (Pl.’s 56.1 Stmt. ¶ 9(I).) The attorney plaintiffs have an ethical obligation to avoid communicating confidential information about client matters over telephone, fax, or email if they have reason to believe that it is likely
20

to be intercepted by others. (Pl.’s Supplemental 56.1 Stmt. ¶ 2(J).)
The plaintiffs have incurred costs in seeking to protect the confidentiality of sensitive and privileged communications. (Pl.’s 56.1 Stmt. ¶ 9(J).) Some of the plaintiffs now travel long distances to meet personally with individuals instead of communicating with those individuals over telephone or email. (Pl.’s 56.1 Stmt. ¶ 9(K).) On the whole, the plaintiffs’ reaction to the FAA has affected their work more than their reaction to previous regulatory enactments providing frameworks for Government surveillance. (Pl.’s 56.1 Stmt. ¶ 9(L).)
III The plaintiffs argue that on its face, the FAA violates the Fourth Amendment, the First Amendment, and Article III of the Constitution. The plaintiffs argue under the Fourth Amendment that the FAA fails to protect the privacy interest of Americans in the content of their telephone calls and emails. They argue under the First Amendment that the FAA chills the constitutionally protected speech of Americans who fear that their telephone calls and emails will be subject to surveillance. They argue under Article III that the process of judicial review set forth in the FAA violates the principle of
21

the separation of powers by allowing the FISC to issue orders approving the authorization of surveillance in the absence of any case or controversy and by allowing for the Government to continue surveillance while an appeal to the FISC Court of Review is pending.
In order to reach the merits of the plaintiffs’ constitutional arguments, the Court must first determine whether the plaintiffs have standing to bring this action. See, e.g., Warth v. Seldin, 422 U.S. 490, 498 (1975) (“In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”); Ontario Public Service Employees Union Pension Trust Fund v. Nortel Networks Corp., 369 F.3d 27, 34 (2d Cir. 2004) (“In order for our court to properly reach the merits of the case . . . we must first find that the parties involved have met the basic requirements of standing.”); Local 851 of International Brotherhood of Teamsters v. Thyssen Hill Logistics, Inc., Nos. 95 Civ. 5179, 02 Civ. 6250, 2004 WL 2269703, at *5 (E.D.N.Y. Sept. 30, 2004) (“Standing is a jurisdictional prerequisite; accordingly, the Court must initially determine whether [the plaintiff] has standing to invoke the jurisdiction of the federal courts to determine the
22

merits of the underlying disputes.”) (internal citation and quotation marks omitted).
Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). To satisfy the irreducible constitutional minimum of Article III standing, a plaintiff must show that (1) it has suffered an actual or imminent injury in fact, that is concrete and particularized, and not conjectural or hypothetical; (2) there is a causal connection between the injury and the defendant’s actions; and (3) it is likely that a favorable decision in the case will redress the injury. Id. at 560-61. “The party invoking federal jurisdiction bears the burden of establishing these elements.” Id. at 561.
Because the judicial power of federal courts “exists only to redress or otherwise protect against injury to the complaining party,” a federal court’s jurisdiction “can be invoked only when the plaintiff . . . has suffered ‘some threatened or actual injury resulting from the putatively illegal action . . . .’” Warth, 422 U.S. at 499 (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973)). The plaintiff must show a particularized injury that affects the plaintiff in a personalized and individual way. Lujan, 504 U.S. at 560 n.1.
23

Only a plaintiff so injured has “‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth, 422 U.S. at 49899 (quoting Baker v. Carr, 399 U.S. 186, 204 (1962)).
Apart from the irreducible constitutional minimum, the Supreme Court has also recognized other prudential limitations on the class of persons who may invoke the federal judicial power. “[T]he Court has held that when the asserted grievance is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction.” Warth, 422 U.S. at 499. The Court has also held that the plaintiff must generally assert the plaintiff’s own rights, and cannot rest on the legal rights or interests of third parties. Id. This case turns on whether the plaintiffs have met the irreducible constitutional minimum of personal, particularized, concrete injury in fact without turning to the additional prudential aspects of standing.
The plaintiffs advance what they characterize as two independent bases for Article III standing to challenge the constitutionality of the FAA. First, the plaintiffs argue that they have standing on the basis of their fear that their
24

communications will be monitored under the FAA because that fear is “actual and well-founded.” Second, the plaintiffs argue that they have standing on the basis of the costs they have incurred in taking measures to protect the confidentiality of their international communications, in light of their fear of surveillance. The Court addresses each proffered basis for standing in turn.

A The plaintiffs argue that their fear of surveillance under the FAA provides a basis for Article III standing to challenge the constitutionality of that statute. They seize upon case law indicating that in the context of a pre-enforcement challenge to a statute on First Amendment grounds, a plaintiff need only demonstrate “‘an actual and well-founded fear that the law will be enforced against’ it” to satisfy the injury-in-fact requirement for Article III standing. Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000) (quoting Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988)); see also Am. Booksellers Foundation v. Dean, 342 F.3d 96, 101 (2d Cir. 2003).12 The plaintiffs urge that their fear of

12

The Court of Appeals for the Second Circuit has indicated that the

standard of showing an “actual and well-founded fear” of enforcement is

“slightly” easier to satisfy than the standard of showing a “realistic

danger” of enforcement that applies to non-First Amendment pre-enforcement

25

surveillance is “actual and well-founded” because, according to
the plaintiffs, “the FAA authorizes the government to monitor
plaintiffs’ international communications” and “plaintiffs’
communications are likely to be collected under the challenged
law” based on the nature of the communications and the identity
of the persons with whom the plaintiffs communicate. (Pl.’s
Reply Br. 4.) (emphasis in original).
challenges to a statute. Am. Booksellers, 342 F.3d at 101 (internal quotation marks omitted). The plaintiffs argue that the “actual and wellfounded fear” standard should apply to the determination of standing with respect to all of their claims, rather than the First Amendment claim alone, because the alleged conduct that is the source of the injuries asserted under each constitutional claim – the potential enforcement of the statute – implicates First Amendment rights. The difference between the “actual and well-founded fear” standard and the “realistic danger” standard has never been explained, and it should be noted that there are some indications that there is no meaningful difference between the two standards. See Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 227 (2d Cir. 2006) (finding standing for as-applied First Amendment challenge based on “actual and well-founded fear” and “realistic danger”); cf. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (invoking “realistic danger” standard in First Amendment context). In any event, any difference between the “actual and well-founded fear” standard and the “realistic danger” standard has no bearing on the outcome of this case, and the parties agree that Article III standing should be assessed under a single standard with respect to all of the plaintiffs’ claims. (Tr. 12, 54.) Therefore, the Court applies the “actual and well-founded fear” standard to all of the challenges to the FAA.
In addition, because the potential enforcement of the challenged statute accounts for all of the injuries asserted under each constitutional claim; the parties agree that Article III standing should be assessed under a single standard with respect to all of the plaintiffs’ claims; and separate standing analyses for each constitutional claim would not affect the outcome of this case, the Court does not undertake a separate standing analysis with respect to each alleged constitutional violation. See Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 78 (1978) (holding that plaintiffs need not “demonstrate a connection between the injuries they claim and the constitutional rights being asserted”); United Presbyterian Church in the United States of America v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) (Scalia, J.) (conducting collective standing analysis for First, Fourth, and Fifth Amendment claims and separation of powers claims); cf. Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185 (2000) (standing must be demonstrated separately for injunctive relief and civil penalties because these are different forms of relief).
26

The Government argues that the plaintiffs’ fear that their communications will be monitored under the FAA does not confer standing on the plaintiffs to challenge the constitutionality of that statute. The Government contends that standing to make a pre-enforcement challenge to a statute may only be found “where there is a threat of imminent enforcement of a specific proscription that demonstrably applies to a plaintiff’s actions” (Gov’t Reply Br. 2-3), and that no such basis for a preenforcement challenge to the FAA exists here.
The plaintiffs have failed to establish standing to challenge the constitutionality of the FAA on the basis of their fear of surveillance. The plaintiffs can only demonstrate an abstract fear that their communications will be monitored under the FAA. The FAA creates a framework within which intervening federal officials may apply for approval from the FISC to authorize surveillance targeting non-United States persons located outside the United States to acquire foreign intelligence information. The FAA sets forth the requirements that an application to obtain a surveillance order from the FISC must satisfy. Contrary to the characterization of the statute in the plaintiffs’ motion papers, the FAA itself does not authorize the surveillance of the plaintiffs’ communications. Indeed, the FAA neither authorizes surveillance nor identifies
27

on its face a class of persons that includes the plaintiffs. Rather the FAA authorizes specified federal officials to seek a surveillance order from the FISC. That order cannot target the plaintiffs and whether an order will be sought that affects the plaintiffs’ rights, and whether such an order would be granted by the FISC, is completely speculative.
1. Courts have explicitly rejected standing based on a fear of surveillance in circumstances similar to those in this case. In United Presbyterian Church in the United States of America v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) (Scalia, J.), the Court of Appeals for the District of Columbia Circuit denied standing to plaintiffs seeking to challenge the constitutionality of Executive Order No. 12333 (the “Executive Order”). The Executive Order created a framework within which intelligence agencies could apply to the Attorney General for approval to collect, retain or disseminate certain kinds of intelligence information. See Executive Order No. 12333 at ¶¶ 2.3, 2.5. The Executive Order set forth the kinds of information that could be collected and established limitations on permissible collection techniques, including electronic surveillance under certain circumstances. Executive Order No. 12333 at ¶¶ 2.3, 2.4, 2.5.
28

The plaintiffs were political and religious organizations that the Court assumed were more likely than the public at large to be subject to surveillance under the Executive Order. See United Presbyterian, 738 F.2d at 1380. The Court rejected the plaintiffs’ attempt to rely upon the “threat” of surveillance for standing to challenge the Executive Order, explaining that “[t]he problem with [the plaintiffs’] attempt to rely upon this sort of harm to establish standing in the present case is that they have not adequately averred that any specific action is threatened or even contemplated against them.” Id. The Court observed that “[t]o give these plaintiffs standing on the basis of threatened injury would be to acknowledge, for example, that all churches would have standing to challenge a statute which provides that search warrants may be sought for church property if there is reason to believe that felons have taken refuge there. That is not the law.” Id.
The plaintiffs’ attempt to rely upon their fear of surveillance as a basis for standing in this case is not materially distinguishable from the attempt that was rejected in United Presbyterian. As in United Presbyterian, the plaintiffs in this case have not shown that any specific action is threatened or even contemplated against them. They have not shown or alleged that the Government has sought or obtained
29

approval from the FISC to authorize surveillance of their communications. They have not shown or alleged that surveillance of their communications has ever taken place under the challenged statute. They only allege a fear, based on a perceived likelihood, that their communications will be surveilled. But absent any showing that such surveillance has been conducted, authorized or even contemplated, the plaintiffs’ fear is speculative.
Moreover, the alleged injury in this case is even more speculative than the injury asserted in United Presbyterian because the FAA requires a court to approve the application for surveillance, which includes making an independent judgment with respect to whether the guidelines proposed by the Executive Branch to circumscribe the requested surveillance comply with the Fourth Amendment. The intervening role carved out for the Judicial Branch in the FAA makes the plaintiffs’ assertion of standing on the basis of their fear of surveillance uniquely attenuated.
Arguments for standing similar to those asserted by the plaintiffs here were also rejected by the Court of Appeals for the Sixth Circuit in ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007). ACLU involved a challenge to the constitutionality of the Terrorist Surveillance Program (the “TSP”) conducted by the
30

National Security Agency (the “NSA”). The TSP entailed the warrantless interception of telephone and email communications with respect to which one party was located outside the United States and the NSA had a reasonable basis to conclude that one party was connected to al Qaeda. See ACLU, 493 F.3d at 648. The plaintiffs were journalists, academics and lawyers who regularly communicated with individuals located overseas whom they believed the NSA suspected of being connected to al Qaeda and whom they believed the NSA would therefore be likely to monitor under the TSP. Id. at 648-49. The ACLU decision was fragmented into three opinions: a lead opinion, a concurrence, and a dissent. Both the lead opinion and the concurring opinion rejected the plaintiffs’ allegation that they had standing on the basis of their fear of surveillance pursuant to the TSP.13
The lead opinion rejected this basis for standing on the rationale that “it would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs themselves have been subjected to an illegal search or seizure.” Id. at 673-74 (Batchelder, J.). The concurring opinion rejected standing on the grounds that the plaintiffs had not shown that they were

13

The lead opinion only discussed this basis for standing in the context

of determining whether the plaintiffs had standing to bring Fourth Amendment

claims in connection with the TSP. However, the lead opinion denied the

plaintiffs standing to bring any of their claims.

31

“personally subject to” the warrantless surveillance policy. Id. at 691 (Gibbons, J., concurring). The concurring opinion drew an implicit distinction between proof of being subject to the surveillance policy and proof of having been subjected to actual surveillance pursuant to that policy. The former consisted of “evidence as to whether, in the government’s view, there are reasonable grounds to believe that a party to the [plaintiffs’] communications is affiliated with al Qaeda.” Id. at 690 (Gibbons, J., concurring) (internal quotation marks omitted). It was the failure to present such evidence that was fatal to the plaintiffs’ assertion of standing. Relying on United Presbyterian, the concurring opinion distinguished cases involving “[a] genuine threat of enforcement of a policy against a plaintiff who is demonstrably subject to that policy,” which supports standing, from cases “in which a plaintiff cannot establish that he is subject to the policy but merely fears that he is subject to the policy that may be enforced, which cannot support standing.” Id. at 689 n.2 (Gibbons, J., concurring). The plaintiffs could not demonstrate a genuine threat of surveillance because they could not show that they were subject to the challenged surveillance policy – that they would be targeted by the policy. See id. at 691 (Gibbons, J., concurring) (“There is no relevant factual difference between
32

the United Presbyterian Church plaintiffs, whose activities the D.C. Circuit conceded made them more likely to be subject to surveillance, and the attorney-plaintiffs in this case, whose representation of exactly the types of clients targeted by the TSP makes them more likely to be targeted by the TSP.” Id. at 691 (Gibbons, J., concurring) (internal citations omitted).
The plaintiffs in this case, like the plaintiffs in ACLU and United Presbyterian, have not made any showing that they are subject to the surveillance policy they seek to challenge. Without showing that they are subject to the statute they seek to challenge, the plaintiffs’ fear that they will suffer harm from that statute is speculative and hypothetical.
Indeed, the plaintiffs in this case are one step further removed from the challenged surveillance policy than were the plaintiffs in ACLU. The plaintiffs in ACLU sought to challenge an actual program of surveillance that had already been authorized by the President. See ACLU, 493 F.3d at 648 n.1. The TSP was more than a framework within which federal officials could apply for authorization to engage in surveillance. The NSA was already authorized to monitor communications with respect to which one party was located outside the United States and there was a reasonable basis to believe that one party was connected to al Qaeda. As the concurring opinion in ACLU
33

explained, the plaintiffs in that case could not show that they were subject to that authorization of surveillance because they could not show that their communications fell into the class of communications that the NSA was authorized to monitor. By contrast, the FAA does not authorize surveillance but rather authorizes the FISC to do so pursuant to the procedures set forth in the statute. Thus the standing argument by the plaintiffs in this case is more speculative and hypothetical than the standing argument rejected by the Court of Appeals for the Sixth Circuit in ACLU. No case from within or outside the context of surveillance provides any basis to conclude that the speculative fear of harm asserted by the plaintiffs is sufficient to support standing for a pre-enforcement challenge to a statute.
2. At oral argument the plaintiffs sought to minimize the persuasiveness of United Presbyterian and ACLU, which denied standing to plaintiffs who feared the surveillance of their communications, by pointing to “physical surveillance cases” where the Supreme Court reached the merits of challenges to laws or policies authorizing drug or alcohol testing for specific classes of persons, without requiring that the plaintiffs had
34

actually submitted to such testing before bringing such challenges. (Tr. 9 (“The cases I’m thinking of are cases like Earls and Chandler and Skinner.”).) None of those physical search cases identified by the plaintiffs undermines the reasoning of the electronic surveillance cases or otherwise provides any support for the plaintiffs’ standing argument. The physical search cases concerned plaintiffs who were in a defined class of persons subject to a challenged policy of drug or alcohol testing and who faced a genuine threat of being tested pursuant to that policy. In Board of Education of Independent School District Number 92 of Pottawatomie County v. Earls, 536 U.S. 822, 826 & n.1 (2002), the Supreme Court found that a student plaintiff who participated in competitive extracurricular activities at school had standing to challenge a Board of Education policy requiring all students participating in such activities to consent to drug testing. It was indisputable in Earls that the challenged policy required a student who participated in such extracurricular activities, such as the plaintiff, to take a drug test before participating in the activity, and to submit to random drug testing while participating in the activity at any time based on reasonable suspicion. Earls, 536 U.S. at 826. Earls therefore has no application to this case, where the plaintiffs are not required
35

to do anything or to submit to anything, and where there is no showing that the Government has authorized any action against the plaintiffs. See also Chandler v. Miller, 520 U.S. 305, 30809 (1997) (ruling on merits, without discussing standing, where plaintiff candidates for state offices challenged state law requiring candidates for such offices to certify that they had taken a urinalysis drug test within 30 days prior to qualifying for nomination and that the test results were negative).
Among the drug or alcohol testing cases, the plaintiffs place particular emphasis on Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 611 (1989), in which the Supreme Court upheld on the merits regulations authorizing railroads to conduct drug and alcohol testing of railroad employees after certain accidents, in the event of certain rule violations, or where a supervisor had a reasonable suspicion based on personal observation that an employee was under the influence of alcohol. Skinner provides little guidance for the standing analysis in this case because standing was not contested in that case. It was not discussed by the Supreme Court, the issue was not briefed before the Court, and the appellate court decision contained no discussion of standing. See Ry. Labor Executives’ Ass’n v. Burnley, 839 F.2d 575 (9th Cir. 1988).
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To the extent that the Supreme Court implicitly determined that there was standing in Skinner as a necessary prerequisite to jurisdiction, nothing about that determination affects the standing analysis in this case. The regulations at issue in Skinner authorized drug or alcohol testing of a defined class of persons represented by the plaintiff labor organizations, namely railroad employees. The plaintiffs were plainly subject to the challenged policy. By contrast, the FAA neither authorizes surveillance nor identifies, on its face, a class of persons to which the plaintiffs belong, and there is no allegation or evidence of an order authorizing Government surveillance that would encompass the plaintiffs’ communications. Thus the relation in which the railroad employees stood to the challenged policy in Skinner is wholly unlike the relation in which the plaintiffs in this case stand to the FAA.
3. Thus the electronic surveillance cases undermine any claim of standing in this case, and the drug or alcohol testing cases on which the plaintiffs rely do not support the plaintiffs’ claims of standing to challenge the FAA based on their fear of surveillance. However, the plaintiffs urge the Court to look beyond surveillance cases. (See Tr. 11 (“Surveillance is just
37

like any other context . . . . [I]t’s a completely artificial distinction between surveillance cases [and] other contexts.”).) The plaintiffs claim that their position is supported by cases outside the surveillance context considering the issue of standing to make a pre-enforcement challenge to a statute or regulation. They argue that under those cases they have shown an “actual and well-founded fear of enforcement” of the FAA against them that is sufficient for standing in this case.
The plaintiffs’ reliance on non-surveillance cases considering pre-enforcement challenges to statutes or regulations is unavailing. The standing analysis displayed in those cases is fully consistent with the rejection of standing in the electronic surveillance cases. Indeed, the application of the reasoning employed by the non-surveillance cases to this case reinforces the plaintiffs’ lack of standing to challenge the FAA. The non-surveillance cases cited by the plaintiffs stand for the proposition that a plaintiff may challenge a specific law or regulation before it is enforced against the plaintiff if the plaintiff is subject to that law or regulation and has a well-founded fear that it will be so enforced. The plaintiffs in this case have made no showing that they are subject to any specific law or regulation that they seek to challenge. The FAA does not require that the plaintiffs do
38

anything or refrain from doing anything such that they might have a well-founded fear that the Government would take action against them for failing to abide by the statute. Moreover, the FAA does not authorize surveillance of the plaintiffs’ communications and the plaintiffs have made no showing that the Government has sought any such surveillance pursuant to the general framework set forth in the statute or that such surveillance has been authorized. It is unnecessary to seek to define the outer limits of what it would take for the plaintiffs to be subject to the FAA such that they would have standing to challenge its constitutionality. The plaintiffs’ failure to show that they are subject to the FAA in any concrete way is sufficient to conclude that the plaintiffs lack standing to challenge the FAA.
Under the line of non-surveillance cases referred to by the plaintiffs, “[a] plaintiff bringing a pre-enforcement facial challenge against a statute need not demonstrate to a certainty that it will be prosecuted under the statute to show injury, but only that it has an actual and well-founded fear that the law will be enforced against it.” Vt. Right to Life, 221 F.3d at 382 (internal quotation marks omitted). The plaintiffs seek to couch their fear of surveillance under the FAA as an “actual and well-founded fear” that the FAA will be enforced against them.
39

But the cases are clear that an actual and well-founded fear of enforcement depends upon a reasonable showing that the plaintiff is subject to the challenged law or regulation. In the cases cited by the plaintiffs involving pre-enforcement challenges to non-surveillance statutes, the plaintiffs in those cases were subject to a challenged statute or regulation such that there would be consequences resulting from a failure to comply. Courts reasonably have allowed challenges to such legal proscriptions without requiring the plaintiff to incur the penalties of noncompliance. Cf. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 302-03 (1979) (granting standing for preenforcement challenge to certain provisions of statute based on “realistic danger” of enforcement where plaintiffs intended to engage in conduct “arguably prohibited by the statute”); Pacific Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir. 2008 (finding standing for pre-enforcement challenge by national bank to state statute limiting certain interest rates where plaintiff “reasonably interpreted [the statute’s] limitation as, on its face, applying to [the plaintiff]”; Vt. Right to Life, 221 F.3d at 383 (finding standing for pre-enforcement challenge to statute proscribing range of activities relating to campaign finance disclosure and reporting requirements where plaintiff’s interpretation of proscription to cover its activities was
40

“reasonable,” and plaintiff’s activities “could easily be construed” to fall within the statute’s proscription); Nitke v. Gonzales, 413 F. Supp. 2d 262, 267 (S.D.N.Y. 2005) (per curiam) (“[T]o show that a fear [of enforcement] is well-founded, the plaintiff must show that it is reasonable. A fear that a statute will be enforced against a plaintiff is reasonable if the plaintiff’s interpretation of the statute to reach his or her conduct is itself reasonable.”) (internal citation and quotation marks omitted).
Every non-surveillance pre-enforcement challenge case cited by the plaintiffs involved a law or regulation that could, at the very least, reasonably be interpreted on its face to apply to the plaintiffs in that case. The plaintiffs in such cases faced the risks of non-compliance unless they received judicial relief from enforcement of the statute or regulation against them. See, e.g., Am. Booksellers Ass’n, 484 U.S. at 392 (granting standing for pre-enforcement challenge to statute where “the law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution”); Am. Booksellers Foundation, 342 F.3d at 100-01 (finding standing for pre-enforcement challenge to state statute proscribing residents from distributing pornographic material
41

harmful to minors where statute “reach[ed] material posted on plaintiffs’ websites”); New Hampshire Right to Life Political Action Committee v. Gardner, 99 F.3d 8, 14 (1st Cir. 1996) (“The record reveals that [the plaintiff] intends to engage in political expenditures of a type protected under the First Amendment, and New Hampshire’s statutory scheme restricts [the plaintiff’s] freedom to make those expenditures.”) (internal citation omitted); see also Pac. Capital Bank, 542 F.3d at 350; Vt. Right to Life, 221 F.3d at 383.
The plaintiffs attempt to stretch the pre-enforcement cases to apply to their challenge to the FAA even though those cases do not arise in the context of electronic surveillance or surveillance of any kind, and even though the facts of those cases bear no resemblance to the standing issues raised in the context of the FAA. A fundamental tenet of standing is that a plaintiff must show that the plaintiff has suffered an actual or imminent injury in fact, that is concrete and particularized, and not conjectural or hypothetical. Lujan, 504 U.S. at 559. In each of the pre-enforcement cases, the plaintiff or plaintiffs could point to a specific statute that reasonably could be applied to them and which produced consequences if they failed to comply. That provided concrete and particularized injury.
42

In this case, the plaintiffs have not made a reasonable showing that they are subject to the challenged statute in any way. The FAA does not require the plaintiffs to do anything or refrain from doing anything, and does not authorize surveillance to which the plaintiffs will be subject. The statute cannot reasonably be interpreted on its face to apply to the plaintiffs, because it neither authorizes surveillance nor refers to a class of persons that on its face could reasonably be construed to include the plaintiffs. Moreover, there is no allegation or evidence that an order has been obtained pursuant to the statute authorizing the surveillance of communications that could reasonably be construed to include the plaintiffs’ communications. Therefore the plaintiffs cannot establish standing on the basis of a well-founded fear of enforcement. The plaintiffs have failed to show that there is anything to enforce, because they have failed to show that they are subject to the statute. The plaintiffs’ alleged fears of enforcement arising from the fact that surveillance orders of unknown scope may eventually be issued that may affect them bear no resemblance to the fears of enforcement of specific statutes or regulations that reasonably apply to complaining plaintiffs and that have been found sufficient for purposes of standing.
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The Supreme Court’s decision in Babbitt, relied upon by the plaintiffs, does not suggest otherwise. In Babbitt, the plaintiffs, including a farmworkers’ union (the “UFW”), challenged, in relevant part, five provisions of a farm labor statute passed in Arizona. Babbitt, 442 U.S. at 292-93. The Court emphasized that “[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Id. at 298. The Court held that the plaintiffs had standing to challenge three of the five provisions of the statute but not the remaining two. The first challenged provision regulated the election of employee bargaining representatives, specifying certain procedures for such elections. Id. at 292-94, 299. The Court found that the plaintiffs had standing to challenge that provision, because “the UFW has in the past sought to represent Arizona farmworkers and has asserted in its complaint a desire to organize such workers and to represent them in collective bargaining.” Id. at 300.
The second challenged provision limited consumer publicity and violations of the statute were criminally punishable. Id. at 301-02. The Court found that the plaintiffs had standing to challenge that provision because they intended to engage in
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consumer publicity and erroneous statements would be inevitable. Id. at 302.
The third challenged provision was the criminal penalty provision of the statute, which authorized the imposition of criminal sanctions against any person violating any provision of the statute. Id. at 303. The Court found that the plaintiffs had standing to challenge the criminal penalty provision because they intended to engage in conduct that may be proscribed by the statute. Id.
Standing for the plaintiffs in Babbitt lends no support to the plaintiffs in this case. In Babbitt the Supreme Court found that the plaintiffs had standing to challenge provisions of a statute that could be construed on their face to proscribe or regulate conduct in which the plaintiffs wished to engage. The analysis in Babbitt cannot be superimposed onto this case. The plaintiffs in this case have not challenged a statute that regulates or proscribes any conduct by them, as was the case in Babbitt, or that otherwise applies to them.
To the extent the decision in Babbitt bears on the issue of standing in this case, it is instructive for its rejection of the plaintiffs’ bid for standing to challenge one of the remaining provisions of the statute. That provision provided that no employer was required to furnish certain information to
45

a labor organization to enable that organization to communicate with employees of the employer, members of the labor organization, its supporters, or adherents (the “access provision”). Id. at 303-04. The UFW argued that it would seek access to employers’ property to communicate with farmworkers, which the Court conceded it would do. Id. at 304. However, the Court found the challenge to be non-justiciable because the plaintiffs had not yet “assert[ed] an interest in seeking access to particular facilities as well as a palpable basis for believing that access will be refused.” Id.; see also id. (“[I]t is conjectural to anticipate that access will be denied. More importantly, [plaintiffs’] claim depends inextricably upon the attributes of the situs involved.”).
The plaintiffs’ challenge to the FAA is similarly nonjusticiable. The plaintiffs seek to challenge the FAA without any showing that the FISC has approved surveillance that could encompass their communications. Thus the plaintiffs in this case lack a “palpable basis for believing” that their communications will be surveilled. In Babbitt it was “impossible to know whether access will be denied to places fitting [plaintiffs’] constitutional claim.” Id. The plaintiffs’ claim depended upon the attributes of the situs to which they sought access, and the plaintiffs had not asserted an
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interest in gaining access to any particular situs. Like the plaintiffs in Babbitt attempting to challenge the access provision, the plaintiffs in this case have only a hypothetical fear of being harmed by the statute that is insufficient to support standing.14
In sum, the plaintiffs’ assertion of standing to challenge the FAA on the basis of their fear of surveillance finds no support in the cases that have analyzed standing to challenge electronic surveillance. The plaintiffs’ argument also finds no support in the cases relating to drug and alcohol testing or the pre-enforcement challenges to non-surveillance statutes and regulations on which the plaintiffs rely. In none of those contexts do the cases provide any support for the proposition that a plaintiff may challenge a statute to which the plaintiff cannot reasonably be considered subject. On its face the FAA does not regulate or proscribe the plaintiffs’ conduct or authorize surveillance of a class of persons that includes the plaintiffs. Moreover, the plaintiffs have neither alleged nor shown that the Government has sought or obtained an order from the FISC authorizing surveillance that could reasonably be construed to encompass their communications. The plaintiffs’

14

In Babbitt the Supreme Court also denied the plaintiffs standing to

challenge a compulsory arbitration provision in the statute. The Court based

its holding in part on the fact that the plaintiffs had “never contested the

constitutionality of the arbitration clause.” Id. at 305.

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alleged fear of surveillance is insufficient to provide them with standing to challenge the FAA.
B The plaintiffs purport not to rely solely upon their fear of surveillance as a basis for standing to challenge the FAA. They offer what they characterize as a second, independent basis for standing: the costly and burdensome measures they have undertaken, as a result of that fear, to ensure the confidentiality of their international communications. The plaintiffs argue that such costs constitute “specific present objective harm[s]” suffered as a result of the passage of the FAA and therefore qualify as an injury in fact for purposes of standing. (Tr. 18.) The Government counters that any costs incurred by the plaintiffs have resulted not from the challenged statute itself but from the alleged subjective chilling effect the statute has had on the plaintiffs’ communications. The Government urges that the assertion of standing on the basis of a “subjective chill” of this kind is foreclosed by Supreme Court precedent. The costs the plaintiffs have incurred in an effort to protect the confidentiality of their international communications fail to provide a basis for standing to challenge
48

the constitutionality of the FAA. This second basis for standing is not truly independent of the first basis; the costs incurred by the plaintiffs flow directly from the plaintiffs’ fear of surveillance. To allow the plaintiffs to bring this action on the basis of such costs would essentially be to accept a repackaged version of the first failed basis for standing. The plaintiffs cannot manufacture a sufficient basis for standing from an insufficient one.
The plaintiffs argue that their fear of surveillance has chilled their normal exchange of international communications and thereby forced them to incur certain costs to protect the confidentiality of those communications by carrying them out through alternative means. But because the plaintiffs have failed to show that they are subject to the FAA and that they face a threat of harm from its enforcement, the chilling of their speech that they attribute to the statute is actually the result of their purely subjective fear of surveillance. The Supreme Court has held that a subjective chill of this kind is insufficient to support standing. In Laird v. Tatum, 408 U.S. 1, 6 (1972), the Supreme Court considered a First Amendment challenge to an Army surveillance program that entailed “the collection of information about public activities that were thought to have at least some potential for civil disorder,” and
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the dissemination and storage of such information within the Army. The plaintiffs argued that they had standing to challenge the program because the existence of the program chilled the exercise of their First Amendment rights. The Court rejected the argument that a plaintiff “who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity” has standing to invoke the jurisdiction of a federal court. Id. at 10. Noting that the plaintiffs had failed to connect the existence of the surveillance program to their own speech, the Court held that “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.” Id. at 13-14 & n.7 (internal quotation marks omitted). The Court distinguished its prior cases finding standing to challenge Government conduct that allegedly violated the First Amendment by chilling protected speech, explaining that “in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the
50

regulations, proscriptions, or compulsions that he was challenging.” Id. at 11.
Like the plaintiffs in Laird, the plaintiffs in this case allege that their communications are chilled by the sheer existence of the challenged policy without connecting the policy to their own speech. Therefore the analysis of the plaintiffs’ second purported basis for standing in this case is controlled by Laird. In Laird “the chilling effect alleged . . . was so remote and speculative that there was no justiciable case or controversy and therefore the federal courts lacked jurisdiction under Article III of the Constitution.” Davis v. Vill. Park II Realty Co., 578 F.2d 461, 463 (2d Cir. 1978) (finding standing for First Amendment claim alleging that threat of eviction, manifested in attempt by defendant management company to terminate tenant plaintiff’s lease, chilled plaintiff’s expressive activity in connection with tenants’ association). The same is true in this case, where the plaintiffs have failed to make any showing that they are subject to the FAA.
The plaintiffs insist that the Supreme Court’s distinction in Laird between the challenged policy in that case and challenged exercises of Government power in previous cases that were “regulatory, proscriptive, or compulsory in nature” was only a distinction and not a prospective rule that plaintiffs
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may only challenge Government policies that are regulatory, proscriptive, or compulsory. See Socialist Workers Party v. Attorney General of the United States, 419 U.S. 1314, 1318 (1974) (Marshall, J., sitting as Circuit Justice) (“In my view . . . the Court [in Laird] was merely distinguishing earlier cases, not setting out a rule for determining whether an action is justiciable or not.”); ACLU, 493 F.3d at 693 n.3 (Gibbons, J., concurring) (“The language in Laird about regulation, proscription, and compulsion to me seems merely descriptive of the facts in prior cases in which the Supreme Court had found standing.”); but see ACLU, 493 F.3d at 661 (Batchelder, J.) (“[T]o allege a sufficient injury under the First Amendment, a plaintiff must establish that he or she is regulated, constrained, or compelled directly by the government’s actions . . . .”).
It is unnecessary to decide whether an argument for standing based on a chill of expressive activity should be limited to cases in which the plaintiff is complaining about a statute or regulation that is “regulatory, proscriptive, or compulsory in nature” or whether a plaintiff can allege such a chill based on a statute or regulation to which the plaintiff is otherwise subject. The plaintiffs in this case have failed to show that they are subject to the statute other than by
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speculation and conjecture, which is insufficient for standing. The plaintiffs in this case have made no showing that they are subject to the statute they seek to challenge, and therefore have made no showing that they face a danger of being harmed as a result of the statute. In the standing context the indirect harm of a chilling effect on speech may only be asserted in conjunction with a danger of direct harm from the challenged statute, because that danger is the source of the chill. See Laird, 408 U.S. at 12-13 (“[G]overnmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights. At the same time, however . . . to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action.”) (internal quotation marks and ellipsis omitted). As the Supreme Court explained: “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of future harm; the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.” Id. at 13-14 (internal quotation marks omitted).
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A plaintiff’s claim that a Government policy chills the plaintiff’s expressive activity is not an independent basis to challenge the policy. The alleged chill must be grounded in a threat of harm from the policy to which the plaintiff can reasonably argue he is subject; otherwise the chill is plainly subjective. Cf. Davis, 578 F.2d at 463 (chilling effect grounded in threat of eviction). A chilling effect can only be a product of a threat of direct harm, not a “substitute” for such a threat. Laird, 408 U.S. at 14.
The plaintiffs argue that the chilling effect the FAA has had on their speech cannot be considered subjective because they have incurred real, objective costs to avoid surveillance. Embedded in that argument is a misunderstanding of what was meant in Laird by the term “subjective.” In Laird the Supreme Court found that a plaintiff cannot establish standing by “alleg[ing] that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity . . . .” Id. at 10. What made the chilling effect subjective in Laird was the plaintiffs’ failure to show that they were subject to the challenged policy and faced a threat of harm from it. The plaintiffs could only show that the surveillance policy existed. The plaintiffs’ failure to substantiate the alleged chill with
54

proof that they really were subject to the information gathering policy made their alleged chill “subjective.” See Ozonoff v. Berzak, 744 F.2d 224, 229 (1st Cir. 1984) (Breyer, J.) (interpreting phrase “without more” in Laird to mean that “[t]he plaintiffs in Laird did not claim that the information gathering activities were directed against them specifically or that the gathered data could be directly used against them in any foreseeable way”). All of the plaintiffs’ alleged “objective” expenditures are insufficient to establish standing because they all arise from the plaintiffs’ choices to incur expenditures and costs that are not based on a sufficient showing that the statute in question was directed at them.
The Court of Appeals for the District of Columbia Circuit relied upon Laird in rejecting the allegation of a chilling effect as a basis for standing in United Presbyterian. The United Presbyterian Court denied standing to certain political and religious organizations to challenge an Executive Order that provided a framework for agencies within the intelligence community to seek and obtain approval from the Attorney General for certain kinds of surveillance. One of the bases for standing that was proffered by the plaintiffs and rejected by the Court was the assertion that their expressive activities were chilled by the fear that their communications would be
55

surveilled under the Executive Order. See United Presbyterian, 738 F.2d at 1378. In rejecting this basis for standing, the Court explained that “[a]ll of the Supreme Court cases employing the concept of the ‘chilling effect’ involve situations in which the plaintiff has unquestionably suffered some concrete harm (past or immediately threatened) apart from the ‘chill’ itself.” Id. In United Presbyterian the plaintiffs could not point to any such concrete harm because they could not show that “any specific action [was] threatened or even contemplated against them” with respect to the Executive Order. Id. at 1380.
The same analysis applies in this case. The plaintiffs have not shown that any specific action is threatened or contemplated against them because they have not shown that they are subject to the FAA. Therefore they have failed to allege a concrete harm “apart from” the chilling effect on their international communications, and the chilling effect is their subjective fear of being surveilled which is insufficient in the absence of evidence that they are subject to surveillance under the statute. Cf. ACLU, 493 F.3d at 688 (Gibbons, J., concurring) (rejecting assertion of standing based on chilling effect together with assertion of standing based on “wellfounded fear” of surveillance because “[t]he disposition of all of the plaintiffs’ claims depends upon the single fact that the
56

plaintiffs have failed to provide evidence that they are personally subject to the [challenged surveillance program].”).
The plaintiffs cite a number of cases allowing challenges to statutes or policies based on the chilling effect such statutes or policies had on a plaintiff’s expressive conduct. But in each of those cases, the plaintiff was subject to the challenged policy and faced potential harm from the enforcement of the policy. In Meese v. Keene, 481 U.S. 465, 467 (1987), the plaintiff alleged that he was chilled from exhibiting three films because under the challenged statute they would be labeled “political propaganda,” thereby injuring his reputation. Crucially, there was no question in Meese that the statute applied to the films the plaintiff wished to exhibit. See Meese, 481 U.S. at 467 n.1. That fact distinguishes Meese from this case. In holding that the plaintiff had standing in Meese, the Supreme Court emphasized that the plaintiff had shown that he faced a threat of harm from the statute if he chose to exhibit the films. See id. at 473 (“We find, however, that [the plaintiff] has alleged and demonstrated more than a ‘subjective chill’; he establishes that the term ‘political propaganda’ threatens to cause him cognizable injury.”). The Court explained that under Laird, if the plaintiff could not show that the label of “political propaganda” would be harmful to him, he
57

would not have standing to challenge the statute. See id. The plaintiff plainly could not have shown that the label would be harmful to him without showing that his films would be subject to the label. The finding that the plaintiff’s films were subject to the challenged statute was a predicate to the finding of standing in Meese for which there is no corollary in this case.
The plaintiffs fare no better in their reliance on Ozonoff. In Ozonoff, the Court of Appeals for the First Circuit found standing to challenge an Executive Order based on the chilling effect it would exert on the plaintiff’s expressive activity. See Ozonoff, 744 F.2d at 228. The Executive Order provided for a loyalty check, conducted by the Executive Branch, of persons who applied to work for the World Health Organization (the “WHO”). See id. at 225. The plaintiff in Ozonoff “would like to work” for the WHO, and thus there was no question that he was subject to the policy of loyalty checks and the potential harm of being denied a job with the WHO on account of being found disloyal if the policy were enforced. Id. The Court found standing based on the plaintiff’s assertion that he planned to apply for a job with the WHO and the challenged policy chilled his expressive conduct by discouraging activity that might be considered disloyal. See id. at 228-29. The Court explained
58

that the relevant inquiry was “whether the Order reasonably leads [the plaintiff] to believe he must conform his conduct to its standards.” Id. at 229-30. In distinguishing the case from Laird, the Court made clear that the reasonableness of that belief depended on the plaintiff being subject to the challenged policy: “The plaintiffs in Laird did not claim that the information gathering activities were directed against them specifically or that the gathered data could be directly used against them in any foreseeable way.” Id. at 229 (emphasis in original).
The plaintiffs in this case have not shown that the challenged statute is directed against them. The chilling effect in Ozonoff was the result of the plaintiff’s fear of harm from the enforcement of a policy to which he was subject. Because that much has not been shown in this case, the alleged chill of the plaintiffs’ speech in this case is not analogous to the chill of the plaintiff’s speech in Ozonoff. Cf. also Socialist Workers Party, 419 U.S. at 1315 (Marshall, J., sitting as Circuit Justice) (granting standing to challenge prospective surveillance of convention where plaintiffs “apparently learned that the FBI planned to monitor the . . . convention”).
The plaintiffs claim to find support for their assertion of standing based on the chilling of their speech in Friends of the
59

Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000). In Laidlaw, the Supreme Court found that environmental groups whose members, among other things, wished to use and enjoy a river into which the defendant was dumping pollutants, had standing to sue the defendant.15 See Laidlaw, 528 U.S. at 181-82. The Court found that the plaintiffs had demonstrated injury in fact based on the evidence that members of the plaintiff environmental groups were deterred from using the river by the defendant’s pollution. See id. at 183. The plaintiffs suggest that their own reluctance to engage in international communications is analogous to the reluctance of the Laidlaw plaintiffs to use the river. They extrapolate from that analogy that they have standing to challenge the FAA.
The plaintiffs’ reliance on Laidlaw is plainly misplaced. Laidlaw did not concern an alleged chill of First Amendment activity, making any comparison between the plaintiffs’ second purported basis for standing in this case and the plaintiffs’ basis for standing in Laidlaw strained at best. In any event, Laidlaw does not help the plaintiffs. In Laidlaw the members of the plaintiff organizations had allegedly ceased to use the river because of the concrete harm caused by the defendant’s

15

The plaintiffs in Laidlaw also included a person whose property value

was allegedly diminished by the pollution of the river and another who would

like to purchase a home near the river but did not intend to do so because of

the pollution. See id. at 182.

60

discharge of pollutants into the river. The discharge of pollutants was already occurring and there was no question that the plaintiffs were affected by the discharge because they ceased to use the river as a result of the defendant’s activity that allegedly harmed the river in which they had an environmental interest. Cf. ACLU, 493 F.3d at 689 (Gibbons, J., concurring) (“[I]n Laidlaw, the plaintiff’s [sic] fear of harm from the defendant’s undisputed conduct – conduct that would also undisputably affect plaintiffs personally if they undertook their desired activities – was sufficient to support standing.”) (emphasis in original)).16 In this case, the plaintiffs’ reluctance to engage in their desired speech is self-imposed because their fear of surveillance under the FAA is an abstract and hypothetical one, for all of the reasons explained above. Thus the reasoning behind the finding of standing in Laidlaw does not support the plaintiffs’ standing argument in this case.
The plaintiffs’ reliance on United States v. SCRAP, 412 U.S. 669 (1973), fares no better. Like Laidlaw, SCRAP did not involve an alleged chill of First Amendment activity. Indeed, the analysis of standing in SCRAP did not concern any sort of deterrence or discouragement of the plaintiffs’ behavior.

16

Judge Gibbons explained: “I read Laidlaw to require that plaintiffs

demonstrate that they (1) are in fact subject to the defendant’s conduct, in

the past or future, and (2) have at least a reasonable fear of harm from that

conduct.” ACLU, 493 F.3d at 689 (Gibbons, J., concurring).

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SCRAP concerned a challenge by environmental groups, among others, to a decision by the Interstate Commerce Commission (the “Commission”) allowing railroads to collect a 2.5% percent surcharge on freight rates. SCRAP, 412 U.S. at 678. The plaintiff groups argued that the surcharge would harm them by making the use of recycled goods more expensive, thereby impacting forests and other natural environments that members of the plaintiff groups used and intended to use. See id. at 68485. The Court acknowledged skepticism with respect to whether the plaintiffs would be able to prove that the surcharge would harm the areas of the environment in which the plaintiffs had an interest. See id. at 688 (referring to chain of causation as “attenuated”). Nevertheless, the Court found standing because the plaintiffs’ allegations, “if proved, would place them squarely among those persons injured in fact by the Commission’s action[.]” Id. at 690. The standing issue in SCRAP arose on a motion to dismiss based on the pleadings, and therefore the Court’s doubts as to whether the plaintiffs would be able to prove that the surcharge would cause them harm did not bear on the standing analysis. See id. at 683-84.
It is difficult to understand how the plaintiffs can find any analogy between the standing analysis in SCRAP and their effort to allege standing in this case. In SCRAP, the conduct
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challenged by the plaintiffs was the Commission’s authorization of the railroads to collect a surcharge that the plaintiffs alleged would injure them. The collection of the surcharge had already been authorized and the plaintiffs alleged facts that, if true, would “place them squarely among those persons injured” by the surcharge. The plaintiffs’ fear of surveillance under the FAA in this case bears no relation to the plaintiffs’ fear of harm from the surcharge in SCRAP. The plaintiffs in this case have neither alleged nor shown that surveillance encompassing their communications has been authorized or even that such authorization has been sought by the Government. Neither in SCRAP nor in any case cited by the plaintiffs has any court found that a plaintiff had standing to bring a lawsuit in circumstances remotely similar to these.
For all of the reasons explained above, the plaintiffs’ second purported basis for standing cannot survive the failure of the first. Therefore the costs incurred by the plaintiffs in seeking to protect their international communications from surveillance under the FAA do not constitute a basis for standing for the plaintiffs’ constitutional challenge to that statute.
63

 
 Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 1 of 19

U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:08−cv−06259−JGK

CLOSED, ECF

Amnesty International USA et al v. McConnell et al Assigned to: Judge John G. Koeltl Related Case: 1:08−cv−06264−JGK
Case in other court: USCA 2nd Circuit, 09−04112−cv Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 07/10/2008 Date Terminated: 08/01/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Amnesty International USA

represented by Arthur Nelson Eisenberg New York Civil Liberties Union 125 Broad Street 19th Floor New York, NY 10004 (212) 607−3300 Fax: (212) 607−3318 Email: arteisenberg@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn New York Civil Liberties Union 125 Broad Street 19th Floor New York, NY 10004 (212) 607−3300 Fax: (212) 344−3318 Email: cdunn@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 549−7814 Fax: (212) 549−2654 Email: jjaffer@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2588 Fax: (212) 549−2654 Email: dtully@aclu.org TERMINATED: 08/28/2010 LEAD ATTORNEY

Melissa Goodman American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 2 of 19

New York, NY 10004 (212)549−2622 Fax: (212)549−2629 Email: mgoodman@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo American Civil Liberties Union, Women's Rights Proj 125 Broad Street New York, NY 10004 (212) 549−2500 x2517 Fax: (2120 549−2654 Email: aabdo@aclu.org ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7849 Fax: (212) 549−2654 Email: lschwartztol@aclu.org TERMINATED: 03/24/2011

Plaintiff Global Fund for Women

represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol (See above for address) TERMINATED: 03/24/2011

Plaintiff Global Rights

represented by

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 3 of 19

Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol (See above for address) TERMINATED: 03/24/2011

Plaintiff Human Rights Watch

represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully (See above for address) TERMINATED: 08/28/2010 LEAD ATTORNEY

Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 4 of 19

(See above for address) TERMINATED: 03/24/2011

Plaintiff
International Criminal Defence Attorneys Association

represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol (See above for address) TERMINATED: 03/24/2011

Plaintiff
The Nation Magazine TERMINATED: 08/28/2010

represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully (See above for address) TERMINATED: 08/28/2010 LEAD ATTORNEY

Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 5 of 19

(See above for address) ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol (See above for address) TERMINATED: 03/24/2011

Plaintiff Pen American Center

represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully (See above for address) TERMINATED: 08/28/2010 LEAD ATTORNEY

Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol (See above for address) TERMINATED: 03/24/2011

Plaintiff Service Employees International Union

represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully (See above for address) TERMINATED: 08/28/2011 LEAD ATTORNEY

Melissa Goodman (See above for address)

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 6 of 19

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol (See above for address) TERMINATED: 03/24/2011

Plaintiff Washington Office on Latin America

represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol (See above for address) TERMINATED: 03/24/2011

Plaintiff Daniel N. Arshack

represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully (See above for address) TERMINATED: 08/28/2010

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 7 of 19

LEAD ATTORNEY

Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol (See above for address) TERMINATED: 03/24/2011

Plaintiff David Nevin

represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lori Danielle Tully (See above for address) TERMINATED: 08/28/2010 LEAD ATTORNEY

Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol (See above for address) TERMINATED: 03/24/2011

Plaintiff Scott McKay

represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 8 of 19

Plaintiff Sylvia Royce

Lori Danielle Tully (See above for address) TERMINATED: 08/28/2011 LEAD ATTORNEY
Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED
Laurence Michael Schwartztol (See above for address) TERMINATED: 03/24/2011
represented by Arthur Nelson Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori Danielle Tully (See above for address) TERMINATED: 08/28/2010 LEAD ATTORNEY
Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED
Laurence Michael Schwartztol (See above for address) TERMINATED: 03/24/2011

V.
Defendant
John M. McConnell in his official capacity as Director of National Intelligence

represented by Serrin Andrew Turner U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212)−637−2701 Fax: (212)−637−2686

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 9 of 19

Email: serrin.turner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lt. Gen. Keith B. Alexander in his official capacity as Director of the National Security Agency

represented by Serrin Andrew Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lt. Gen. Keith B. Alexander in his official capacity as Chief of the Central Security Service

represented by Serrin Andrew Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael B. Mukasey in his offical capacity as Attorney General of the United States

represented by Serrin Andrew Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ADR Provider The Rutherford Institute

represented by Laura Klein Abel Brennan Center for Justice 161 Avenue of the Americas, 12th fl. New York, NY 10013 (212)−988−6737 Fax: (212)−995−4550 Email: laura.abel@nyu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

ADR Provider Duane L. Loft

Amicus
Reporters Committee for Freedom of the Press

Amicus Brennan Center for Justice

represented by Laura Klein Abel (See above for address) ATTORNEY TO BE NOTICED

Amicus The Rutherford Institute

represented by Laura Klein Abel (See above for address) ATTORNEY TO BE NOTICED

Amicus
Duane L. Loft The New York City Bar Association

Amicus The New York City Bar Association

Date Filed

# Docket Text

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 10 of 19

07/10/2008
07/10/2008 07/10/2008 07/10/2008 07/10/2008 08/12/2008
09/04/2008 09/10/2008 09/12/2008 09/12/2008

1 COMPLAINT against John M. McConnell, Keith B. Alexander(in his official capacity as Director of the National Security Agency), Keith B. Alexander(in his official capacity as Chief of the Central Security Service), Michael B. Mukasey. (Filing Fee $ 350.00, Receipt Number 656420)Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America.(mbe) (Entered: 07/14/2008)
SUMMONS ISSUED as to John M. McConnell, Keith B. Alexander(in his official capacity as Director of the National Security Agency), Keith B. Alexander(in his official capacity as Chief of the Central Security Service), Michael B. Mukasey. (mbe) (Entered: 07/14/2008)
Magistrate Judge Henry B. Pitman is so designated. (mbe) (Entered: 07/14/2008)
Case Designated ECF. (mbe) (Entered: 07/14/2008)
2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America.(mbe) (Entered: 07/14/2008)
3 ENDORSED LETTER addressed to Judge John G. Koeltl from Beth E. Goldman dated 8/1/08 re: The parties conferred to discuss a proposed briefing schedule for dispositive motions. Counsel's joint proposal is as follows: 9/12/08− Plaintiffs' motion for summary judgment; 10/10/08− Defendants' opposition to plaintiffs' motion and cross−motion to dismiss, or in the alternative, for summary judgment; 11/7/08− Plaintiffs' reply on motion for summary judgment and opposition to defendants' motion; 12/5/08− Defendants' reply; and the parties also agreed that defendants' time to answer or otherwise respond to the complaint is extended to 10/10/08. ENDORSEMENT: APPLICATION GRANTED. (Signed by Judge John G. Koeltl on 8/7/08) (tro) (Entered: 08/12/2008)
4 MOTION for Leave to File Excess Pages. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America.(Jaffer, Jameel) (Entered: 09/04/2008)
5 MEMO ENDORSEMENT granting 4 Motion for Leave to File Excess Pages. ENDORSEMENT: APPLICATION GRANTED. (Signed by Judge John G. Koeltl on 9/8/08) (tro) (Entered: 09/10/2008)
6 MOTION for Summary Judgment. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America.(Jaffer, Jameel) (Entered: 09/12/2008)
7 MEMORANDUM OF LAW in Support re: 6 MOTION for Summary Judgment.. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Attachments: # 1 Affidavit Declaration of Jameel Jaffer, # 2 Affidavit Declaration of Naomi Klein part 1, # 3 Affidavit Declaration of Naomi Klein part 2, # 4 Affidavit Declaration of Joanne Mariner, # 5 Affidavit Declaration of Sylvia Royce, # 6 Affidavit Declaration of John Walsh)(Jaffer, Jameel) (Entered: 09/12/2008)

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 11 of 19

09/12/2008 10/07/2008 10/28/2008 10/28/2008 10/28/2008 11/20/2008 12/04/2008 12/04/2008 12/08/2008 12/08/2008

8 RULE 56.1 STATEMENT. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Jaffer, Jameel) (Entered: 09/12/2008)
9 ORDER: The briefing schedule entered by memo−endorsed letter on August 12, 2008, is hereby modified to conform to the revised schedule below:10/28/2008 − Defendants' opposition to plaintiffs' motion and cross−motion to dismiss, or in the alternative, for summary judgment; 12/12/2008 − Plaintiffs' reply on motion for summary judgment and opposition to defendants' cross−motion; 12/19/2008 − Briefs of amici curiae; and 1/9/2009 Defendants' cross−reply. SO ORDERED. (Signed by Judge John G. Koeltl on 10/7/2008) (tve) (Entered: 10/07/2008)
10 MEMORANDUM OF LAW in Opposition re: 6 MOTION for Summary Judgment. and in Support of Defendants' Cross−Motion for Summary Judgment. Document filed by John M. McConnell, Keith B. Alexander(in his official capacity as Director of the National Security Agency), Keith B. Alexander(in his official capacity as Chief of the Central Security Service), Michael B. Mukasey. (Turner, Serrin) (Entered: 10/28/2008)
11 RULE 56.1 STATEMENT. Document filed by John M. McConnell, Keith B. Alexander(in his official capacity as Director of the National Security Agency), Keith B. Alexander(in his official capacity as Chief of the Central Security Service), Michael B. Mukasey. (Turner, Serrin) (Entered: 10/28/2008)
12 MOTION for Summary Judgment. Document filed by John M. McConnell, Keith B. Alexander(in his official capacity as Director of the National Security Agency), Keith B. Alexander(in his official capacity as Chief of the Central Security Service), Michael B. Mukasey.(Turner, Serrin) (Entered: 10/28/2008)
13 NOTICE OF APPEARANCE by Laurence Michael Schwartztol on behalf of Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America (Schwartztol, Laurence) (Entered: 11/20/2008)
14 MOTION for Leave to File Excess Pages. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America.(Goodman, Melissa) (Entered: 12/04/2008)
15 MOTION for Leave to File Excess Pages. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America.(Goodman, Melissa) (Entered: 12/04/2008)
16 ENDORSED LETTER addressed to Judge John E. Sprizzo from Lori Danielle Tully dated 12/4/2008 re: Plaintiffs respectfully request that the clerk remove Docket Item No. 14 (Plaintiffs' Unopposed Motion for Leave to Exceed Page Limitations Contained in Rule 2(e)) from the docket. ENDORSEMENT: Docket No. 14 can be removed. So ordered. (Signed by Judge John G. Koeltl on 12/5/2008) (tve) Modified on 1/28/2009 (tve). (Entered: 12/08/2008)
17 MEMO ENDORSEMENT on re: 14 MOTION for Leave to File Excess Pages. filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 15 MOTION for Leave to File Excess Pages. filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 12 of 19

12/12/2008
12/12/2008 12/12/2008 12/12/2008
12/15/2008 12/15/2008 12/15/2008

for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights. The brief is opposition may not exceed thirty−five pages. The reply brief may not exceed 20 pages. So ordered. (Signed by Judge John G. Koeltl on 12/5/2008) (jmi) (Entered: 12/09/2008)
18 FILING ERROR − DEFICIENT DOCKET ENTRY − REPLY MEMORANDUM OF LAW in Support re: 6 MOTION for Summary Judgment. And Opposition to Defendants' Cross−Motion for Summary Judgment. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Attachments: # 1 Affidavit Declaration of Christopher Hedges, # 2 Affidavit Declaration of Scott McKay, # 3 Affidavit Declaration of Professor Stephen Gillers, # 4 Affidavit Declaration of Steven M. Bellovin)(Jaffer, Jameel) Modified on 12/15/2008 (db). (Entered: 12/12/2008)
19 RULE 56.1 STATEMENT. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Jaffer, Jameel) (Entered: 12/12/2008)
20 ENDORSED LETTER addressed to Judge John G. Koeltl from Michael Steger dated 12/10/08 re: Request that the Reporters Committee For Freedom of the Press brief be filed by 12/19/08. ENDORSEMENT: Application granted.( Brief due by 12/19/2008.) (Signed by Judge John G. Koeltl on 12/11/08) (cd) (Entered: 12/12/2008)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Jameel Jaffer to RE−FILE Document 18 Reply Memorandum of Law in Support of Motion. ERROR(S): Supporting Document must be filed separately (i.e. The four (4) Declarations in Support of the Reply Memorandum must be filed individually. ***REMINDER*** − First Re−File the Reply Memorandum in Support of the Motion for Summary Judgment (found under the Event Type − Replies, Opposition and Supporting Documents), then file and link the Supporting Declarations to the Reply Memorandum using the event Declaration in Support (non−motion) found under the Event Type − Other Answers. (db) (Entered: 12/15/2008)
21 REPLY MEMORANDUM OF LAW in Support re: 6 MOTION for Summary Judgment. And Opposition to Defendants' Cross−Motion for Summary Judgment. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Jaffer, Jameel) (Entered: 12/15/2008)
22 DECLARATION of Christopher L. Hedges in Support re: 21 Reply Memorandum of Law in Support of Motion,. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Jaffer, Jameel) (Entered: 12/15/2008)
23 DECLARATION of Scott McKay in Support re: 21 Reply Memorandum of Law in Support of Motion,. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Jaffer, Jameel) (Entered: 12/15/2008)

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 13 of 19

12/15/2008
12/15/2008
12/19/2008 12/19/2008 12/19/2008 12/19/2008
12/19/2008
12/23/2008 12/23/2008 12/29/2008 12/29/2008 01/16/2009

24 DECLARATION of Professor Stephen Gillers in Support re: 21 Reply Memorandum of Law in Support of Motion,. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Jaffer, Jameel) (Entered: 12/15/2008)
25 DECLARATION of Steven Bellovin in Support re: 21 Reply Memorandum of Law in Support of Motion,. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Jaffer, Jameel) (Entered: 12/15/2008)
26 BRIEF re: 6 MOTION for Summary Judgment. Amicus Brief in Support of Motion for Summary Judgment. Document filed by Reporters Committee for Freedom of the Press.(Steger, Michael) (Entered: 12/19/2008)
27 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Reporters Committee for Freedom of the Press.(Steger, Michael) (Entered: 12/19/2008)
28 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION to File Amicus Brief in Support of Plaintiffs' Motion for Summary Judgment &in Opposition to Defendants' Cross−Motion for Summary Judgment. Document filed by Brennan Center for Justice, The Rutherford Institute. (Attachments: # 1 Supplement Brief Amicus Curiae)(Abel, Laura) Modified on 12/22/2008 (db). (Entered: 12/19/2008)
29 BRIEF re: 6 MOTION for Summary Judgment. ("BRIEF AMICUS CURIAE OF THE NEW YORK CITY BAR ASSOCIATION IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANTS CROSS−MOTION FOR SUMMARY JUDGMENT"). Document filed by Duane L. Loft, Duane L. Loft, The New York City Bar Association.(Loft, Duane) (Entered: 12/19/2008)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Laura Klein Abel to RE−FILE Document 28 MOTION to File Amicus Brief in Support of Plaintiffs' Motion for Summary Judgment &in Opposition to Defendants' Cross−Motion for Summary Judgment. ERROR(S): Supporting Document must be filed separately (i.e. Memorandum of Law in Support of Motion to be filed individually. ***REMINDER*** − Re−File Motion first, then file and link any supporting documents. (db) (Entered: 12/22/2008)
30 FIRST MOTION to File Amicus Brief. Document filed by Brennan Center for Justice, The Rutherford Institute.(Abel, Laura) (Entered: 12/23/2008)
31 FIRST MEMORANDUM OF LAW in Support re: 30 FIRST MOTION to File Amicus Brief.. Document filed by Brennan Center for Justice, The Rutherford Institute. (Abel, Laura) (Entered: 12/23/2008)
32 ORDER that defendants' cross−reply shall be due on 1/16/09, and shall be limited to 25 pages. ( Reply due by 1/16/2009.) (Signed by Judge John G. Koeltl on 12/23/08) (cd) (Entered: 12/29/2008)
33 ORDER, the briefing schedule for the parties' summary judgment motions in this matter is hereby revised as follows: Defendants' cross−reply shall be due on January 16,2009, and shall be limited to 25 pages. (Signed by Judge Jed S. Rakoff, Part I on 12/29/08) (pl) Modified on 12/29/2008 (pl). (Entered: 12/29/2008)
34 CROSS REPLY MEMORANDUM OF LAW in Support re: 12 MOTION for Summary Judgment.. Document filed by John M. McConnell, Keith B. Alexander(in his official capacity as Director of the National Security Agency), Keith B. Alexander(in his official capacity as Chief of the Central Security Service), Michael B. Mukasey. (Turner, Serrin) (Entered: 01/16/2009)

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 14 of 19

01/22/2009 01/23/2009 02/04/2009 02/04/2009
02/04/2009 02/05/2009 02/05/2009 03/09/2009 03/11/2009

35 ENDORSED LETTER addressed to Judge John G. Koeltl from Serrin Turner dated 1/21/2009 re: Counsel writes presently to request leave to file a corrected version of the Government's cross−reply brief, which was originally filed last Friday, January 16, 2009. ENDORSEMENT: Application granted. So Ordered. (Signed by Judge John G. Koeltl on 1/22/2009) (jfe) (Entered: 01/22/2009)
36 AMENDED REPLY MEMORANDUM OF LAW in Support re: 12 MOTION for Summary Judgment.. Document filed by John M. McConnell, Keith B. Alexander(in his official capacity as Director of the National Security Agency), Keith B. Alexander(in his official capacity as Chief of the Central Security Service), Michael B. Mukasey. (Turner, Serrin) (Entered: 01/23/2009)
37 MOTION for Disclosure of Information Concerning Aug. 22, 2009 Decision of the FISA Court of Review. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America.(Jaffer, Jameel) (Entered: 02/04/2009)
38 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Support re: 37 MOTION for Disclosure of Information Concerning Aug. 22, 2009 Decision of the FISA Court of Review. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Attachments: # 1 Affidavit Declaration of Laurence M. Schwartztol)(Jaffer, Jameel) Modified on 2/5/2009 (db). (Entered: 02/04/2009)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Jameel Jaffer to RE−FILE Document 38 Memorandum of Law in Support of Motion. ERROR(S): Supporting Document must be filed separately (i.e. Declaration in Support of Motion to be filed individually). ***REMINDER*** − First Re−File Memorandum in Law in Support of Motion. (db) (Entered: 02/05/2009)
39 MEMORANDUM OF LAW in Support re: 37 MOTION for Disclosure of Information Concerning Aug. 22, 2009 Decision of the FISA Court of Review.. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Jaffer, Jameel) (Entered: 02/05/2009)
40 DECLARATION of Laurence M. Schwartztol in Support re: 37 MOTION for Disclosure of Information Concerning Aug. 22, 2009 Decision of the FISA Court of Review.. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Schwartztol, Laurence) (Entered: 02/05/2009)
41 NOTICE of Withdrawal. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. (Jaffer, Jameel) (Entered: 03/09/2009)
42 ENDORSED LETTER addressed to Judge John G. Koeltl from David S. Jones dated 3/9/09 re: Counsel for defendants in this action write to report additional information pertaining to plaintiffs' pending "Motion for Disclosure," which sought information relating to certain proceedings in the FISA Court of Review. ENDORSEMENT: This letter should be docketed. (Signed by Judge John G. Koeltl on 3/10/09) (tro) (Entered: 03/11/2009)

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 15 of 19

06/10/2009 06/30/2009 07/02/2009
07/08/2009 07/09/2009 08/12/2009 08/20/2009
08/20/2009 08/27/2009 08/28/2009
10/01/2009

43 ORDER, oral argument on the parties cross−motions for summary judgment set for 7/10/09 at 3:30 pm. Set Deadlines/Hearing as to 12 MOTION for Summary Judgment; 6 MOTION for Summary Judgment. ( Motion Hearing set for 7/10/2009 at 03:30 PM before Judge John G. Koeltl.) (Signed by Judge John G. Koeltl on 6/9/09) (cd) (Entered: 06/10/2009)
44 ORDER: Oral argument on the parties' cross−motions for summary judgment is scheduled for 7/10/09 at 3:30 p.m. The parties should ensure that all amici are given notice of oral argument. (Signed by Judge John G. Koeltl on 6/29/09) (tro) (Entered: 06/30/2009)
45 ORDER, oral argument on this motion, which was previously scheduled for 7/10/09, is now scheduled for 7/17/09 at 3:00 pm. Plaintiff's counsel is directed to ensure that defense counsel and all amici are notified accordingly. Set Deadlines/Hearing as to 12 MOTION for Summary Judgment., 6 MOTION for Summary Judgment. ( Motion Hearing reset for 7/17/2009 at 03:00 PM before Judge John G. Koeltl.) (Signed by Judge John G. Koeltl on 7/1/09) (cd) (Entered: 07/02/2009)
46 ORDER: Oral argument on the pending motions, previously set for 7/17/09, is now scheduled for 7/22/09 at 10:00 AM. The parties shall ensure that all amici are notified accordingly. (Signed by Judge John G. Koeltl on 7/7/09) (tro) (Entered: 07/08/2009)
47 MOTION for Lori Danielle Tully to Withdraw as Attorney. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America.(Jaffer, Jameel) (Entered: 07/09/2009)
48 TRANSCRIPT of proceedings held on 7/22/09 before Judge John G. Koeltl. (pl) (Entered: 08/12/2009)
49 OPINION AND ORDER:#97936 For all of the foregoing reasons, the plaintiffs lack Article III standing to bring this constitutional challenge to the FAA. The plaintiffs' motion for summary judgment is denied. The Government's motion for summary judgment is granted. The Clerk is directed to close Docket Nos. 6 and 12 and to enter judgment dismissing the complaint and closing this case. (Signed by Judge John G. Koeltl on 8/20/2009) (jpo) Modified on 8/21/2009 (jab). (Entered: 08/20/2009)
Transmission to Judgments and Orders Clerk. Transmitted re: 49 Opinion and Order, to the Judgments and Orders Clerk. (jpo) (Entered: 08/27/2009)
50 CLERK'S JUDGMENT That for the reasons stated in the Court's Opinion and Order dated August 20, 2009, plaintiffs' motion for summary judgment is denied; the Government's motion for summary judgment is granted; and the complaint is dismissed; accordingly, the case is closed. (Signed by J. Michael McMahon, clerk on 8/27/09) (Attachments: # 1 notice of right to appeal)(ml) (Entered: 08/27/2009)
51 ORDER: The Clerk is directed to close Docket Nos. 14, 15, 30, and 47 in this case. The motions reflected in those docket entries are granted and in any event are moot. The Clerk is directed to close Docket No. 37. The motion reflected in that docket entry was withdrawn. (See Docket No. 41.) Pursuant to the August 20, 2009 Opinion and Order (Docket No. 49), the Clerk is directed to enter judgment dismissing the Complaint and closing this case. (Signed by Judge John G. Koeltl on 8/22/2009) (jfe) (Entered: 08/28/2009)
52 NOTICE OF APPEAL from 50 Clerk's Judgment, 49 Memorandum &Opinion,. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Crime Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America. Filing fee $ 455.00, receipt number E 701889. (nd) (Entered: 10/02/2009)

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 16 of 19

10/02/2009 10/02/2009 10/02/2009

Transmission of Notice of Appeal to the District Judge re: 52 Notice of Appeal,. (nd) (Entered: 10/02/2009)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 52 Notice of Appeal,. (nd) (Entered: 10/02/2009)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 30 FIRST MOTION to File Amicus Brief. filed by Brennan Center for Justice, The Rutherford Institute, 5 Order on Motion for Leave to File Excess Pages, 29 Brief, filed by The New York City Bar Association, Duane L. Loft, 1 Complaint,, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 16 Endorsed Letter, 50 Clerk's Judgment, 44 Order, Set Deadlines/Hearings, 27 Rule 7.1 Corporate Disclosure Statement filed by Reporters Committee for Freedom of the Press, 17 Memo Endorsement,,, 41 Notice (Other), Notice (Other) filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 14 MOTION for Leave to File Excess Pages. filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 8 Rule 56.1 Statement, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 51 Order, 35 Endorsed Letter, 47 MOTION for Lori Danielle Tully to Withdraw as Attorney. filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 26 Brief filed by Reporters Committee for Freedom of the Press, 22 Declaration in Support, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 10 Memorandum of Law in Opposition to Motion, filed by Keith B. Alexander, Michael B. Mukasey, John M. McConnell, 43 Order, Set Motion and RRDeadlines/Hearings,, 7 Memorandum of Law in Support of Motion,, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 13 Notice of Appearance, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 2 Rule 7.1 Corporate Disclosure Statement, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 23 Declaration in Support, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 3 Endorsed Letter, Set Deadlines/Hearings,,,,,, 31 Memorandum of Law in Support of Motion filed by

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 17 of 19
Brennan Center for Justice, The Rutherford Institute, 20 Endorsed Letter, Set Deadlines/Hearings,, 15 MOTION for Leave to File Excess Pages. filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 19 Rule 56.1 Statement, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 52 Notice of Appeal, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 11 Rule 56.1 Statement, filed by Keith B. Alexander, Michael B. Mukasey, John M. McConnell, 39 Memorandum of Law in Support of Motion, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 34 Reply Memorandum of Law in Support of Motion, filed by Keith B. Alexander, Michael B. Mukasey, John M. McConnell, 46 Order, Set Deadlines/Hearings, 12 MOTION for Summary Judgment. filed by Keith B. Alexander, Michael B. Mukasey, John M. McConnell, 6 MOTION for Summary Judgment. filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 45 Order, Set Motion and RRDeadlines/Hearings,, 37 MOTION for Disclosure of Information Concerning Aug. 22, 2009 Decision of the FISA Court of Review. filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 49 Memorandum &Opinion, 33 Order, Set Scheduling Order Deadlines,, 24 Declaration in Support, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 25 Declaration in Support, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 42 Endorsed Letter, 32 Order, Set Deadlines/Hearings, 36 Reply Memorandum of Law in Support of Motion, filed by Keith B. Alexander, Michael B. Mukasey, John M. McConnell, 21 Reply Memorandum of Law in Support of Motion, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 40 Declaration in Support of Motion,, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 4 MOTION for Leave to File Excess Pages. filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights, 9 Order, Set Deadlines,,,, were transmitted to the U.S. Court of Appeals. (nd) (Entered: 10/02/2009)

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 18 of 19

10/19/2009 12/28/2009 01/07/2010 03/22/2011
03/22/2011 03/24/2011 03/29/2011 10/12/2011
10/12/2011 10/13/2011 10/13/2011

USCA Case Number 09−4112−cv from the USCA 2nd Circuit assigned to 52 Notice of Appeal, filed by Scott McKay, Pen American Center, The Nation Magazine, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, International Crime Defence Attorneys Association, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights. (tp) (Entered: 10/19/2009)
53 JOINT MOTION to Supplement Record. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America.(Jaffer, Jameel) (Entered: 12/28/2009)
54 MOTION for Laurence M. Schwartztol to Withdraw as Attorney. Document filed by Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, Washington Office on Latin America.(Schwartztol, Laurence) (Entered: 01/07/2010)
55 TRUE COPY ORDER of USCA as to 52 Notice of Appeal, filed by Scott McKay, Pen American Center, The Nation Magazine, International Criminal Defence Attorneys Association, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights USCA Case Number 09−4112−cv. Ordered, Adjudged and Decreed that the judgment of the District Court is VACATED and REMANDED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 03/21/2011. (Attachments: # 1 Part 2 of the opinion)(nd) (Entered: 03/22/2011)
Transmission of USCA Order to the District Judge re: 55 USCA Order,,. (nd) Modified on 3/22/2011 (nd). (Entered: 03/22/2011)
56 MEMO ENDORSEMENT on 54 Motion to Withdraw as Attorney. Attorney Laurence Michael Schwartztol terminated. ENDORSEMENT: Application granted. So Ordered.. (Signed by Judge John G. Koeltl on 3/24/2011) (jpo) (Entered: 03/24/2011)
57 ORDER: The parties' joint motion to supplement the record is granted. The Clerk is directed to close Document 53 as an open motion. (Signed by Judge John G. Koeltl on 3/29/2011) (jpo) (Entered: 03/29/2011)
58 MANDATE of USCA (Certified Copy) as to 52 Notice of Appeal, filed by Scott McKay, Pen American Center, The Nation Magazine, International Criminal Defence Attorneys Association, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights USCA Case Number 09−4112−cv. Ordered, Adjudged and Decreed that the judgment of the District Court is VACATED and the case is REMANDED to the District Court in accordance with the opinion of this Court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/12/2011. (Attachments: # 1 Opinion)(nd) (Entered: 10/12/2011)
Transmission of USCA Mandate/Order to the District Judge re: 58 USCA Mandate,,. (nd) (Entered: 10/12/2011)
59 NOTICE OF COURT CONFERENCE: You are directed to appear for a pretrial conference, to be held on Tuesday, November 1, 2011 in Courtroom 12B, at 4:30pm in front of the Honorable John G. Koeltl. All requests for adjournments must be made in writing to the Court. For any further information, please contact the Court at (212) 805−0107. By: Don Fletcher, Courtroom Case Manager on October 13, 2011. (djc) (Entered: 10/14/2011)
Set/Reset Hearings: Pretrial Conference set for 11/1/2011 at 04:30 PM in Courtroom 12B, 500 Pearl Street, New York, NY 10007 before Judge John G. Koeltl. (djc) (Entered: 10/14/2011)

Case: 1:08-cv-06259-JGK As of: 10/06/2013 08:04 PM EDT 19 of 19

10/28/2011 10/28/2011 12/05/2011 01/18/2012 02/07/2012 03/02/2012 06/15/2012 07/30/2013
08/01/2013

60 ENDORSED LETTER addressed to Judge John G. Koeltl from Serrin Turner dated 10/27/2011 re: request for a further adjournment of the status conference. ENDORSEMENT: The Status Conference is Adjourned to December 6, 2011, 4:30 p.m. w/out prejudice to a subsequent application. ( Pretrial Conference set for 12/6/2011 at 04:30 PM before Judge John G. Koeltl.) (Signed by Part I Judge Alvin K. Hellesrtein on 10/28/2011) (ama) (Entered: 10/28/2011)
Set Deadlines/Hearings: Status Conference set for 12/6/2011 at 04:30 PM before Judge John G. Koeltl. (ama) (Entered: 11/02/2011)
61 ENDORSED LETTER addressed to Judge John G. Koeltl from Serrin Turner dated 12/1/2011 re: The Government writes to request an adjournment of the status conference currently scheduled for 12/6/2011. ENDORSEMENT: Adjourned to Thursday, January 19, 2012 at 4:30 PM. (Status Conference set for 1/19/2012 at 04:30 PM before Judge John G. Koeltl.) (Signed by Judge John G. Koeltl on 12/5/2011) (ab) (Entered: 12/05/2011)
62 ENDORSED LETTER addressed to Judge John G. Koeltl from Serrin Turner dated 1/18/12 re: Counsel for the Government seeks an adjournment of the 1/19 conference until sometime after 2/21/12. ENDORSEMENT: Conference adjourned to 2/28/12 at 4:30 p.m. So ordered. ( Status Conference set for 2/28/2012 at 04:30 PM before Judge John G. Koeltl.) (Signed by Judge John G. Koeltl on 1/18/2012) (mro) (Entered: 01/18/2012)
63 NOTICE OF APPEARANCE by Alexander Abraham Abdo on behalf of Amnesty International USA, Daniel N. Arshack, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, Scott McKay, David Nevin, Pen American Center, Sylvia Royce, Service Employees International Union, The Nation Magazine, Washington Office on Latin America (Abdo, Alexander) (Entered: 02/07/2012)
64 ENDORSED LETTER: addressed to Judge John G. Koeltl from U.S. Department of Justice dated 2/24/2012 re: Counsel for defendant requests an adjournment of the status conference currently scheduled for February 28, 2012 to after June 1, 2012. ENDORSEMENT: Adjourned to Tuesday, June 19, 2012 at 4:30 p.m. ( Status Conference set for 6/19/2012 at 04:30 PM before Judge John G. Koeltl.) (Signed by Judge John G. Koeltl on 2/29/2012) (js) (Entered: 03/02/2012)
65 ENDORSED LETTER addressed to Judge John G. Koeltl' from SERRIN TURNER dated 6/15/2012 re: counsel for the Government seeks to adjourn the upcoming conference until the litigation of the case in the Supreme Court is resolved. The Government will apprise the Court promptly upon the conclusion of the Supreme Court litigation. ENDORSEMENT: Application Granted. (Signed by Judge John G. Koeltl on 6/18/2012) (pl) (Entered: 06/18/2012)
66 MANDATE of USCA (Certified Copy) as to 52 Notice of Appeal, filed by Scott McKay, Pen American Center, The Nation Magazine, International Criminal Defence Attorneys Association, Sylvia Royce, Global Fund for Women, Human Rights Watch, David Nevin, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, Amnesty International USA, Global Rights USCA Case Number 09−4112−cv. On March 21, 2011, we reversed the district court's August 27, 2009 judgment, which granted summary judgment to defendants and dismissed the case. On February 26, 2013, the Supreme Court reversed our judgment and remanded the case for further proceedings consistent with its opinion. In accordance with the instructions of the Supreme Court, we therefore now VACATE our prior judgment and AFFIRM the district court's August 27, 2009 judgment dismissing the complaint. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 7/30/2013. (nd) (Entered: 07/30/2013)
67 ORDER: Pursuant to the July 30, 2013 mandate of the United states Court of Appeals for the Second Circuit, the Clerk is directed to close this case. (Signed by Judge John G. Koeltl on 7/31/2013) (djc) (Entered: 08/02/2013)

 
 Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)

638 F.3d 118 United States Court of Appeals,
Second Circuit. AMNESTY INTERNATIONAL USA, Global Fund for Women, Global Rights, Human Rights Watch,
International Criminal Defence Attorneys Association, The Nation Magazine, PEN American
Center, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce,
Plaintiffs–Appellants, v.
James R. CLAPPER, Jr., in his official capacity as Director of National Intelligence,* Keith B.
Alexander, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service, Eric H. Holder, Jr., in his official capacity as Attorney General of the United
States, Defendants–Appellees.

*

Pursuant to Federal Rule of Appellate Procedure

43(c)(2), James R. Clapper, Jr., the Director of National

Intelligence is automatically substituted as a defendant

herein for his predecessor. The Clerk of Court is

directed to amend the caption to read as shown above.

Docket No. 09–4112–cv. | Argued: April 16, 2010. | Decided: March 21, 2011.

Synopsis Background: Attorneys, journalists, and labor, legal, media, and human rights organizations brought action facially challenging the constitutionality of amendment to Foreign Intelligence Surveillance Act (FISA) establishing new framework for applications for orders authorizing surveillance targeting non-United States persons located outside the United States to acquire foreign intelligence information. The United States District Court for the Southern District of New York, John G. Koeltl, J., 646 F.Supp.2d 633, granted summary judgment in favor of defendants, finding that plaintiffs lacked standing, and plaintiffs appealed.

[Holding:] The Court of Appeals, Gerard E. Lynch, Circuit Judge, held that plaintiffs had standing.

Vacated and remanded.
Attorneys and Law Firms
*120 Jameel Jaffer, American Civil Liberties Union Foundation, New York, N.Y. (Melissa Goodman and Laurence M. Schwartztol, American Civil Liberties Union Foundation, New York, NY; Christopher T. Dunn and Arthur N. Eisenburg, New York Civil Liberties Union Foundation, New York, NY; Charles S. Sims, Theodore K. Cheng, Matthew J. Morris, Proskauer Rose LLP, New York, NY, on the brief), for Plaintiff–Appellant.
Douglas N. Letter, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C. (Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C.; Daniel J. Lenerz, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C.; Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, on the brief), for Defendants–Appellees.
Barbara Moses, Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., New *121 York, NY; Emily Berman and Elizabeth Goitein, The Brennan Center for Justice, New York, NY; Sharon Bradford Franklin, The Constitution Project, Washington, D.C., for Amici Curiae The Brennan Center for Justice, The Center for Democracy & Technology, The Constitution Project, The Electronic Frontier Foundation, and The Rutherford Institute in support of Plaintiffs–Appellants.
Lucy A. Dalglish and Gregg P. Leslie, Counsel for The Reporters Committee for Freedom of the Press, Arlington, VA, for Amicus Curiae The Reporters Committee for Freedom of the Press in support of Plaintiffs–Appellants.
Duane L. Loft, Cravath, Swaine & Moore LLP, New York, NY; Peter T. Barbur, The New York City Bar Association, New York, NY, for Amicus Curiae The New York City Bar Association in support of Plaintiffs–Appellants.
Robert A. Atkins and William J. Taylor, Jr., Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Amici Curiae Law Professors Michelle Adams, Benjamin N. Cardozo School of Law, Yeshiva University; Baher Azmy, Seton Hall University School of Law; Fletcher N. Baldwin, Jr., Levin College of Law, University of Florida; Erwin Chemerinsky, University of California, Irvine,
1

Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)
School of Law; Norman Dorsen, New York University; David M. Driesen, Syracuse University College of Law; Eric M. Freedman, Hofstra Law School; Lynne Henderson, William S. Boyd School of Law, University of Nevada–Las Vegas; Seth F. Kreimer, University of Pennsylvania Law School; Alexander A. Reinert, Benjamin N. Cardozo School of Law, Yeshiva University; David Rudovsky, University of Pennsylvania Law School; Daniel J. Solove, George Washington University Law School in support of Plaintiffs–Appellants.
Before: CALABRESI, SACK, and LYNCH, Circuit Judges.
Opinion
GERARD E. LYNCH, Circuit Judge:
Attorneys, journalists, and labor, legal, media, and human rights organizations brought this action facially challenging the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), which was added to FISA by Section 101(a)(2) of the FISA Amendments Act of 2008 (the “FAA”), and codified at 50 U.S.C. § 1881a. Section 702 creates new procedures for authorizing government electronic surveillance targeting non-United States persons outside the United States for purposes of collecting foreign intelligence. The plaintiffs complain that the procedures violate the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers because they “allow[ ] the executive branch sweeping and virtually unregulated authority to monitor the international communications ... of law-abiding U.S. citizens and residents.”
The merits of the plaintiffs’ claims are not before us. The only issue presented by this appeal is whether the plaintiffs are legally in a position to assert these claims in a federal court, not whether the claims are to any degree valid. Their merit is an issue for another court on another day. The district court (Koeltl, J.) granted the government summary judgment because it found that the plaintiffs lacked standing. On appeal, the plaintiffs argue that they have standing because the FAA’s new procedures1 cause them to fear that their communications will be monitored, and thus force them to undertake costly and *122 burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs. Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that

injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing. We therefore reverse the district court’s judgment.

1

Throughout this opinion, references to the FAA’s new

procedures challenged by the plaintiffs refer to the

procedures set forth in Section 702.

BACKGROUND

I. Statutory Scheme at Issue In 1978, Congress enacted FISA to establish procedures under which federal officials could obtain authorization to conduct electronic surveillance for foreign intelligence purposes, including surveillance of communications between persons located within the United States and surveillance of communications between persons located within the United States and persons located outside the United States.2 See 50 U.S.C. §§ 1801(f), 1804(a)(6)(A). The 2008 FAA amends FISA. It leaves much of the preexisting surveillance authorization procedure intact, but it creates new procedures for the authorization of foreign intelligence electronic surveillance targeting non-United States persons located outside the United States.3 See id. § 1881a; see also 154 Cong. Rec. S227, 228 (daily ed. Jan. 24, 2008) (statement of Sen. Rockefeller) (“[W]e wanted to ensure that activities authorized by this bill are only directed at persons outside the United States.... For individuals inside the United States, the existing procedures under FISA continue to apply.”). The plaintiffs complain that the new procedures unlawfully permit broader collection of intelligence with less judicial oversight.

2

FISA defined electronic surveillance to include:

(1) the acquisition by an electronic, mechanical, or

other surveillance device of the contents of any

wire or radio communication sent by or intended

to be received by a particular, known United

States person who is in the United States, if the

contents are acquired by intentionally targeting

that United States person, under circumstances in

which a person has a reasonable expectation of

privacy and a warrant would be required for law

enforcement purposes;

(2) the acquisition by an electronic, mechanical, or

other surveillance device of the contents of any

2

Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)
wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of Title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. 50 U.S.C. § 1801(f).

3

“ ‘United States person’ means ‘a citizen of the United

States, an alien lawfully admitted for permanent

residence ..., an unincorporated association a substantial

number of members of which are citizens of the United

States or aliens lawfully admitted for permanent

residence, or a corporation which is incorporated in the

United States, but does not include a corporation or an

association which is a foreign power....’ ” 50 U.S.C. §

1801(i).

A. Surveillance Authorization Procedures Prior to the FAA FISA established procedures requiring federal officials to obtain authorization to *123 conduct electronic surveillance for foreign intelligence purposes. It created the Foreign Intelligence Surveillance Court (“FISC”), to which the government had to apply for authorization to conduct foreign intelligence surveillance. See 50 U.S.C. §§ 1803, 1804.
To obtain authorization, a federal officer had to submit an application, approved by the Attorney General, that included: the identity of the officer making the application; the identity, if known, or a description of, the individual to be monitored by the surveillance (“the target”); the bases for believing both that the target was a

foreign power or an agent of a foreign power, and that a foreign power or an agent of a foreign power was using or was about to use each of the facilities at which the surveillance was directed; proposed minimization procedures; the nature of the information sought and the type of communications or activities to be surveilled; a certification that a significant purpose of the surveillance was to obtain foreign intelligence information, and that the information could not reasonably be obtained by normal investigative techniques; the means by which the surveillance would be effected; a description of any previous surveillance applications; and the period during which the surveillance was to be maintained. Id. § 1804(a)(1)-(9).
Before approving an application, a FISC judge4 had to find that: the application met the above criteria; there was probable cause to believe both that the target was a foreign power or an agent of a foreign power and that each of the facilities or places at which the electronic surveillance was directed was being used, or was about to be used, by a foreign power or an agent of a foreign power; and the government’s proposed minimization procedures met the standards defined in § 1801(h).5 Id. § 1805(a).

4

The Chief Justice of the United States publicly

designates eleven district court judges to serve on the

FISC. 50 U.S.C. § 1803(a)(1).

5

50 U.S.C. § 1801(h) defines minimization procedures,

in relevant part, as:

(1) specific procedures, which shall be adopted by

the Attorney General, that are reasonably designed

in light of the purpose and technique of the

particular surveillance, to minimize the acquisition

and retention, and prohibit the dissemination, of

nonpublicly available information concerning

unconsenting United States persons consistent

with the need of the United States to obtain,

produce, and disseminate foreign intelligence

information;

(2) procedures that require that nonpublicly

available information, which is not foreign

intelligence information, as defined in subsection

(e)(1) of this section, shall not be disseminated in a

manner that identifies any United States person,

without such person’s consent, unless such

person’s identity is necessary to understand

foreign intelligence information or assess its

importance;

(3) notwithstanding paragraphs (1) and (2),

procedures that allow for the retention and

3

Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)
dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes[.] Section 1801(h) also includes a fourth requirement for minimization procedures that applies to authorization of surveillance directed solely at communications between or among foreign powers. 50 U.S.C. §§ 1801(h)(4), 1802. The fourth requirement does not pertain to the type of foreign intelligence surveillance plaintiffs challenge.
A FISC judge who approved an application was required to enter an individualized ex parte order that specified (among other things): the identity, if known, or a description of the target; the nature and location of the places to be monitored; the type of information sought to be acquired; the means of surveillance, and the time period for which surveillance was approved. Id. § 1805(c)(1). The order also had to direct the government to follow the *124 approved minimization procedures. Id. § 1805(c)(2)(A). During the authorized surveillance period, the FISC could monitor compliance with these minimization procedures “by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.” Id. § 1805(d)(3).
B. Surveillance Authorization Procedures After the FAA The FAA leaves much of the FISA framework intact, but the new Section 702 creates new procedures for the authorization of foreign intelligence surveillance targeting non-United States persons located outside the United States.
The FAA, in contrast to the preexisting FISA scheme, does not require the government to submit an individualized application to the FISC identifying the particular targets or facilities to be monitored. Instead, the Attorney General (“AG”) and Director of National Intelligence (“DNI”) apply for a mass surveillance authorization by submitting to the FISC a written certification and supporting affidavits attesting generally that “a significant purpose of the acquisition is to obtain foreign intelligence information” and that that information will be obtained “from or with the assistance of an electronic communication service provider.” 50 U.S.C. § 1881a(g)(2)(A)(v), (vi). The certification must also attest that adequate targeting and minimization procedures have been approved by the FISC, have been submitted to the

FISC for approval, or are being submitted with the certification. Id. § 1881a(g)(2)(A)(i), (ii). “Targeting procedures” are procedures designed to ensure that an authorized acquisition is “limited to targeting persons reasonably believed to be located outside the United States,” and is designed to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” Id. § 1881a(d)(1), 1881a(g)(2)(A)(i)(I). “Minimization procedures” for electronic surveillance under the FAA must meet the definition of minimization procedures for electronic surveillance under FISA, set out in 50 U.S.C. § 1801(h). The government’s certification must further attest that the surveillance procedures, which must be included with the certification, comply with the Fourth Amendment. Id. § 1881a(g)(2).
In addition, the certification must attest that the surveillance complies with statutory limitations providing that it:
(1) may not intentionally target any person known at the time of acquisition to be located in the United States;
(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
(3) may not intentionally target a United States person reasonably believed to be located outside the United States;
(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.
50 U.S.C. § 1881a(b); see also id. § 1881a(g)(2)(A)(vii).
The FISC must review the government’s certification, and targeting and minimization procedures, and if it finds that the certification includes all of the required elements, it must issue an order authorizing the government to conduct the *125 requested surveillance. Id. § 1881a(i)(2), 1881a(i)(3)(A). At that point, the AG and
4

Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)

DNI “may authorize jointly, for a period of up to 1 year ..., the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” Id. § 1881a(a).6

6

In exigent circumstances, the government may start

wiretapping before applying for FISC authorization, so

long as the government applies to the FISC for

authorization within seven days. 50 U.S.C. §

1881a(c)(2), 1881a(g)(1)(B).

If the FISC rejects an application, the government may appeal the denial to the Court of Review. Id. § 1881a(i)(4)(A). During the pendency of that appeal, including any subsequent rehearing en banc, the government may continue to conduct the requested surveillance. Id. § 1881a(i)(4)(B).
Under the FAA, in contrast to the preexisting FISA scheme, the FISC may not monitor compliance with the targeting and minimization procedures on an ongoing basis. Instead, that duty falls to the AG and DNI, who must submit their assessments to the FISC, as well as the congressional intelligence committees and the Senate and House Judiciary Committees. Id. § 1881a(l )(1). In its summary judgment submissions, the government asserted that “[s]hould such reporting reveal particular minimization procedures to be ineffective in any respect, the FISC has the authority to disapprove such procedures in future § 1881a proceedings.” Defs.’ Mem. in Opp’n to Pls.’ Mot. for Summ. J. at 52–53, Amnesty Int’l USA v. McConnell, 646 F.Supp.2d 633 (S.D.N.Y.2009) (No. 08 Civ. 6259). But the government has not asserted, and the statute does not clearly state, that the FISC may rely on these assessments to revoke earlier surveillance authorizations.
The head of each element of the intelligence community acquiring communications by means of authorized surveillance also must review the ongoing surveillance procedures by conducting “an annual review to determine whether there is reason to believe that foreign intelligence information has been or will be obtained from the acquisition.” 50 U.S.C. § 1881a(l )(3)(A). These reviews of authorized acquisitions must indicate how many United States persons were overheard or were referred to in intercepted communications that were collected under surveillance designed to target non-United States persons.7 The relevant intelligence heads who conduct such annual reviews must use them “to evaluate the adequacy of the minimization procedures,” id. § 1881a(l

)(3)(B), and they must provide these annual reviews to the FISC, the AG, the DNI, the congressional intelligence committees, and the Senate and House Judiciary Committees, id. § 1881a(l )(3)(C).

7

More specifically, the FAA requires that these reviews

provide, inter alia, a count of “disseminated intelligence

reports containing a reference to a United States-person

identity” and “the number of [surveillance] targets that

were later determined to be located in the United States

and, to the extent possible, whether communications of

such targets were reviewed.” 50 U.S.C. § 1881a(l

)(3)(A).

C. Comparison of Pre- and Post–FAA Surveillance Authorization Procedures The plaintiffs highlight two differences between the preand post-FAA surveillance authorization procedures. First, whereas under the preexisting FISA scheme the government had to submit an individualized application for surveillance identifying the particular target, facility, type of information sought, and procedures *126 to be used, under the FAA, the government need not submit a similarly individualized application—it need not identify the particular target or facility to be monitored. Compare 50 U.S.C. § 1805(c)(1), with id. § 1881a(d)(1), 1881a(g)(4). Second, whereas under the preexisting FISA scheme the FISC had to find probable cause to believe both that the surveillance target is a “foreign power” or agent thereof and that the facilities to be monitored were being used or about to be used by a foreign power or its agent, under the FAA the FISC no longer needs to make any probable-cause determination at all. Instead, the FISC simply verifies that the government has made the proper certifications. Compare 50 U.S.C. § 1805(a)(2)(A), with id. § 1881a(i)(3)(A).
In practice, these new authorization procedures mean that surveillance orders can be significantly broader under the FAA than they previously could have been. Prior to the FAA, surveillance orders could only authorize the government to monitor specific individuals or facilities. Under the FAA, by contrast, the plaintiffs allege that an acquisition order could seek, for example, “[a]ll telephone and e-mail communications to and from countries of foreign policy interest—for example, Russia, Venezuela, or Israel—including communications made to and from U.S. citizens and residents.” Moreover, the specific showing of probable cause previously required, and the requirement of judicial review of that showing, have been
5

Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)

eliminated. The government has not directly challenged this characterization.8

8

In its brief, the government says that it “disputes” the

plaintiffs’ interpretation of “the scope of [the FAA],”

but it does not identify what is wrong with the

plaintiffs’ interpretation, or what a more appropriate

interpretation would be. At oral argument, we asked the

government to clarify what it found inaccurate in the

plaintiffs’ characterization, and again it failed to do so.

An additional distinction concerns who monitors compliance with statutory limitations on the surveillance procedures. The preexisting FISA scheme allowed ongoing judicial review by the FISC. Id. § 1805(d)(3). But under the FAA, the judiciary may not monitor compliance on an ongoing basis; the FISC may review the minimization procedures only prospectively, when the government seeks its initial surveillance authorization. Rather, the executive—namely the AG and DNI—bears the responsibility of monitoring ongoing compliance, and although the FISC receives the executive’s reports, it cannot rely on them to alter or revoke its previous surveillance authorizations. Compare 50 U.S.C. § 1805(d)(3), with id. § 1881a(g)(2)(A)(i), (ii), 1881a(l ).

II. Prior Proceedings
A. Parties The plaintiffs are attorneys and human rights, labor, legal, and media organizations whose work requires international communications with individuals they believe the government will likely monitor under the FAA.9 The plaintiffs sued the DNI, the AG, and the Director of the National Security Agency (“NSA”) in their official capacities (collectively, “the government”).

9

The nature of and need for these communications with

such individuals is fleshed out below.

B. Complaint On July 10, 2008, the same day Congress enacted the FAA, the plaintiffs filed their complaint alleging that the FAA “allows the executive branch sweeping and virtually unregulated authority to monitor *127 the international communications ... of law-abiding U.S. citizens and

residents.” The plaintiffs alleged that they feared that under the FAA the government would intercept their sensitive international communications that were necessary to carrying out their jobs, and that they therefore had to take costly and burdensome measures to protect the confidentiality of those communications. They sought declaratory and injunctive relief, alleging that the FAA facially violates the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers.

C. Summary Judgment Filings In September and October 2008, the parties cross-moved for summary judgment. The plaintiffs sought a declaration that the FAA is unconstitutional. The government, in addition to defending the FAA’s constitutionality on the merits, argued that the plaintiffs lacked standing to challenge the facial validity of the statute, contending that the Act could be challenged only by persons who had been electronically surveilled in accordance with its terms and the plaintiffs could not show that they had been so surveilled. The plaintiffs advanced what they characterized as two independent bases for standing to challenge the FAA’s constitutionality: first, that they have an actual and well-founded fear that their communications will be monitored in the future; and, second, that in light of that fear they have taken costly and burdensome measures to protect the confidentiality of certain communications.
In support of their standing arguments, the plaintiffs filed declarations and a Statement of Undisputed Facts pursuant to Local Rule 56.1 (“56.1 Statement”). The plaintiffs’ evidence tended to show that their work “requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign governmental officials, and victims of human rights abuses located outside the United States.”10 The individuals with whom the plaintiffs communicate include “people the U.S. Government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,” and “people located in geographic areas that are a special focus of the U.S. government’s counterterrorism or diplomatic efforts.”11

10

As more fully discussed below, the government does

not dispute the accuracy of plaintiffs’ factual assertions.

6

Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)

11

The plaintiffs submitted a number of declarations

providing examples of such individuals: Attorney Scott

McKay, for instance, communicates with his client

Sami Omar Al–Hussayen, a Saudi Arabian resident

who has faced criminal charges in connection with the

September 11 terrorist attacks and is now a defendant

in several related civil cases. McKay also helps

represent Khalid Sheik Mohammed, who is being held

at Guantanamo Bay for alleged acts of terrorism, and in

the course of this representation McKay regularly

communicates with Mohammed’s family members,

experts, and investigators around the world. Attorney

Sylvia Royce represents Mohammedou Ould Salahi, a

Mauritanian national and Guantanamo Bay prisoner,

who allegedly acted as a liaison between al Qaeda and

German Islamic radicals. Royce communicates

information about Salahi’s case with his brother in

Germany, and with her Mauritanian and French

co-counsel.

Attorney Joanne Mariner, who directs Human Rights

Watch’s Terrorism and Counterterrorism Program,

which reports on human rights abuses by

governments and non-state actors throughout the

world, regularly speaks with human rights

researchers, translators, former detainees, and

political activists in locations including Jordan,

Egypt, Pakistan, Afghanistan, and the Gaza Strip,

often in an effort to locate individuals who the CIA

has alleged are associated with terrorist

organizations, or individuals whom the CIA has

detained and allegedly tortured. John Walsh, who

conducts research and advocacy on U.S. policy

toward the Andes region for the Washington Office

on Latin America (“WOLA”), testifies that WOLA

relies on, inter alia, Cuban sources who are

outspoken critics of the U.S. embargo.

Journalist Naomi Klein reports on a wide variety of

international topics, and in order to do so she

communicates with sources abroad, including

Mexican individuals regarding military activity in

Chiapas, Argentinian advocates for indigenous

rights, and indigenous Colombian groups who

oppose U.S. trade policies. Likewise, journalist Chris

Hedges, whose writing focuses on American and

Middle Eastern politics and society, maintains

regular contact with academics, journalists,

politicians, and activists in places such as Iran, Syria,

Libya, Kosovo, Bosnia, and Sudan. He also

communicates with political activists and civil

society leaders in Palestine, whom he believes are

“of interest” to the U.S. government.

*128 The plaintiffs assert that in their electronic

communications with these individuals they exchange information that “constitutes ‘foreign intelligence information’ within the meaning of the FAA.” The plaintiffs believe that, because of the nature of their communications with these individuals, the communications will likely be “acquired, retained, analyzed, and disseminated” under the FAA.
Their fear of future surveillance, according to the plaintiffs, inflicts present injuries. For instance, in order to protect the confidentiality of sensitive and privileged communications the plaintiffs have “ceased engaging in certain conversations on the telephone and by e-mail,” which, in turn, “compromises [their] ability to locate witnesses, cultivate sources, gather information, communicate confidential information to their clients, and to engage in other legitimate and constitutionally protected communications.” In addition, the FAA has “force[d] plaintiffs to take costly and burdensome measures,” such as traveling long distances to meet personally with individuals.
The attorney plaintiffs assert that they are obligated to take these measures in order to comply with their “ethical obligation to avoid communicating confidential information about client matters over telephone, fax, or e-mail if they have reason to believe that it is likely to be intercepted by others.” In support of this assertion, the plaintiffs filed a declaration from Professor Stephen Gillers, an expert in legal ethics, stating that it is “the duty of a lawyer to safeguard confidential information.”
Gillers attested that “[d]eterminative of how the lawyer may proceed is ... whether the lawyer has good reason to believe that his or her communications are reasonably likely to be intercepted, even if the interception is lawful.” He then opined that the FAA gives the attorneys sufficient reason to believe their communications will be intercepted:
My opinion is that the lawyers have good reason for this belief [that their communications with clients and third parties in connection with client matters will be intercepted] because of the status of their clients, the identity and location of witnesses and sources, and the broad authority that the FAA grants the government. The lawyers’ decision to avoid electronic means of communication is not discretionary. It is obligatory.12
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Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)

12

It is undisputed and indisputable that attorneys have an

ethical duty to avoid disclosure of confidential

information relating to the representation of clients.

However, to the extent that Professor Gillers declares

that the FAA creates a sufficient risk of interception to

trigger that ethical duty, that assertion relies on his

analysis of how the FAA operates, which we are not

compelled to accept. It is for us to determine whether it

is reasonable for the attorneys (and other plaintiffs, for

that matter) to alter their behavior based on their fear

that their communications will be intercepted. That is,

ultimately, a legal determination on which we need not

accept, even for purposes of summary judgment, the

correctness of plaintiffs’ submissions.

*129 The government did not submit any evidence of its own either in opposition to the plaintiffs’ submissions, or in support of its own summary judgment motion. Additionally, at oral argument on the summary judgment motions, the government said it accepted the factual submissions of the plaintiffs as true for purposes of those motions. Amnesty Int’l, 646 F.Supp.2d at 641. We therefore must accept the plaintiffs’ evidence as undisputed explanations of how the FAA has affected them.13

13

At oral argument on this appeal, the government

professed itself “puzzled” as to why the plaintiffs had

not been just as nervous about being monitored before

the FAA was enacted as they are now. To the extent

that that statement questioned whether the plaintiffs

genuinely fear being monitored after the FAA’s

enactment more than they did before it, the government

cannot raise that challenge on appeal. The plaintiffs’

56.1 Statement said that “[t]he threat of surveillance

under the new law has a much greater impact on [their]

work than previous U.S. government surveillance.” The

time to challenge the accuracy of the plaintiffs’

assertions in their declarations has passed. The

government could have filed its own evidence, or

sought an evidentiary hearing on the accuracy of the

plaintiffs’ claims, but it did neither. See Gubitosi v.

Kapica, 154 F.3d 30, 31 n. 1 (2d Cir.1998) (deeming

admitted all material facts contained in an unopposed

Rule 56.1 statement); see also S.D.N.Y. Local R.

56.1(c) (“Each numbered paragraph in the statement of

material facts set forth in the statement required to be

served by the moving party will be deemed to be

admitted for purposes of the motion unless specifically

controverted by a correspondingly numbered paragraph

in the statement required to be served by the opposing

party.”).

D. District Court’s Summary Judgment Opinion

The district court held that the plaintiffs lacked standing

to challenge the FAA, and therefore granted summary

judgment for defendants without reaching the merits of

the plaintiffs’ claims. After identifying the three

constitutional requirements for standing—an injury in

fact, a causal connection between the injury and the

challenged statute, and redressability—the court stated

that “[t]his case turns on whether the plaintiffs have met

the irreducible constitutional minimum of personal,

particularized, concrete injury in fact.” Id. at 643–44. The

court denied standing because it found that neither of the

plaintiffs’ asserted injuries—their actual and

well-founded fear of being monitored, and the resulting

professional and economic costs they have incurred to

protect

the

confidentiality

of

their

communications—constituted the requisite injury in fact.

1. Fear of Future Surveillance
The district court found the plaintiffs’ fear of future surveillance too speculative to confer standing. It stated:
The plaintiffs have failed to establish standing to challenge the constitutionality of the FAA on the basis of their fear of surveillance. The plaintiffs can only demonstrate an abstract fear that their communications will be monitored under the FAA. The FAA creates a framework within which intervening federal officials may apply for approval from the FISC to authorize surveillance targeting non-United States persons located outside the United States to acquire foreign intelligence information. The FAA sets forth the requirements that an application to obtain a surveillance order from the FISC must satisfy. Contrary to the characterization of the statute in the plaintiffs’ motion papers, the FAA itself does not authorize the surveillance of *130 the plaintiffs’ communications. Indeed, the FAA
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Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)

Id. at 645.

neither authorizes surveillance nor identifies on its face a class of persons that includes the plaintiffs. Rather the FAA authorizes specified federal officials to seek a surveillance order from the FISC. That order cannot target the plaintiffs and whether an order will be sought that affects the plaintiffs’ rights, and whether such an order would be granted by the FISC, is completely speculative.

To arrive at this conclusion, the district court relied on three lines of cases. First, the court looked to cases where plaintiffs have sought standing to challenge electronic surveillance schemes, namely United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C.Cir.1984), and ACLU v. NSA, 493 F.3d 644 (6th Cir.2007). Both of these cases rejected the plaintiffs’ standing arguments, which were based on their fear of future injuries, because the plaintiffs’ respective fears were too speculative. The district court found those cases apposite and persuasive. See Amnesty Int’l, 646 F.Supp.2d at 645–47.
Second, the court examined “ ‘physical surveillance cases’ where the Supreme Court reached the merits of challenges to laws or policies authorizing drug or alcohol testing for specific classes of persons, without requiring that the plaintiffs had actually submitted to such testing before bringing such challenges.” Id. at 647–48. The district court held that those cases have “no application to this case, where the plaintiffs are not required to do anything or to submit to anything, and where there is no showing that the Government has authorized any action against [a class of persons including] the plaintiffs.” Id. at 648.
Finally, the district court examined standing cases outside the surveillance context, and said those cases:
stand for the proposition that a plaintiff may challenge a specific law or regulation before it is enforced against the plaintiff if the plaintiff is subject to that law or regulation and has a well-founded fear that it will be so enforced. The plaintiffs in this case have made no

Id. at 649.

showing that they are subject to any specific law or regulation that they seek to challenge. The FAA does not require that the plaintiffs do anything or refrain from doing anything such that they might have a well-founded fear that the Government would take action against them for failing to abide by the statute. Moreover, the FAA does not authorize surveillance of the plaintiffs’ communications and the plaintiffs have made no showing that the Government has sought any such surveillance pursuant to the general framework set forth in the statute or that such surveillance has been authorized.

2. Economic and Professional Costs Incurred to Protect Communications
As for the plaintiffs’ economic and professional costs, the court found that those injuries are “not truly independent of the [plaintiffs’] first basis” for standing, because those costs “flow directly from the plaintiffs’ fear of surveillance.” Id. at 653. The court said that “[t]o allow the plaintiffs to bring this action on the basis of such costs would essentially be to accept a repackaged version of the first failed basis for standing.” Id. Moreover, the court held that “because the plaintiffs have failed to show that they are subject to the FAA and that they face a threat of harm from its enforcement, the chilling of their speech that they attribute to the statute is *131 actually the result of their purely subjective fear of surveillance.” Id. The court went on to state that the Supreme Court has held in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), that such a subjective chill “is insufficient to support standing.” Amnesty Int’l, 646 F.Supp.2d at 653.
DISCUSSION
This opinion addresses only the question of whether plaintiffs have standing to challenge the FAA. It does not address the FAA’s constitutionality. The district court did
9

Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)
not reach that issue, and the parties did not brief it. The question before this Court is only whether the plaintiffs may maintain this lawsuit, a question that “in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal.” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). “We review questions of standing de novo.” Carver v. City of New York, 621 F.3d 221, 225 (2d Cir.2010).
I. Elements and Principles of Standing Article III of the United States Constitution empowers federal courts to hear only “cases” and “controversies.” U.S. Const. art. III, § 2. Standing doctrine determines “whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Art. III,” and is therefore “entitled to have the court decide the merits of the dispute or of particular issues.” Warth, 422 U.S. at 498, 95 S.Ct. 2197; see also Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). A citizen who dislikes a particular law may not require a court to address its constitutionality simply by stating in a complaint his belief, however deeply held, that the law is inconsistent with some provision of the Constitution. “[T]he [Supreme] Court has rejected all attempts to substitute abstract concern with a subject ... for the concrete injury required by Art. III.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 410, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (internal quotation marks omitted) (citing cases); see also Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220–21, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974).
The plaintiff must be affected by the law in some concrete way. “Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution.” Schlesinger, 418 U.S. at 220–21, 94 S.Ct. 2925. The critical question is whether “the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009) (internal quotation marks and alterations omitted).
The Supreme Court has said that “the irreducible constitutional minimum of standing contains three elements”:
First, the plaintiff must have suffered an injury in fact—an

invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.14 Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it *132 must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

14

Where a plaintiff seeks injunctive relief, he must show

that he is “under threat of suffering [an] injury in fact,”

a requirement that is discussed more fully below.

Summers, 129 S.Ct. at 1149 (internal quotation marks

omitted).

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and punctuation omitted); accord Horne v. Flores, 557 U.S. 433, 129 S.Ct. 2579, 2592, 174 L.Ed.2d 406 (2009). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. These requirements “assure[ ] that there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party.” Summers, 129 S.Ct. at 1148 (internal quotation marks omitted).
Standing doctrine serves a number of purposes. The Supreme Court has said standing is “built on a single basic idea—the idea of separation of powers.” Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). “[T]he judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts.” Hein v. Freedom From Religion Found., 551 U.S. 587, 598, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (internal quotation marks omitted). By limiting the exercise of judicial review of other branches of government to cases where it is necessary to protect a complaining party’s interests, standing doctrine is “founded in concern about the proper—and properly limited—role of the courts in a democratic society.” Warth, 422 U.S. at 498, 95 S.Ct. 2197. If we had no
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Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)

standing doctrine and instead simply allowed the courts to “oversee legislative or executive action,” that would “significantly alter the allocation of power away from a democratic form of government.” Summers, 129 S.Ct. at 1149 (internal quotation marks and ellipsis omitted).
Standing doctrine also serves to improve judicial decision-making by ensuring that a concrete case informs the court of the consequences of its decisions, and by ensuring that the party bringing the case has “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); see also Lujan, 504 U.S. at 581, 112 S.Ct. 2130 (Kennedy, J., concurring in part) (standing requirements “preserve[ ] the vitality of the adversarial process by assuring both that the parties before the court have an actual ... stake in the outcome, and that the legal questions presented will be resolved, not in the rarefied atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action” (internal quotation marks and ellipsis omitted)).15

15

Standing has been said to serve a number of other

values, as well, including: promoting judicial efficiency

and effectiveness by preventing the courts from being

overwhelmed with cases where plaintiffs have only an

ideological stake, see United States v. Richardson, 418

U.S. 166, 192, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974)

(Powell, J., concurring) (“[W]e risk a progressive

impairment of the effectiveness of the federal courts if

their limited resources are diverted increasingly from

their historic role to the resolution of public-interest

suits brought by litigants who cannot distinguish

themselves from all taxpayers or all citizens.”); and

promoting fairness, by ensuring that plaintiffs enforce

only their own rights rather than third parties’ rights,

see Singleton v. Wulff, 428 U.S. 106, 113–14, 96 S.Ct.

2868, 49 L.Ed.2d 826 (1976) ( “First, the courts should

not adjudicate such rights unnecessarily, and it may be

that in fact the holders of those rights either do not wish

to assert them, or will be able to enjoy them regardless

of whether the in-court litigant is successful or not.

Second, third parties themselves usually will be the best

proponents of their own rights.” (citation omitted)).

*133 II. Plaintiffs’ Asserted Grounds for Standing On appeal, the plaintiffs reassert that they have suffered

two types of injuries. First, they claim that they fear that the government will intercept their sensitive international communications, because the FAA “plainly authorizes the acquisition of [their] international communications,” and their communications are “likely to be monitored under it.” Second, they claim that anticipation of this future injury also inflicts a present injury “by compelling them to take costly and burdensome measures to protect the confidentiality of their international communications” and by compromising their “ability to locate witnesses, cultivate sources, gather information, communicate confidential information to their clients, and to engage in other legitimate and constitutionally protected communications.”
The district court and the parties have focused on whether the plaintiffs’ asserted injuries satisfy the injury-in-fact component of the standing inquiry. Although they are correct that the plaintiffs’ first asserted injury—the possibility of being monitored in the future—raises a question of injury in fact, because probabilistic injuries constitute injuries in fact only when they reach a certain threshold of likelihood, see City of Los Angeles v. Lyons, 461 U.S. 95, 107 n. 8, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the plaintiffs’ second asserted injury alleges the most mundane of injuries in fact: the expenditure of funds. The plaintiffs’ declarations, which, as discussed above, we must accept as true, establish that they have already incurred professional and economic costs to avoid interception. Having accepted the truthfulness of the plaintiffs’ declarations for purposes of the summary judgment motion, the government cannot now dispute whether the plaintiffs genuinely fear being intercepted, or whether the plaintiffs have actually incurred the costs they claim to have incurred. Thus, we have little doubt that the plaintiffs have satisfied the injury-in-fact requirement.
[1] As to the second asserted injury—their present-injury theory—that the plaintiffs have demonstrated injuries in fact is not sufficient in itself to establish standing. The plaintiffs must also prove that the injuries are caused by the challenged statute and that a favorable judgment would redress them. The government’s challenge to the plaintiffs’ standing based on their incurred professional and economic costs focuses on whether there is a “causal connection between [the plaintiffs’] injury and the [legislation] complained of.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130. The causal chain can be broken where a plaintiff’s self-inflicted injury results from his “unreasonable decision ... to bring about a harm that he knew to be avoidable.” St. Pierre v. Dyer, 208 F.3d 394, 403 (2d Cir.2000). However, “[s]tanding is not defeated
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Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)
merely because the plaintiff has in some sense contributed to his own injury.... Standing is defeated only if it is concluded that the injury is so completely due to the plaintiff’s own fault as to break the causal chain.” 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531.5, at 361–62 (3d ed. 2008) (footnotes omitted).
If the plaintiffs can show that it was not unreasonable for them to incur costs out of fear that the government will intercept their communications under the FAA, then the measures they took to avoid interception can support standing. If the possibility of interception is remote or fanciful, however, their present-injury theory fails *134 because the plaintiffs would have no reasonable basis for fearing interception under the FAA, and they cannot bootstrap their way into standing by unreasonably incurring costs to avoid a merely speculative or highly unlikely potential harm. Any such costs would be gratuitous, and any ethical concerns about not taking those measures would be unfounded. In other words, for the purpose of standing, although the plaintiffs’ economic and professional injuries are injuries in fact, they cannot be said to be “fairly traceable” to the FAA—and cannot support standing—if they are caused by a fanciful, paranoid, or otherwise unreasonable fear of the FAA. “If causation is to be required at all, it should demand a meaningful level of probability,” but “[a]s with other elements of standing, the showing required might be tailored to the other facts that make it more or less appropriate to decide the case.” Wright, Miller & Cooper, supra, § 3531.5, at 328.
Here, the plaintiffs’ actions were “fairly traceable” to the FAA. Because, as we shall explain, the plaintiffs’ fears were reasonable even under the stringent reasonableness standards found in future-injury cases, and because the plaintiffs incurred these professional and economic costs as a direct result of that reasonable fear, their present injuries in fact clearly satisfy the requirements for standing. We therefore need not and do not decide whether the degree of likelihood necessary to establish a causal relationship between an actual present injury and the challenged governmental action is as stringent as that necessary for a potential harm in itself to confer standing. However, the line of future-injury standing cases provides a helpful framework for analyzing the plaintiffs’ present-injury arguments. Those cases bolster our conclusion that the professional and economic harms the plaintiffs suffered here were fairly traceable to the FAA, and were not the result of an “unreasonable decision” on their part “to bring about a harm that [they] knew to be

avoidable.” St. Pierre, 208 F.3d at 403.
[2] In addition to their present-injury theory, the plaintiffs advance a future-injury theory of standing. A future injury or threat of injury does not confer standing if it is “conjectural or hypothetical” and not “real and immediate.” See O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (internal quotation marks omitted). To determine whether the plaintiffs have standing under their future-injury theory, we would need to determine whether the FAA creates an objectively reasonable likelihood that the plaintiffs’ communications are being or will be monitored under the FAA. As noted above, we conclude that the future injuries alleged by the plaintiffs are indeed sufficiently likely to confer standing under the test established in the case law for basing standing on the risk of future harm.
The government’s first argument against the plaintiffs’ standing—on both theories—is that the FAA does not create a sufficiently high likelihood that those communications will be monitored. In our judgment, however, for the reasons set forth in Part III, below, the plaintiffs have established that they reasonably fear being monitored under the allegedly unconstitutional FAA, and that they have undertaken costly measures to avoid it. Those present injuries—fairly traceable to the FAA and likely to be redressable by a favorable judgment—support the plaintiffs’ standing to challenge the statute.
The government next argues that the plaintiffs lack standing because any injury they suffer is indirect. That is, the government contends that because the FAA does not directly target the plaintiffs, any injury the plaintiffs suffer is a result of *135 their reaction to the government’s potential monitoring of third parties. The government essentially argues that this indirectness defeats the plaintiffs’ standing because it attenuates the causal chain linking the plaintiffs’ injuries to the FAA. For the reasons set forth in Part IV, below, we disagree.
III. Likelihood of Government Action The government argues that the plaintiffs can obtain standing only by showing either that they have been monitored or that it is “effectively certain” that they will be monitored. The plaintiffs fall short of this standard, according to the government, because they “simply speculate that they will be subjected to governmental action taken pursuant to [the FAA].”
But the government overstates the standard for
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determining when a present injury linked to a contingent future injury can support standing. The plaintiffs have demonstrated that they suffered present injuries in fact—concrete economic and professional harms—that are fairly traceable to the FAA and redressable by a favorable judgment. The plaintiffs need not show that they have been or certainly will be monitored. Indeed, even in cases where plaintiffs allege an injury based solely on prospective government action, they need only show a “realistic danger” of “direct injury,” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); and where they allege a prospective injury to First Amendment rights, they must show only “ ‘an actual and well-founded fear’ ” of injury, Vt. Right to Life Comm. v. Sorrell, 221 F.3d 376, 382 (2d Cir.2000), quoting Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), an arguably less demanding standard.16

16

For a comparison of the “realistic danger” and

“well-founded fear” standards, see Amnesty Int’l, 646

F.Supp.2d at 644 n. 12. We do not discuss the

distinction here, because it does not determine the

outcome of this case.

A. Standard [3] When a plaintiff asserts a present injury based on conduct taken in anticipation of future government action, we evaluate the likelihood that the future action will in fact come to pass. To determine whether the present injury “fairly can be traced to the challenged [future] action,” see Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), we must consider whether a plaintiff’s present injury resulted from some irrational or otherwise clearly unreasonable fear of future government action that is unlikely to take place. Such a disconnect between the present injury and predicted future government action would break the causal chain required for standing.
In this context, cases that discuss whether a potential future harm is sufficiently likely such that the chance of that future harm constitutes an injury in fact can provide some guidance for determining whether the plaintiffs have satisfied the causation requirement for standing where their assertions of present and ongoing injuries stem, in part, from a desire to avoid potential future injuries.17

17

By analyzing the plaintiffs’ allegations of present injury

in terms of cases relating to future harms, we do not

suggest that actual present injuries may only be traced

to governmental action when the causal connection is

as strong as the likelihood of injury required to base

standing on contingent future harms. Rather, we use

those cases, and the stringent reasonableness standards

they impose for future-injury standing, to demonstrate

just how strong the plaintiffs’ present-injury standing

claims here truly are.

*136 In Lyons, the seminal case on standing based on probabilistic or prospective harm, the plaintiff sued the City of Los Angeles and certain police officers alleging that officers stopped him for a traffic violation and, without provocation, applied a chokehold, rendering him unconscious and damaging his larynx. Lyons, 461 U.S. at 97–98, 103 S.Ct. 1660. In addition to seeking damages, he sought to enjoin police officers’ use of chokeholds. Id. at 98, 103 S.Ct. 1660.
The Court said, “Lyons’ standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers,” id. at 105, 103 S.Ct. 1660, emphasizing that “[t]he reasonableness of [the plaintiff’s] fear [of future injury] is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct. It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s subjective apprehensions.” Id. at 107 n. 8, 103 S.Ct. 1660 (emphasis in original).
The Court held that Lyons lacked standing to pursue injunctive relief, because he did not show a sufficient likelihood that he would be injured. Id. at 111–12, 103 S.Ct. 1660. It said, “[w]e cannot agree that the odds that Lyons would not only again be stopped for a traffic violation but would also be subjected to a chokehold without any provocation whatsoever are sufficient to make out a federal case for equitable relief.” Id. at 108, 103 S.Ct. 1660 (internal citation and quotation marks omitted). Without a “sufficient likelihood that he will again be wronged in a similar way,” Lyons was “no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional.” Id. at 111, 103 S.Ct. 1660.
Although the plaintiff in Lyons lacked standing, that case clearly articulated the principle that a plaintiff may obtain standing by showing a sufficient likelihood of future
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injury. Indeed, the Court stated that Lyons would have established standing if he had been able to allege facts that would have made his injury sufficiently likely—such as another encounter with the police or a city policy authorizing police officers to engage in the conduct he feared.18

18

The Court stated:

In order to establish an actual controversy in this

case, Lyons would have had not only to allege that

he would have another encounter with the police

but also to make the incredible assertion either, (1)

that all police officers in Los Angeles always

choke any citizen with whom they happen to have

an encounter, whether for the purpose of arrest,

issuing a citation or for questioning or, (2) that the

City ordered or authorized police officers to act in

such manner.

Lyons, 461 U.S. at 105–06, 103 S.Ct. 1660.

This Court has articulated the principle of Lyons as requiring an inquiry into the probability of future harm. In Curtis v. City of New Haven, 726 F.2d 65 (2d Cir.1984), where plaintiffs sought to enjoin police officers’ use of mace in certain circumstances because officers stopped them, maced them, and gave them no treatment afterward, we denied standing, holding that “the Court made clear in Lyons that the critical inquiry is the likelihood that these plaintiffs will again be illegally assaulted with mace.” Id. at 68 (emphasis supplied).19

19

For examples of cases where courts have granted

standing based on probabilistic injuries, see Davis v.

FEC, 554 U.S. 724, 735, 128 S.Ct. 2759, 171 L.Ed.2d

737 (2008) (granting standing to congressional

candidate to challenge campaign finance law that raised

restrictions on contributions to competitors in certain

circumstances, despite the fact that the raised

restrictions had not yet been triggered when plaintiff

filed suit, because “the record at summary judgment

indicated that most candidates who had the opportunity

to receive expanded contributions had done so”);

Pennell v. City of San Jose, 485 U.S. 1, 8, 108 S.Ct.

849, 99 L.Ed.2d 1 (1988) (“The likelihood of

enforcement, with the concomitant probability that a

landlord’s rent will be reduced below what he or she

would otherwise be able to obtain in the absence of the

Ordinance, is a sufficient threat of actual injury to

satisfy Art. III’s requirement that a plaintiff who

challenges a statute must demonstrate a realistic danger

of sustaining a direct injury as a result of the statute’s

operation or enforcement.” (internal quotation marks

and bracket omitted)); Duke Power Co. v. Carolina

Envtl. Study Group, Inc., 438 U.S. 59, 74, 98 S.Ct.

2620, 57 L.Ed.2d 595 (1978) (granting plaintiffs standing to challenge statute that capped liability for nuclear reactor accidents, because statute created incentives for defendant to build and operate nearby nuclear reactor that would release small quantities of radiation into the air and water, and injury from that radiation was “uncertain[ ]” but sufficiently likely); Baur v. Veneman, 352 F.3d 625 (2d Cir.2003) (granting plaintiff standing to challenge regulation that allowed downed cattle to be processed for human consumption, because it increased chances of plaintiff contracting disease from such meat).
*137 [4] Assessing whether a threatened injury, by itself, is sufficiently probable to support standing is a “qualitative, not quantitative” inquiry that is “highly case-specific.” Baur v. Veneman, 352 F.3d 625, 637 (2d Cir.2003) (internal quotation marks omitted). “[T]he question of whether anticipated future injury suffices to establish standing is approached as a question of judgment and degrees.” Wright, Miller & Cooper, supra, § 3531.4, at 264. Indeed, in future-injury cases, we have said that “the risk of harm necessary to support standing cannot be defined according to a universal standard.” Baur, 352 F.3d at 637.
One factor that bolsters a plaintiff’s argument that the injury is likely to come to pass, according to both the Supreme Court and this Court, is the existence of a policy that authorizes the potentially harmful conduct.20 However, the cases do not establish any talismanic, dispositive facts a plaintiff must plead in order to establish a certain threshold of probability. Some cases suggest that the risk of that harm need not be particularly high. See Massachusetts v. EPA, 549 U.S. 497, 525 n. 23, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (quoting Vill. of Elk Grove v. Evans, 997 F.2d 328, 329 (7th Cir.1993), as holding that “even a small probability of injury is sufficient to create a case or controversy—to take a suit out of the category of the hypothetical”). The probability required *138 “logically varies with the severity of the probable harm.” Baur, 352 F.3d at 637. Ultimately, courts consider the totality of the circumstances, and where a “plaintiff’s interpretation of a statute is ‘reasonable enough’ and under that interpretation the plaintiff ‘may legitimately fear that it will face enforcement of the statute,’ then the plaintiff has standing to challenge the statute.” Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir.2008), quoting Vt. Right to Life, 221 F.3d at 383.
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20

See Lyons, 461 U.S. at 106, 103 S.Ct. 1660 (Lyons

would have had standing if he could have alleged that

he would have another encounter with the police and

“that the City ordered or authorized police officers to

act in such manner.”); Baur, 352 F.3d at 637 (granting

plaintiff standing primarily on two “critical factors”: (1)

government studies and comments confirmed several of

the plaintiff’s central allegations; and (2) his “alleged

risk of harm arises from an established government

policy”); Deshawn E. by Charlotte E. v. Safir, 156 F.3d

340, 345 (2d Cir.1998) (finding standing for

plaintiffs—a certified class of children arrested on

possible delinquency charges who challenged the

policies and practices of a detective squad’s

interrogation of children facing possible delinquency

charges—in part because the challenged interrogation

methods “are officially endorsed policies,” which

creates “a likelihood of recurring injury because the

Squad’s activities are authorized by a written

memorandum of understanding between the

Corporation Counsel and the Police Commissioner”);

Curtis, 726 F.2d at 68 (denying plaintiffs standing

because no city policy authorized police officers to act

the way the plaintiffs alleged they had acted, and the

“plaintiffs have not alleged that it is likely that they will

be stopped by City police in the future and, for no

reason and without provocation, assaulted with mace

and not given treatment afterward”).

B. Application [5] The plaintiffs have established that they suffered present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harmful government conduct. They have asserted that the FAA permits broad monitoring through mass surveillance orders that authorize the government to collect thousands or millions of communications, including communications between the plaintiffs and their overseas contacts. The FAA is susceptible to such an interpretation, and the government has not controverted this interpretation or offered a more compelling one.21

21

At oral argument, the government contended that

required minimization procedures combined with the

fact that the government must convince an Article III

judge to approve any surveillance order “makes less

certain the injury here.” This line of argument might

shed light on the merits—on whether the government

surveillance authorized by the FAA is consistent with

the Constitution—but it does not directly dispute the

plaintiffs’ interpretation of the FAA’s scope.

It is significant that the injury that the plaintiffs fear results from conduct that is authorized by statute. This case is not like Lyons, where the plaintiff feared injury from officers who would have been acting outside the law, making the injury less likely to occur. Here, the fact that the government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized surveillance. It is fanciful, moreover, to question whether the government will ever undertake broad-based surveillance of the type authorized by the statute. The FAA was passed specifically to permit surveillance that was not permitted by FISA but that was believed necessary to protect the national security. See, e.g., 154 Cong. Rec. S227, 227–28 (daily ed. Jan. 24, 2008) (statement of Sen. Rockefeller) (explaining “why it is necessary for us to update” FISA); id. at 235 (statement of Sen. Hutchison) (explaining why surveillance authorization procedures must be updated). That both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur.
Furthermore, the plaintiffs have good reason to believe that their communications, in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct. The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor—i.e., individuals “the U.S. government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,” and “people located in geographic areas that are a special focus of the U.S. government’s *139 counterterrorism or diplomatic efforts.” The plaintiffs’ assessment that these individuals are likely targets of FAA surveillance is reasonable, and the government has not disputed that assertion.
On these facts, it is reasonably likely that the plaintiffs’ communications will be monitored under the FAA. The instant plaintiffs’ fears of surveillance are by no means based on “mere conjecture,” delusional fantasy, or unfounded speculation. Baur, 352 F.3d at 636 (to establish standing, a plaintiff “must allege that he faces a direct risk of harm which rises above mere conjecture”). Their fears are fairly traceable to the FAA because they
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are based on a reasonable interpretation of the challenged statute and a realistic understanding of the world. Conferring standing on these plaintiffs is not tantamount to conferring standing on “any or all citizens who no more than assert that certain practices of law enforcement offices are unconstitutional.” Lyons, 461 U.S. at 111, 103 S.Ct. 1660. Most law-abiding citizens have no occasion to communicate with suspected terrorists; relatively few Americans have occasion to engage in international communications relevant to “foreign intelligence.” These plaintiffs however, have successfully demonstrated that their legitimate professions make it quite likely that their communications will be intercepted if the government—as seems inevitable—exercises the authority granted by the FAA.
The government argues the plaintiffs have failed to establish standing because the FAA does not itself authorize surveillance, but only authorizes the FISC to authorize surveillance. As a result, the government says the plaintiffs must speculate about at least two intervening steps between the FAA and any harm they might suffer as a result of the government conducting surveillance: first, that the government will apply for surveillance authorization under the FAA, and, second, that the FISC will grant authorization.
But this argument fails. The presence of an intervening step does not, as a general rule, by itself preclude standing.22 Nor do the particular intervening steps the government identifies here—the government’s seeking authorization and the FISC’s approving it—preclude standing. With respect to the first step, as discussed above, it is more than reasonable to expect that the government will seek surveillance authorization under the FAA. We therefore cannot say that uncertainty about this step significantly attenuates the link between the FAA and the plaintiffs’ harms.

22

See, e.g., Massachusetts v. EPA, 549 U.S. at 516–26,

127 S.Ct. 1438 (granting plaintiff-state standing to

challenge EPA’s failure to regulate greenhouse gas

emissions from new vehicles because those emissions

contribute to global warming, which contributes to a

rise in sea level, which causes more frequent and severe

flooding, which damages coastal infrastructure); United

States v. Students Challenging Regulatory Agency

Procedures (SCRAP), 412 U.S. 669, 678, 683–90, 93

S.Ct. 2405, 37 L.Ed.2d 254 (1973) (granting plaintiffs

standing to challenge increase in railroad rate because it

would decrease use of recycled products, which would

adversely affect environment near plaintiffs and would

impair plaintiffs’ use of nearby forests, streams, and

mountains); Pacific Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir.2008) (“A plaintiff may satisfy the causation requirement if the complaint avers the existence of an intermediate link between the state regulations and the injury.” (internal quotation marks and brackets omitted)); Baur, 352 F.3d at 641 (granting plaintiff standing despite the fact that a “chain of contingencies may need to occur” for plaintiff to sustain feared injury).

Nor does the second intervening step add significant uncertainty. As discussed above, under the FAA the FISC must enter an order authorizing surveillance if the government submits a certification that conforms to the statutory requirements. *140 See 50 U.S.C. § 1881a(g)(2)(A), 1881a(i)(3)(a). The FAA does not require or even permit the FISC to make an independent determination of the necessity or justification for the surveillance. It verges on the fanciful to suggest that the government will more than rarely fail to comply with the formal requirements of the FAA once it has decided that the surveillance is warranted.
Empirical evidence supports this expectation: in 2008, the government sought 2,082 surveillance orders, and the FISC approved 2,081 of them. We do not know how many of these applications, if any, came after the FAA was enacted on July 10, 2008. At the very least, though, the evidence does not show that the FISC actually rejects a significant number of applications for FAA surveillance orders.23 Without a stronger showing that the FISC interposes a significant intervening step, we cannot find that the mere existence of this intervening step prevents the plaintiffs from obtaining standing to challenge the FAA.

23

Moreover, under the FAA the government can often

conduct surveillance without FISC authorization. In

exigent circumstances, for example, the government

may start wiretapping before applying for FISC

authorization, so long as the government applies for

authorization within 7 days. 50 U.S.C. § 1881a(c)(2),

1881a(g)(1)(B). In addition, if the FISC denies any

application for a surveillance order, the government

may conduct the applied-for surveillance while it

appeals the FISC denial. 50 U.S.C. § 1881a(i)(4)(B).

Because the plaintiffs’ undisputed testimony clearly establishes that they are suffering injuries in fact, and because we find those injuries are causally connected to the FAA—because they are taken in anticipation of future
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government action that is reasonably likely to occur—and are redressable by a favorable judgment,24 we find the plaintiffs have standing.

24

Neither the district court nor the parties discuss the

third

constitutional

standing

requirement—redressability—in any depth. To

demonstrate redressability, “a plaintiff must show the

substantial likelihood that the requested relief will

remedy the alleged injury in fact.” McConnell v. FEC,

540 U.S. 93, 225–26, 124 S.Ct. 619, 157 L.Ed.2d 491

(2003), overruled on other grounds by Citizens United

v. FEC, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753

(2010); see also Larson v. Valente, 456 U.S. 228, 243

n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (“[A]

plaintiff satisfies the redressability requirement when

he shows that a favorable decision will relieve a

discrete injury to himself.”). The requirement turns on

the “causal connection between the alleged injury and

the judicial relief requested.” Allen v. Wright, 468 U.S.

737, 753 n. 19, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

The plaintiffs have established that the relief they seek

would redress their asserted injuries in fact, because

their injuries stem from their reasonable fear of being

monitored by FAA-authorized government

surveillance, and if a court grants their requested

relief—an injunction prohibiting the government from

conducting surveillance under the FAA—the feared

surveillance would no longer be permitted and

therefore would, presumably, no longer be carried out.

IV. Indirectness of Harm The plaintiffs’ asserted economic and professional costs incurred to protect the confidentiality of their communications can be characterized as indirect injuries, because the FAA does not target the plaintiffs themselves and the plaintiffs incur injuries due to their responses, and the responses of the third-party individuals with whom they communicate, to the anticipated FAA-authorized surveillance of those individuals. The government argues that the indirectness of these injuries defeats the plaintiffs’ standing. We disagree.
A. Standard [6] The Supreme Court has made clear that “when the plaintiff is not himself the *141 object of the government action or inaction he challenges, standing is not precluded.” Summers, 129 S.Ct. at 1149 (2009) (internal quotation marks, brackets, and citation omitted); see also Lujan, 504 U.S. at 562, 112 S.Ct. 2130; accord Garelick

v. Sullivan, 987 F.2d 913, 919 (2d Cir.1993) (“A plaintiff does not lack standing merely because her injury is an indirect product of the defendant’s conduct.”). But a plaintiff who is indirectly harmed by a regulation needs to show more than does a plaintiff who is directly regulated by the challenged law:
When the suit is one challenging the legality of government action ..., the nature and extent of facts that must be averred (at the summary judgment stage) ... in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action ... at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, ... a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation ... of someone else, much more is needed.
Lujan, 504 U.S. at 561–62, 112 S.Ct. 2130 (emphasis in original). It is therefore “ordinarily substantially more difficult” to establish standing based on indirect injuries than on direct injuries. Summers, 129 S.Ct. at 1149 (internal quotation marks omitted).
[7] As a fundamental requisite to establishing standing, a plaintiff seeking standing on the basis of indirect injury must satisfy the three constitutional requirements for standing discussed above: (1) an injury in fact (2) that is causally related to the challenged statute or conduct and (3) is likely to be redressed by a favorable judicial decision. See Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130; Duke Power, 438 U.S. at 72, 98 S.Ct. 2620. Despite not being directly regulated, a plaintiff may establish a cognizable injury in fact by showing that he has altered or ceased conduct as a reasonable response to the challenged statute. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 184–85, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (granting environmental groups standing to sue a corporation under the Clean Water Act because the defendant corporation’s alleged environmental damage deterred members of the plaintiff organizations from using and enjoying certain lands and rivers). If the plaintiff makes such an allegation, he must identify the injury with “specificity,” Socialist Workers
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Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)
Party v. Att’y Gen., 419 U.S. 1314, 1319, 95 S.Ct. 425, 42 L.Ed.2d 627 (1974) (Marshall, Circuit Justice ), and he “must proffer some objective evidence to substantiate his claim that the challenged conduct has deterred him from engaging in protected activity,” Bordell v. Gen. Elec. Co., 922 F.2d 1057, 1061 (2d Cir.1991).
The plaintiffs have satisfied these requirements through their uncontroverted testimony that they have altered their conduct and thereby incurred specific costs in response to the FAA. As discussed above, we must accept that undisputed testimony, so the plaintiffs have established the first constitutional requirement for standing—an injury in fact.
The heart of the government’s challenge to the plaintiffs’ standing based on the indirectness of their injury—much like the government’s challenge to the plaintiffs’ standing based on the likelihood of future injury—goes to whether the plaintiffs’ injuries are causally connected to the challenged legislation. The causal chain linking the plaintiffs’ indirect injuries to the challenged legislation is similar to that discussed *142 above: it turns on the likelihood that the plaintiffs’ communications with the regulated third parties will be monitored. If the FAA does not make it likely that the plaintiffs’ communications with regulated third parties will be monitored, then the costs the plaintiffs have incurred to avoid being monitored are the product of their own decisions and are not sufficiently linked to the FAA; for this reason, they would not be “fairly traceable to the challenged action,” Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Conversely, if the plaintiffs’ communications with regulated third parties will likely be monitored despite the fact that the FAA does not directly regulate the plaintiffs, then those costs are sufficiently tied to the FAA to support standing.
The Supreme Court and this Court have frequently found standing on the part of plaintiffs who were not directly subject to a statute, and asserted only indirect injuries. Most notably, in Meese v. Keene, 481 U.S. 465, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987), the Supreme Court found standing in a plaintiff who, like the instant plaintiffs, was not directly regulated by the statute, and alleged only indirect injuries. The plaintiff, a lawyer and state legislator, challenged a statute that required certain films to be labeled “political propaganda.” Id. at 467, 107 S.Ct. 1862. The district court in that case made clear that “[a]ccording to the authoritative agency interpretation of the Act and the regulations, plaintiff [wa]s free to remove the [‘political propaganda’] label before exhibiting the films.” Keene v. Smith, 569 F.Supp. 1513, 1516

(E.D.Cal.1983); see also id. at 1519 (“[P]laintiff has no obligation with respect to the label, and ... is free to remove the label if he chooses.”). Hence, as in the instant case, the Meese statute did not directly regulate the plaintiff or require him to do, or refrain from doing, anything at all. The Meese plaintiff, however, was injured indirectly. He wanted to show three labeled films, but because he did “not want the Department of Justice and the public to regard him as the disseminator of foreign political propaganda,” he abstained from screening the films. Meese, 481 U.S. at 467–68, 107 S.Ct. 1862. He sued to enjoin the application of the statute to these films.
That the statute did not regulate him directly was no barrier to standing. The Court found he had established a cognizable harm by alleging “the need to take ... affirmative steps to avoid the risk of harm to his reputation.” Id. at 475, 107 S.Ct. 1862. This reaction was reasonable and was causally linked to the statute, because the plaintiff averred, with support from expert affidavits, that if he showed the films “his personal, political, and professional reputation would suffer and his ability to obtain re-election and to practice his profession would be impaired.” Id. at 473, 107 S.Ct. 1862. The Court approved the district court’s conclusion that “the Act puts the plaintiff to the Hobson’s choice of foregoing the use of the three Canadian films for the exposition of his own views or suffering an injury to his reputation.” Id. at 475, 107 S.Ct. 1862 (internal quotation marks omitted). Either way, the statute affected him in such a way as to give him standing to challenge it.
More recently, in Friends of the Earth v. Laidlaw, the Supreme Court recognized plaintiffs’ standing to challenge a corporation’s alleged Clean Water Act violation. The plaintiffs did not claim that the defendant took direct actions against them. Instead, they showed that because they feared exposure to the defendant’s pollution they had ceased to engage in certain recreational activities in the area, such as swimming, camping, and birdwatching. Friends of the Earth, 528 U.S. at 181–82, 120 S.Ct. 693. The Court found that the *143 plaintiffs’ decision to curtail those activities was “enough for injury in fact,” and found that the plaintiffs’ reactions were reasonable responses to the threat of exposure to pollution. Id. at 183–85, 120 S.Ct. 693.25

25

For other examples of cases finding standing in

plaintiffs who were not directly regulated by the

statutes they challenged and who asserted indirect

injuries, see Massachusetts v. EPA, 549 U.S. at 521–26,

127 S.Ct. 1438 (granting State of Massachusetts

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standing to challenge EPA’s refusal to regulate greenhouse gas emissions because those emissions contribute to global warming, which contributes to a rise in sea level, which causes more frequent and severe flooding, which damages coastal infrastructure); Duke Power, 438 U.S. at 73–78, 98 S.Ct. 2620 (granting organizations and individuals standing to challenge statute that capped liability for nuclear reactor accidents, because statute created incentives for defendant to build and operate nearby nuclear reactor that would release small quantities of radiation that would potentially have aesthetic, environmental, and health affects); SCRAP, 412 U.S. at 678, 683–90, 93 S.Ct. 2405 (granting environmental group standing to challenge increase in railroad rate because it would decrease use of recycled products, which would adversely affect environment near plaintiffs and would impair plaintiffs’ use of nearby forests, streams, mountains); Baur, 352 F.3d at 632–36 (granting individual standing to challenge FDA regulations of meat producers and processors based on alleged increased risk of contracting a food-borne illness).
These cases establish that a plaintiff has standing to challenge a statute that does not regulate him if he can show that the statute reasonably caused him to alter or cease certain conduct. In the instant case, the key to determining whether the plaintiffs have standing based on the indirect injuries they suffer is determining whether someone who wants to protect the privacy of his communications would reasonably take the measures these plaintiffs took not to be overheard.

B. Application [8] First, it is reasonable for the plaintiffs to take measures to avoid being overheard. The plaintiffs have established that, because of their legitimate needs to communicate with persons who will likely be subject to government surveillance under the FAA, they are likely to be monitored. Moreover, the various groups of plaintiffs—attorneys, journalists, and human rights, labor, legal, and media organizations—have established that they have legitimate interests in not being monitored. Since the plaintiffs allege that the FAA is unconstitutional, if the plaintiffs’ legal theory is correct, any search authorized by the FAA would be an illegal search that the plaintiffs would reasonably try to avoid.26

26

We emphasize again that we express no view with

respect to the ultimate correctness of the plaintiffs’

argument that the FAA violates the Constitution. The

only issue here is whether the plaintiffs have standing to present their argument to a court. That question requires us to ask whether the statute, if it is unconstitutional, would inflict any injury on the plaintiffs.

Moreover, each of the plaintiffs has alleged that the risk of being monitored causes additional injuries beyond the mere fact of being subjected to a putatively unconstitutional invasion of privacy. The risk of being monitored by the government threatens the safety of their sources and clients, impedes their ability to do their jobs, and implicates the attorneys’ ethical obligations. Journalists Klein and Hedges, for example, assert that if their communications with their sources were overheard, those sources’ identities, political activities, and other sensitive information would be disclosed, which would expose them to violence and retaliation by their own governments, non-state actors, and the U.S. government. Likewise, attorney Mariner asserts that if her communications *144 with human rights abuse victims on behalf of Human Rights Watch are monitored, the victims will draw unwanted attention to themselves and might risk further abuse. Attorneys Royce and McKay, who represent Guantanamo Bay prisoners and others, assert that they risk disclosing litigation strategies to the opposing party (the U.S. government) and violating ethical obligations if their communications with co-counsel, clients and their family members, experts, and investigators around the world are monitored.27 The plaintiffs act reasonably in trying to avoid these injuries.

27

Both the attorneys and the non-attorneys have reason to

fear being monitored under the challenged statute, so

both categories of plaintiffs are justified in taking

measures to avoid this injury. The attorneys argue that

their ethical duty obligates them to incur these

expenses. That is true, but it does not entitle the

attorneys to special treatment in this standing inquiry.

The attorneys’ ethical duty is triggered only when the

risk of surveillance reaches a certain threshold of

likeliness. But when that threshold is met, as it has been

here, the non-attorney plaintiffs also have reason to fear

being monitored, and they are equally justified in

taking measures to avoid what they contend is an illegal

search. The fact that an ethical obligation compels the

attorneys to take avoidance measures does not mean

that their taking those measures, in itself, is any more

reasonable than the other plaintiffs taking similar

measures for reasons other than ethical concerns.

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Since it is reasonable for the plaintiffs to seek to avoid being monitored, we must consider whether the particular measures they took were reasonable. They were. In some instances the plaintiffs did not communicate certain information they otherwise would have communicated by e-mail or telephone; and in other instances they incurred the costly burdens of traveling to communicate or to obtain that information in person rather than electronically. These are not overreactions to the FAA; they are appropriate measures that a reasonably prudent person who plausibly anticipates that his conversations are likely to be monitored, and who finds it important to avoid such monitoring, would take to avoid being overheard. The plaintiffs have therefore established that those injuries are linked to the statute they challenge.
In sum, the FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored. Either way, the FAA directly affects them.28

28

See Meese, 481 U.S. at 475, 107 S.Ct. 1862 (approving

the district court’s analysis that the plaintiffs have met

the standing requirement, in part, because the

challenged statute “puts the plaintiff to the Hobson’s

choice of foregoing the use of the three Canadian films

for the exposition of his own views or suffering an

injury to his reputation.” (internal quotation marks and

citation omitted)).

The Supreme Court has said that “the gist of the question of standing” is whether “the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker, 369 U.S. at 204, 82 S.Ct. 691. The instant plaintiffs are not merely random citizens, indistinguishable from any other members of the public, who want to test in court the abstract theory that the FAA is inconsistent with the Constitution; rather, these plaintiffs have shown that, regardless of which course of action they elect, the FAA affects them. We therefore conclude that they have a sufficient “personal stake” to challenge the *145 FAA. That does not mean that their challenge will succeed; it means only that the plaintiffs are entitled to have a federal court reach the merits of their challenge. We need not “decide whether appellants’ allegations ... will, ultimately, entitle them to any relief, in

order to hold that they have standing to seek it.” Baker, 369 U.S. at 208, 82 S.Ct. 691.
V. Laird v. Tatum The government’s principal arguments against the above analysis rest on a single case, Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). Laird is unquestionably relevant to this case, as it is the only case in which the Supreme Court specifically addressed standing to challenge a government surveillance program. Because Laird significantly differs from the present case, however, we disagree with the government’s contention that Laird controls the instant case, and that Laird created different and stricter standing requirements for surveillance cases than for other types of cases.
In Laird, the plaintiffs challenged a surveillance program that authorized the Army to collect, analyze, and disseminate information about public activities that had potential to create civil disorder. The Army collected its data from a number of sources, but most of it came from “the news media and publications in general circulation” or from “agents who attended meetings that were open to the public and who wrote field reports describing the meetings.” Laird, 408 U.S. at 6, 92 S.Ct. 2318. The Court noted that the court of appeals had characterized the information gathered as “nothing more than a good newspaper reporter would be able to gather by attendance at public meetings and the clipping of articles from publications available on any newsstand.” Id. at 9, 92 S.Ct. 2318 (internal quotation marks omitted). Roughly sixty government agents around the country participated in the surveillance program. Id. at 6–7, 92 S.Ct. 2318.
The plaintiffs sought to enjoin the program. They claimed that they “disagree[d] with the judgments” made by the Executive Branch about the scope of the surveillance program, id. at 13, 92 S.Ct. 2318, and they argued that “in the future it is possible that information relating to matters far beyond the responsibilities of the military may be misused by the military to [their] detriment,” id. at 9, 92 S.Ct. 2318. But the Court stated that the plaintiffs
[did] not attempt to establish this as a definitely foreseeable event, or to base their complaint on this ground. Rather, [the plaintiffs] contend[ed] that the present existence of this system of gathering and distributing information, allegedly far beyond the mission
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requirements of the Army, constitute[d] an impermissible burden on [them] and other persons similarly situated which exercise[d] a present inhibiting effect on their full expression and utilization of their First Amendment rights.
Id. at 10, 92 S.Ct. 2318 (internal quotation marks omitted).
The Court noted the court of appeals’s observation that the plaintiffs “have some difficulty in establishing visible injury.... They freely admit that they complain of no specific action of the Army against them ... There is no evidence of illegal or unlawful surveillance activities.” Id. at 9, 92 S.Ct. 2318 (citation and alteration omitted). The Court stated that any alleged chilling effect arose from the plaintiffs’ “perception of the system as inappropriate to the Army’s role under our form of government,” or the plaintiffs’ “beliefs that it is inherently dangerous for the military to be concerned with activities in the civilian sector,” *146 or the plaintiffs’ “less generalized yet speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to respondents.” Id. at 13, 92 S.Ct. 2318. Moreover, the Court noted that the plaintiffs had cast “considerable doubt” on whether the surveillance program had actually chilled them, id. at 13 n. 7, 92 S.Ct. 2318, and the plaintiffs did not identify any concrete harm inflicted by the program.
The Court therefore considered:
whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose.
408 U.S. at 10, 92 S.Ct. 2318 (emphasis supplied).
The Court denied plaintiffs standing. It held that the plaintiffs’ complaints about “the very existence of the Army’s data-gathering system” and their “[a]llegations of

a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Id. at 13–14, 92 S.Ct. 2318. The Court noted that although previous cases have found governmental regulations unconstitutional based on their “chilling” effect,
[i]n none of these cases, however, did the chilling effect arise merely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging. Id. at 11, 92 S.Ct. 2318.
The government argues that “[t]his case is directly governed by Laird,” because the only specific present harms the plaintiffs allege flow from a subjective chill. Laird, however, differs dramatically from this case.
In Laird, the plaintiffs did not clearly allege any injuries whatsoever. They did not claim that the government surveillance they sought to challenge, which relied principally on monitoring through publicly available sources activities conducted entirely in public, harmed them. They did not claim that they, or anyone with whom they regularly interacted, would be subject to any illegal or unconstitutional intrusion if the program they challenged was allowed to continue. Rather, they claimed only that they might be injured if the information lawfully collected by the military were misused in some unspecified way at some unspecified point in the future, and they alleged that the surveillance scheme had a chilling effect, while essentially admitting that they themselves had not been chilled, and that the program had not altered their behavior in any way.
21

Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)

By contrast, the instant plaintiffs clearly have alleged specific and concrete injuries. Unlike the Laird plaintiffs, they do not challenge a program of information gathering that they concede is lawful, on the theory that the information gathered may be misused in the future by government agents acting illegally and without authorization; rather, they challenge a specific statute that expressly authorizes surveillance *147 that they contend is in itself unconstitutional. They do not vaguely allege that they might be subject to surveillance under the program; rather, they set forth specific, concrete reasons to believe they are likely to be overheard, because their legitimate activities bring them into contact with the very types of people who are the professed targets of the statutorily authorized surveillance. And far from alleging an undefined “chill” that has not affected their own behavior in any way, they detail specific, reasonable actions that they have taken to their own tangible, economic cost, in order to carry out their legitimate professional activities in an ethical and effective manner, which can be done only by taking every precaution to avoid being overheard in the way that the challenged statute makes reasonably likely.29

29

See Socialist Workers Party, 419 U.S. at 1319, 95 S.Ct.

425 (Marshall, Circuit Justice ) (holding that, as

distinguishable from Laird, the plaintiffs’ allegations

were specific enough to satisfy the “threshold

jurisdictional question” of standing because “the

allegations are much more specific: the applicants have

complained that the challenged investigative activity

will have the concrete effects of dissuading some

[Young Socialist Alliance] delegates from participating

actively in the convention and leading to possible loss

of employment for those who are identified as being in

attendance.”).

This case is a far cry from Laird. In this case, as demonstrated above, the plaintiffs allege injuries that establish their standing consistent with the standing jurisprudence of the Supreme Court and this Court. In Laird, by contrast, the plaintiffs alleged no such injuries. Indeed, because the Laird plaintiffs offered so little by way of concrete injury, direct or indirect, Laird has little or nothing to say about the critical issue in this case: the reasonableness of the plaintiffs’ fear of future injury from the FAA, and the causal relation of the challenged statute to the tangible costs the plaintiffs claim they have incurred.
The government next argues, however, that even if Laird does not directly govern this case, it created special

standing rules for surveillance cases that are stricter than those that apply to other types of cases, and that those special rules preclude standing in this case. We disagree.
First, the government argues that under Laird a plaintiff may challenge a surveillance statute only if he is “subject to” that statute, meaning that he belongs to a narrow class of individuals the statute, on its face, identifies as targets. In support of this claim, the government relies on Laird’s comment that some previous plaintiffs who obtained standing to challenge a regulation that did not explicitly target them were able to do so because they were or would soon be “subject to the regulations, proscriptions, or compulsions” they challenged. Id. at 11, 92 S.Ct. 2318. The government thus argues that the instant plaintiffs cannot obtain standing to challenge the FAA, because the FAA “does not direct intelligence gathering activities against the plaintiffs. Nor does it authorize plaintiffs to be targeted.”30

30

The government points out that certain of our sister

circuits have read Laird to have created such a

requirement in surveillance cases. See ACLU v. NSA,

493 F.3d at 661 (Batchelder, J., lead opinion) (“[T]o

allege a sufficient injury under the First Amendment, a

plaintiff must establish that he or she is regulated,

constrained, or compelled directly by the government’s

actions, instead of by his or her own subjective chill.”);

Id. at 688 (Gibbons, J., concurring) (noting that “the

plaintiffs have failed to provide evidence that they are

personally subject to the surveillance program”);

United Presbyterian, 738 F.2d at 1378 (noting that the

plaintiffs are not subject to the challenged regulation

because “Executive Order No. 12333 issues no

commands or prohibitions to these plaintiffs, and sets

forth no standards governing their conduct”); Id. at

1380 (“[H]ere, as in [Laird ], no part of the challenged

scheme imposes or even relates to any direct

governmental constraint upon the plaintiffs....”).

Similarly, in the instant case, the district court held that

“[w]ithout showing that they are subject to the statute

they seek to challenge, the plaintiffs’ fear that they will

suffer harm from that statute is speculative and

hypothetical.” Amnesty Int’l, 646 F.Supp.2d at 647.

*148 Second, the government argues that Laird precludes standing based on chilling-effect injuries. The government notes that the Laird plaintiffs alleged that the existence of the Army’s surveillance program produced a chilling effect upon the exercise of their First Amendment rights, and the Court rejected that allegation as a ground for standing. The government adopts United Presbyterian’s interpretation of Laird, which says that in
22

Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)

order to obtain standing plaintiffs must show that they “suffer[ ] some concrete harm (past or immediately threatened) apart from the ‘chill’ itself,” such as denial of admission to the bar or termination of employment. United Presbyterian, 738 F.2d at 1378 (emphasis supplied).31 Relying on this interpretation of Laird, the government dismisses the economic and professional costs the plaintiffs have incurred because they “flow directly from the ‘subjective chill’ on plaintiffs’ speech caused solely by the existence of [the FAA].” The government says those injuries are “nothing more than a repackaged version of the ‘subjective chill’ that the Supreme Court found insufficient to establish standing in Laird.”

31

The government also cites ACLU v. NSA for a similar

interpretation of Laird. See ACLU v. NSA, 493 F.3d at

660 (Batchelder, J., lead opinion) (“I cannot subscribe

to a view that the reason the injury in Laird was

insufficient was because the plaintiffs alleged ‘only’

chilled speech and that, by something ‘more,’ the Laird

Court meant more subjective injury or other injuries

that derive from the chilled speech.”).

We are not persuaded that Laird created either of these special standing rules for surveillance cases. Since Laird is the only Supreme Court precedent in which a plaintiff who had not been surveilled claimed standing to challenge a surveillance scheme, it is natural to look to it for guidance. However, the government reads far more into Laird than either its facts or its language permit. In doing so, it loses sight of the general principles of standing.
First, the Laird plaintiffs so obviously lacked standing that the Court did not need to create stricter standing rules in the surveillance context in order to deny plaintiffs standing. The Laird plaintiffs identified no injury that they had suffered or would likely suffer. In the absence of any clear alleged injury, the Court could not find that the plaintiffs had satisfied the normal standing requirements, and it therefore did not need to invent new rules to reach that outcome. As we have demonstrated at length above, the facts of Laird are simply not comparable to those presented in the instant case. That the Laird plaintiffs were held to lack standing does not imply that the instant plaintiffs similarly have failed to allege injury. Any statement in Laird of a general rule applicable to all surveillance cases could only be dictum.
Second, Laird in fact contains no such purported special rules for surveillance cases. Nothing in Laird supports the

conclusion that the Court intended to change the standing rules, nor does it explain any need to create standing rules for surveillance cases distinct from the rules applicable in other contexts. To the contrary, Laird’s final sentence makes clear that the result in that case was dictated by the *149 well-established general principles of standing:

[T]here is nothing in our Nation’s history or in this Court’s decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.

Laird, 408 U.S. at 16, 92 S.Ct. 2318. The language quoted by the government—that some previous plaintiffs who obtained standing to challenge a regulation were or would soon be “subject to the regulations, proscriptions, or compulsions” they challenged, id. at 11, 92 S.Ct. 2318—does not purport to establish a fixed requirement for standing in the surveillance context or in any other; it merely contrasts the situation of the Laird plaintiffs with those of other plaintiffs who were found to have standing.

Third, while the government relies heavily on ACLU v. NSA and United Presbyterian to support its interpretation of Laird, those cases do not bind us, and they are factually distinguishable from the instant case.32 Moreover, we do not find their interpretations of Laird to be persuasive. They read Laird essentially the same way the government does, without explaining why we should read Laird to have ratcheted up the standing requirements in surveillance cases, sub silentio, where the plaintiffs at issue clearly lacked standing under the normal rules. We do not see any reason why the law of standing should be stricter or different in the surveillance context, and those cases do not offer any such reasons.

32

In ACLU v. NSA, the plaintiffs challenged a narrow

surveillance program that monitored particular

individuals the government suspected were associated

with al Qaeda. 493 F.3d at 647 (Batchelder, J., lead

opinion). The FAA, by contrast, authorizes a

considerably broader surveillance program. This fact

increases the likelihood that the instant plaintiffs will be

harmed in the future, which is a key consideration in

determining whether the plaintiffs should have standing

to challenge the underlying statute. In United

Presbyterian, the plaintiffs challenged an executive

order that, inter alia, established procedures for the FBI

and other intelligence agencies to divide their

23

Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2011)
overlapping surveillance duties. The D.C. Circuit said the plaintiffs essentially challenged the “constitutionality of the entire national intelligence-gathering system.” 738 F.2d at 1381. But, unlike the instant plaintiffs, the United Presbyterian plaintiffs failed to establish any particular risk that they would be surveilled under the executive order they challenged. Id. at 1380.

Under the traditional, well-established rules of standing, the plaintiffs here have alleged that they reasonably anticipate direct injury from the enactment of the FAA because, unlike most Americans, they engage in legitimate professional activities that make it reasonably likely that their privacy will be invaded and their conversations overheard—unconstitutionally, or so they argue—as a result of the surveillance newly authorized by the FAA, and that they have already suffered tangible, indirect injury due to the reasonable steps they have undertaken to avoid such overhearing, which would impair their ability to carry out those activities. Nothing more is required for standing under well-established principles. And nothing in Laird, where the plaintiffs alleged no comparable injury, purports to change those principles.33

33

We are not alone in so reading Laird. See Socialist

Workers Party, 419 U.S. at 1318, 95 S.Ct. 425

(Marshall, Circuit Justice ) (“The Government has

contended that under Laird, a chilling effect will not

give rise to a justiciable controversy unless the

challenged exercise of governmental power is

regulatory, proscriptive, or compulsory in nature, and

the complainant is either presently or prospectively

subject to the regulations, proscriptions, or compulsions

that he is challenging. In my view, the Government

reads Laird too broadly. In the passage relied upon by

the Government, the Court was merely distinguishing earlier cases, not setting out a rule for determining whether an action is justiciable or not.” (internal quotation marks and citations omitted)); see also Meese, 481 U.S. at 472–74, 107 S.Ct. 1862 (Laird’s prohibition of standing based on “subjective chill” does not preclude standing for plaintiff who alleged that his showing of films was chilled by a statute that required certain films to be labeled “political propaganda.”); Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 522–23 (9th Cir.1989) (holding Laird does not apply where the alleged effect of INS surveillance on churches is “not a mere subjective chill” on worship activities but is “concrete, ... distinct and palpable”); Ozonoff v. Berzak, 744 F.2d 224, 229–30 (1st Cir.1984) (Breyer, J.) (Laird permits standing when the challenged activity “reasonably [leads] [plaintiff] to believe” he must alter his behavior).
*150 CONCLUSION
The plaintiffs’ uncontroverted testimony that they fear their sensitive international electronic communications being monitored and that they have taken costly measures to avoid being monitored—because we deem that fear and those actions to be reasonable in the circumstances of this case—establishes injuries in fact that we find are causally linked to the allegedly unconstitutional FAA. We therefore find that plaintiffs have standing to challenge the constitutionality of the FAA in federal court.

24

 
 Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

667 F.3d 163 United States Court of Appeals,
Second Circuit.
AMNESTY INTERNATIONAL USA et al., Plaintiffs–Appellants, v.
James R. CLAPPER, Jr. et al., Defendants–Appellees.
No. 09–4112–cv. | Sept. 21, 2011.
Attorneys and Law Firms
Jameel Jaffer, American Civil Liberties Union Foundation, New York, N.Y. (Melissa Goodman and Laurence M. Schwartztol, American Civil Liberties Union Foundation, New York, NY; Christopher T. Dunn and Arthur N. Eisenburg, New York Civil Liberties Union Foundation, New York, NY; Charles S. Sims, Theodore K. Cheng, Matthew J. Morris, Proskauer Rose LLP, New York, NY), for Appellants.
Douglas N. Letter and Daniel J. Lenerz, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C. (Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C.; Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, Sarah S. Normand and Serrin Turner, Assistant United States Attorneys for the Southern District of New York, New York, NY), for Appellees.
Opinion
GERARD E. LYNCH, Circuit Judge, concurs by opinion in the denial of rehearing in banc.
REENA RAGGI, Circuit Judge, joined by DENNIS JACOBS, Chief Judge, JOSÉ A. CABRANES, RICHARD C. WESLEY, and DEBRA ANN LIVINGSTON, Circuit Judges, dissents by opinion from the denial of rehearing in banc.
*164 DEBRA ANN LIVINGSTON, Circuit Judge, joined by DENNIS JACOBS, Chief Judge, JOSÉ A. CABRANES, REENA RAGGI, and RICHARD C. WESLEY, Circuit Judges, dissents by opinion from the

denial of rehearing in banc.
DENNIS JACOBS, Chief Judge, dissents by opinion from the denial of rehearing in banc.
PETER W. HALL, Circuit Judge, dissents by opinion from the denial of rehearing in banc.

ORDER
Following disposition of this appeal on March 21, 2011, Defendants–Appellees James R. Clapper, Jr. et al. filed a petition for rehearing in banc. A poll of the active members of the Court having been conducted, and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

GERARD E. LYNCH, Circuit Judge, concurring in the denial of rehearing en banc:
While I usually consider opinions concurring in a denial of en banc review unnecessary, I write briefly in response to my colleagues’ dissents from denial of rehearing en banc because, in the absence of any panel dissent, some of their criticisms have not previously been aired. For the most part, the panel opinion speaks for itself; answers to nearly all of the dissents’ points can be found there. See Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir.2011). Nevertheless, I take this opportunity to respond directly to a few points.1

1

As senior judges, Judges Calabresi and Sack—the other

members of the panel that heard the appeal—are not

eligible to participate in deciding whether to grant a

petition for rehearing en banc.

As an initial matter, I agree with the dissenters that this case clearly satisfies Federal Rule of Appellate Procedure 35(a)(2)’s exceptional-importance requirement. And I acknowledge that it may be in some tension with opinions from other circuits (although, as discussed below, those cases are largely distinguishable from this one). But I dispute the dissenters’ assertions that Amnesty somehow distorts the law of standing or, in Judge Livingston’s words, “threatens a sub silentio transformation of this Circuit’s case law.” Livingston, J., Op. Dissenting from Denial of Reh’g En Banc (“Livingston, J., Op.”), post at
1

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
[193–94]; see also Raggi, J., Op. Dissenting from Denial of Reh’g En Banc (“Raggi, J., Op.”), post at [173–74]. Standing cases are inherently fact specific, and the panel opinion takes pains to make clear that our conclusions regarding standing were limited to this statute, these plaintiffs, and the facts of this case. Furthermore, for the reasons articulated in the panel opinion and below, Amnesty fully coheres with established standing doctrine and does not represent a departure from our controlling precedents.

I. Summary Judgment Standard
A theme that runs through all of the dissents is that the panel should have treated the plaintiffs’ averments more skeptically. One dissent, for example, criticizes us for our overly “credulous[ ]” and insufficiently skeptical reading of the record. See Jacobs, C.J., Op. Dissenting from Denial of Reh’g En Banc (“Jacobs, C.J., Op.”), post at [201]; see also Raggi, J., Op., post at [183–86]. But any “credul[ity]” displayed by the opinion reflects not any naïveté on the part of the panel, but the requirements of the procedural posture of the case. The case came to us *165 on summary judgment, and the government expressly chose to accept the plaintiffs’ allegations as true for purposes of the standing motion.2 Thus, the panel opinion reviews the record as we are required to review it: accepting the plaintiffs’ allegations as true, drawing all reasonable factual inferences in their favor, and viewing their factual assertions in the light most favorable to them. As this Court has long held, even if evidence “greatly taxes the credulity of the judge,” that alone does not justify a grant of summary judgment. See Arnstein v. Porter, 154 F.2d 464, 469 (2d Cir.1946) (citation omitted).

2

See Amnesty, 638 F.3d at 129 (“The government did

not submit any evidence of its own either in opposition

to the plaintiff’s submissions, or in support of its own

summary judgment motion. Additionally, at oral

argument on the summary judgment motions, the

government said it accepted the factual submissions of

the plaintiffs as true for purposes of those motions.”);

id. at 141 (“The plaintiffs have ... testi[fied] that they

have altered their conduct and thereby incurred specific

costs in response to the FAA. As discussed above, we

must accept that undisputed testimony....”); see also

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112

S.Ct. 2130, 119 L.Ed.2d 351 (1992) (on summary

judgment, evidence to support standing “will be taken

to be true”).

Judge Raggi points out, correctly, that where the court’s subject matter jurisdiction is at issue, as in the case of constitutional standing, courts have an “ ‘independent obligation’ ” to question even undisputed facts, necessary to the court’s jurisdiction, that are asserted by parties. Post at [186] (quoting Ariz. Christian Sch. Tuition Org., v. Winn, –––U.S. ––––, ––––, 131 S.Ct. 1436, 1454, 179 L.Ed.2d 523 (2011)). Certainly, parties cannot confer jurisdiction on the court by stipulating to facts that are false. But this is hardly an example of collusive stipulation to facts that, as Chief Judge Jacobs would have it, are fanciful. See post at [200–01, 201–02, 202–03]. As the panel opinion carefully notes, the plaintiffs’ sworn testimony about their activities, and about their reasons for believing that their communications are likely to be intercepted if the government uses the authority provided by the FAA, are anything but implausible.
There is no reason to believe that the government, which vigorously contests standing, is collusively declining to challenge the plaintiffs’ factual presentation in order to obtain a decision on the merits by creating an illusion of jurisdiction on the part of the court. The court’s obligation to question assertions of fact does not extend permission for judges to substitute their own beliefs—derived from their own notions about what is and is not likely to be true—about the truth of the sort of ordinary factual matters that are eminently determinable by the usual factfinding processes of the court, but that the moving party (and especially the government, which has ample resources to litigate those matters) declines to challenge.
Because the plaintiffs’ facts were uncontroverted, they necessarily constituted the main basis on which the panel could assess standing. There is precedent for declining to rule on standing and remanding the issue to the district court. See, e.g., Fund for Animals v. Babbitt, 89 F.3d 128, 134 (2d Cir.1996). But in that case, the issue of standing “was neither ruled on by the district court nor fully briefed by the parties.” Id. In Amnesty, by contrast, the standing issue was ruled on by the district court and fully briefed by both sides. The panel fully satisfied its “independent obligation” to assess the plaintiffs’ standing.
II. The Statute
The dissenters go to great lengths to downplay the
2

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
significance of the changes *166 contained in the FISA Amendments Act (“FAA”), and to suggest that the panel somehow misinterpreted the statute’s scope or operation. See, e.g., Raggi, J., Op., post at [188–89].
As the panel opinion explains, the FAA indisputably and significantly broadens the risk of interception, lowers the government’s probable-cause burden, and decreases the oversight role of the Foreign Intelligence Surveillance Court (“FISC”). Prior to the FAA, the government was required to identify its specific surveillance targets to the FISC. The FISC would issue a warrant only if it found there was probable cause that the target was a foreign power or an agent of a foreign power, and that the target was using or about to use the facility to be monitored. In other words, the FISC had to find probable cause for each specific search, and maintained a continuing oversight role after each probable-cause determination. See Amnesty, 638 F.3d at 122–24.
The FAA significantly alters these procedures. Under Section 702 of the FAA, the FISC need only find that the government’s general procedures comply with the statute’s subsections and with the Fourth Amendment; the probable-cause determinations are no longer particularized. The Attorney General no longer needs to identify specific surveillance targets to the FISC. See 50 U.S.C. § 1881a(g)(4). The FAA requires him (and the Director of National Intelligence) only to provide “written certification” that targets are outside the United States. Id. § 1881a(g)(1)(A). The FISC, in order to issue a warrant, must find only that the executive’s targeting procedures are “reasonably designed to” (i) ensure that any acquisition conducted under the authorization “is limited to targeting persons reasonably believed to be located outside the United States,” and (ii) “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” Id. § 1881a(i)(2)(B). The FISC no longer considers individual surveillance applications, but rather is charged only with overseeing whether the agency has complied with FISA’s general procedural requirements. Id. § 1881a(i)(2), (3)(A). The dissents make much of the FAA’s requirement that the FISC determine whether the government’s procedures comply with the Fourth Amendment, but, again, under the FAA that analysis is limited to the government’s general procedures. Unlike the prior FISA regime, the FISC plays no role in reviewing the basis for any particular surveillance undertaken by the government.3

3

In making this point, I in no way suggest that such a

specific review is constitutionally required. That is one

of the issues to be addressed on the merits. The point is

only that the FAA changes the prior regime, in a way

that adversely affects the plaintiffs’ situation and makes

surveillance easier and therefore more likely.

Additionally, as the opinion explains, “[u]nder the FAA, in contrast to the preexisting FISA scheme, the FISC may not monitor compliance with the targeting and minimization procedures on an ongoing basis. Instead, that duty falls to the AG and [Director of National Intelligence], who must submit their assessments to the FISC, as well as the congressional intelligence committees and the Senate and House Judiciary Committees.” Amnesty, 638 F.3d at 125 (citing 50 U.S.C. § 1881a(l )(1)).
The government itself admits that the FAA differs significantly from the previous version of FISA. In its petition for rehearing en banc, the government notes, for example, that “[u]nlike traditional FISA *167 surveillance, Section 702 does not require the Government to establish individualized probable cause or to identify the specific facilities at which the acquisition will take place.” Pet. for Reh’g 4. Indeed, Congress presumably would not have bothered to amend FISA if the new version of the statute were not appreciably different from the old. And as the opinion makes clear, proponents of the statute argued that it was necessary precisely because it made possible expanded surveillance that would not have been permitted under prior law. See Amnesty, 638 F.3d at 122; see also 154 Cong. Rec. H5756 (daily ed. June 20, 2008) (statement of Rep. Smith); 154 Cong. Rec. S6178–79 (daily ed. June 26, 2008) (statement of Sen. Graham). Nor did the government ever “identify what is wrong with the plaintiffs’ interpretation [of the FAA], or what a more appropriate interpretation would be. At oral argument, we asked the government to clarify what it found inaccurate in the plaintiffs’ characterization, and again it failed to do so.” Amnesty, 638 F.3d at 128 n. 8.4 At no point has the government explained why the plaintiffs’ or the panel’s characterization of the FAA is inaccurate.

4

As noted in the panel opinion, the plaintiffs alleged that

under the FAA, “an acquisition order could seek, for

example, ‘[a]ll telephone and e-mail communications to

and from countries of foreign policy interest—for

example, Russia, Venezuela, or Israel—including

3

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
communications made to and from U.S. citizens and residents.’ Moreover, the specific showing of probable cause previously required, and the requirement of judicial review of that showing, have been eliminated. The government has not directly challenged this characterization.” Amnesty, 638 F.3d at 126.

III. Standing

Turning to the standing analysis, it is common ground that

standing requires injury in fact, causation, and

redressability. The dissents seem to suggest that the

opinion somehow muddles these well-established

requirements, see, e.g., Livingston, J., Op., post at

[195–99], when in fact the opinion analyzes each element

separately and in detail, see Amnesty, 638 F.3d at 131–45.

The plaintiffs demonstrated present injuries in fact by

“alleg [ing] ... the expenditure of funds.” Id. at 133. Their

declarations—which, as discussed previously, we are

bound to accept as true and which the government

accepted

for

purposes

of

summary

judgment—“establish[ed] that they have already incurred

professional and economic costs to avoid interception.”

Id. The plaintiffs satisfied the causation requirement

because “the professional and economic harms [they]

suffered ... were fairly traceable to the FAA.” Id. at 134.

And they demonstrated redressability because the discrete

injury of which they complained—the increased

likelihood of interception specifically caused by the

FAA—would be relieved by a decision in their favor. See

id. at 140 n. 24.

The dissents also seem to misunderstand our injury analysis. The opinion addresses two different theories of injury: present injury and future injury. As to present injuries, the opinion explains that the plaintiffs’ undisputed (for purposes of this motion) economic and professional harms are an injury in fact, and the same analysis that supports the conclusion that the plaintiffs’ present-injury theory satisfies the causation prong further supports the conclusion that the plaintiffs’ future-injury theory properly satisfies the injury-in-fact prong. See id. at 133–40.

Furthermore, it is emphatically not the case that, as one dissent contends, “[t]he panel opinion bases its finding of injury and causation entirely on the ethical duties of lawyers and the affidavits of the lawyer *168 plaintiffs.” Jacobs, C.J., Op., post at 201]. The opinion makes

abundantly clear that the panel’s analysis is not focused exclusively on lawyers. The plaintiffs’ evidence of sensitive communications affected by the statute, cited in detail in the opinion, concerned journalists as well as lawyers, and referred to numerous categories of conversations of a sort not limited to attorneys.5 Indeed, the panel concluded that a lawyer’s ethical duties and a journalist’s prudent exercise of her role brought us to the same conclusion—that is, all of the plaintiffs reasonably incurred professional and economic costs in order to protect clients or sources.6

5

See, e.g., Amnesty, 638 F.3d at 127 (“The plaintiffs’

[undisputed] evidence tended to show that their work

‘requires them to engage in sensitive and sometimes

privileged telephone and e-mail communications with

colleagues, clients, journalistic sources, witnesses,

experts, foreign government officials, and victims of

human rights abuses located outside the United States.’

”); id. at 127 n. 11 (“Journalist Naomi Klein ...

communicates with sources abroad, including Mexican

individuals regarding military activity in Chiapas,

Argentinian advocates for indigenous rights, and

indigenous Colombian groups who oppose U.S. trade

policies. Likewise, journalist Chris Hedges, whose

writing focuses on American and Middle Eastern

politics and society, maintains regular contact with

academics, journalists, politicians, and activists in

places such as Iran, Syria, Libya, Kosovo, Bosnia, and

Sudan. He also communicates with political activists

and civil society leaders in Palestine, whom he believes

are ‘of interest’ to the U.S. government.”); id. at 143

(“[T]he various groups of plaintiffs—attorneys,

journalists, and human rights, labor, legal, and media

organizations—have established that they have

legitimate interests in not being monitored.”); id.

(“Journalists Klein and Hedges, for example, assert that

if their communications with their sources were

overheard, those sources’ identities, political activities,

and other sensitive information would be disclosed,

which would expose them to violence and retaliation by

their own governments, non-state actors, and the U.S.

government.”); id. at 144 n. 27 (“Both the attorneys and

the non-attorneys have reason to fear being monitored

under the challenged statute....”).

6

Judge Livingston argues that these plaintiffs have

suffered no actual or imminent harm. Post at [193–95].

If I simply answer, as she contends, “Not so,” that is

because it simply is not so. The plaintiffs have sworn

that they have suffered harm, in that it has become

more difficult and expensive to practice their

professions as a result of the enactment of the FAA,

4

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

and the government has chosen not to contest that evidence. The dissenters’ argument is not that these costs have not been imposed upon the plaintiffs, but that the courts should not recognize this kind of harm as conferring standing. That argument is not unreasonable; the question is a close one. But it should not be pretended that these harms do not exist, or that the requirement that only persons with a concrete stake in the matter may seek judicial relief is violated in some unquestionable way when persons whose lives and occupations have been affected by changes in the law are permitted to raise constitutional objections to those changes. The decision to close the courthouse door to such claims is an exercise of judicial power that must stand or fall on the strength of the proffered reasons why such harm does not satisfy the purposes of the standing rule. For the reasons stated in the panel opinion, it will not do to write off the plaintiffs as simply folks who, unhappy with the Congress’s resolution of the policy arguments for and against the FAA, seek to continue the political “discussion,” Raggi, J., Op., post at [174 n. 3]. As the standing doctrine requires, they are people who assert that the law has specifically affected them in a way that gives them a concrete stake in the controversy, and thus a right to present their arguments (persuasive or otherwise) that the statute infringes rights conferred on them by the Constitution.

Next, one of the dissents submits that “any burden imposed on plaintiffs by the risk of [FAA-authorized] surveillance arose under the pre-FAA regime as well.” Jacobs, C.J., Op. 202. But for the reasons already discussed, and as explained in detail in the opinion, the FAA significantly broadens the risk of interception beyond *169 that which existed under the previous version of FISA. Furthermore, as explained in the panel opinion, because the government “accepted the factual submissions of the plaintiffs as true for purposes of [the summary judgment] motions,” we “must accept the plaintiffs’ evidence as undisputed explanations of how the FAA has affected them.” Amnesty, 638 F.3d at 129.7

7

See also Amnesty, 638 F.3d at 129 n. 13 (“At oral

argument on this appeal, the government professed

itself ‘puzzled’ as to why the plaintiffs had not been

just as nervous about being monitored before the FAA

was enacted as they are now. To the extent that that

statement questioned whether the plaintiffs genuinely

fear being monitored after the FAA’s enactment more

than they did before it, the government cannot raise that

challenge on appeal.... The time to challenge the

accuracy of the plaintiffs’ assertions in their

declarations has passed. The government could have filed its own evidence, or sought an evidentiary hearing on the accuracy of the plaintiffs’ claims, but it did neither.”).

The dissents further contend that the plaintiffs lack standing because their asserted injuries are not redressable. See Jacobs, C.J., Op., post at [202–03]; Raggi, J., Op., post at [189–93]. But the plaintiffs’ uncontroverted testimony indicated that their contacts believed they were more likely to be monitored under the FAA than under the previous version of FISA. In their Local Rule 56.1 Statement—which, I repeat at risk of redundancy, the government declined to dispute—the plaintiffs said that “the threat of surveillance under the new law has a much greater impact on their work than previous U.S. government surveillance.” Amnesty, 638 F.3d at 129 n. 13 (internal quotation marks and alterations omitted). Thus, we concluded that the plaintiffs had “established that the relief they seek would redress their asserted injuries in fact, because their injuries stem from their reasonable fear of being monitored by FAA-authorized government surveillance, and if a court grants their requested relief—an injunction prohibiting the government from conducting surveillance under the FAA—the feared surveillance would no longer be permitted and therefore would, presumably, no longer be carried out.” Id. at 140 n. 24.8

8

Judge Raggi appears to question whether plaintiffs can

assert a Fourth Amendment right not to be surveilled,

given that any surveillance authorized by the FAA

would not have targeted them, rendering them mere

“coincidental interceptees.” Post at [178]. This seems to

be a question about the merits of the plaintiffs’ claims,

rather than about their standing to make them. Plaintiffs

claim that they have a right not to have their

conversations intercepted by surveillance that is not

based on specifically targeted probable cause. The

merits of this claim, especially given the urgent

justifications for the surveillance likely to be asserted

by the government, may well be questionable. But

Judge Raggi’s suggestion that United States v. White,

401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971),

disqualifies “coincidental interceptees” from asserting a

Fourth Amendment interest is unpersuasive. White

rejected a Fourth Amendment claim by a person who

voluntarily confided in an acquaintance who voluntarily

recorded the conversation and reported it to the

authorities. Such consensual recording is not analogous

to non-consensual interception. If the mere fact that the

targets of the surveillance, as non-United States persons

5

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
abroad, have no right to contest electronic surveillance of their conversations entailed that no American who was overheard could object to the surveillance either, plaintiffs would not have standing even if they knew for certain they had been intercepted, and American citizens’ conversations with foreigners abroad would have no protection whatsoever.
In addition, contrary to the dissents’ contentions, see, e.g., Jacobs, C.J., Op., post at [202–03], to establish redressability the plaintiffs need not show that a judgment in their favor would prevent all possible interception, or that they would not suffer injuries under the pre-FAA version *170 of FISA. “[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” Larson v. Valente, 456 U.S. 228, 244 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). Where a challenged action increases an already extant risk of harm to a plaintiff, the elimination of that action would redress the harm it causes—even if it does not eliminate the preexisting risk. Massachusetts v. EPA, 549 U.S. 497, 525–26, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007).
The dissents also make much of the timing of the plaintiffs’ challenge, pointing out that the plaintiffs filed their suit on the same day that the FAA was passed. This fact is not unusual in the context of a facial challenge, and in any event has no bearing on whether the plaintiffs could have suffered actual injury as a result of the government’s use of its authority under Section 702. Indeed, there would seem to be no difference between the “reasonable likelihood” that the plaintiffs will be surveilled under the FAA on day one of the FAA’s effect and the likelihood that they will be surveilled on any other day in the future.
Finally, the dissents repeatedly characterize as “speculative” the plaintiffs’ assertion that their overseas contacts are likely to be government targets under the FAA. This characterization is hard to take seriously. As the opinion explains, the plaintiffs’ overseas contacts include, for example, alleged Al Qaeda members (and Guantanamo detainees) Khalid Sheik Mohammed and Mohammedou Ould Salahi, as well as those men’s families. See Amnesty, 638 F.3d at 127 n. 11. Furthermore, as discussed above, the government accepted the plaintiffs’ factual submissions as true for summary judgment purposes, and never submitted evidence of its own. The plaintiffs reasonably asserted

that their contacts were “likely targets of FAA surveillance,” and the government never “disputed that assertion.” Id. at 139.9 The plaintiffs here, in short, have incurred present, concrete costs, because their fear of being subjected to surveillance is reasonable.10

9

Judge Raggi argues that the plaintiffs “can only

speculate” about whether FAA surveillance of

themselves or their foreign contacts is “certainly

impending,” notwithstanding that she “assumes” that

the executive will exercise FAA authority, which, she

further assumes, encompasses “dragnet surveillance.”

Post at [187]. The contradiction is palpable. How can

the costs and burdens asserted by plaintiffs be

denigrated as “self-inflicted,” Livingston, J., Op., post

at [195],when it is assumed that the FAA authorizes

secret “dragnet surveillance” centered on targets that

these specific plaintiffs (as distinct from most

Americans) have legitimate reasons to engage? Of

course, given the necessarily secret nature of the

interceptions authorized by the FAA, the plaintiffs

almost certainly will never know with the certainty and

specificity demanded by Judge Raggi that their

conversations have been overheard as a result of FAA

surveillance orders. But on the assumptions that Judge

Raggi makes—which seem to me unquestionably

correct—the plaintiffs have every reason to believe that

such interceptions will occur, and to take costly and

burdensome steps in the present if they wish to avoid

that result. Their professional lives have thus been

directly affected by the existence of the FAA.

10

In contrast, the plaintiff in City of Los Angeles v. Lyons,

461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983),

could not, as Judge Raggi suggests, post at [179–80],

have given himself standing by choosing to move out

of the city, precisely because he did not have any

reasonable expectation that he would be subjected to

chokehold tactics in the future.

IV. Circuit Split
Judge Raggi contends that the panel opinion creates a circuit split concerning the standards for “evaluating standing to challenge foreign intelligence surveillance *171 programs.” Raggi, J., Op., post at [174]; see also id. at [186–88]. While I concede that Amnesty is in some tension with United Presbyterian Church v. Reagan, 738 F.2d 1375 (D.C.Cir.1984), and ACLU v. NSA, 493 F.3d 644 (6th Cir.2007)—the two principal cases with which
6

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
the dissenters argue that Amnesty creates a circuit conflict—Amnesty is nevertheless distinguishable in several ways from those cases. I will describe a few points of distinction here; the panel opinion itself provides a fuller discussion. See Amnesty, 638 F.3d at 148–49.
United Presbyterian Church concerned a “generalized challenge” to “the constitutionality of the entire national intelligence-gathering system,” 738 F.2d at 1381 (internal quotation marks omitted), whereas the present case involves a specific challenge to a specific statute. Furthermore, the D.C. Circuit found that the plaintiffs’ injuries were not concrete, but amounted to little more than a subjective “chilling effect.” Id. at 1378–80. In the present case, by contrast, the plaintiffs have attested that they suffered concrete harms—including the expenditure of funds—and the government has not offered contrary evidence.
ACLU v. NSA is similarly distinguishable, as it involved a challenge not to specific legislation, but rather to the National Security Agency’s warrantless wiretap program, which targeted individuals the government believed to be associated with Al Qaeda. 493 F.3d at 648. In the present case, by contrast, the plaintiffs challenge a statute that, they argue, “permits dragnet surveillance—including surveillance directed at entire geographic areas.” Appellants’ Br. 48. They contend that under such a “dragnet,” their communications “are far more likely to be acquired ... than under a program of individualized surveillance that focuses solely on the communications of terrorism suspects,” and that dragnet surveillance poses “far graver” consequences to them than the warrantless wiretapping posed to the plaintiffs in ACLU v. NSA. Id. Additionally, in that case, the government argued that it would not be able to address the question of standing without disclosing state secrets. ACLU v. NSA, 493 F.3d at 650. As the Amnesty plaintiffs correctly point out, in the present case “the government has not invoked the state secrets privilege and has not controverted plaintiffs’ assertion that their communications are likely to be acquired under the statute.” Appellants’ Br. 49.
The dissents also insist that the panel opinion defies Supreme Court and Second Circuit precedents. See, e.g., Raggi, J., Op., post at [173] (the panel opinion is “wholly at odds with Supreme Court precedent”); Livingston, J., Op., post at [194] (“in frank disregard of clear Supreme Court authority”). The panel opinion articulates its reasoning in great detail and explains why our holding comports with relevant Supreme Court and Second Circuit precedent. See Amnesty, 638 F.3d at 131–49. I will

therefore let those portions of the opinion speak for themselves.
* * *
The critical inquiry for standing is whether the plaintiffs are simply citizens with an abstract claim that some action was unlawful, or whether they, in some particular respect not shared by every person who dislikes the action, are injured by that action. Here, the plaintiffs have shown that the very existence of an expanded authority for the government to monitor electronic communications with foreigners leads them reasonably to fear that their communications will be intercepted, and that this fear inhibits their lawful activities and requires them to take costly actions to avoid such interception. *172 The government, despite every opportunity to contest the plaintiffs’ factual claims, chose to accept them as true. Nor does the government dispute that the new authority provided by the FAA expands the government’s authority to wiretap and reduces judicial supervision of such surveillance.
The suggestion that the government is not certain to use that authority—which was sought and provided by Congress on the ground that it was necessary to protect the national security—is fanciful. And in any event the harm claimed by the plaintiffs is not simply that their communications may be intercepted, but that the very existence of the authority to intercept them itself causes the harm of which they complain. The plaintiffs therefore are not just people who don’t like the law; they are people who reasonably contend that the law imposes a burden on them.
It is important to remember what is at stake here. The government contends, with great facial plausibility, that the law is fully consistent with the Fourth Amendment’s prohibition of unreasonable searches and seizures, because the paramount necessity of protecting the nation’s security against very real and dangerous external threats requires the limited additional burden on a discrete category of international communications imposed by the statute.
The plaintiffs face a difficult road in persuading a court that this is not so. There are strong arguments against the plaintiffs’ position on the merits, and they will be strongly made by the government as this case goes forward. In the absence of any representations by the government that addressing these questions would disclose state secrets, cf. ACLU v. NSA, 493 F.3d at 650, those arguments should
7

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
be presented, and presented forcefully, to the courts. But those who would close the courthouse door to the plaintiffs do not rely on those arguments. Instead, they seek to avoid having to make them. To reject the plaintiffs’ arguments not because they lack merit, but because we refuse to hear them, runs a much graver risk than whatever invasion of plaintiffs’ privacy might be occasioned by the surveillance authorized by the challenged statute. The Constitution sets limits on the powers even of Congress. It is the glory of our system that even our elected leaders must defend the legality of their conduct when challenged. Short-circuiting that process risks not only that we will be governed by unconstitutional laws, but also that legitimate exercises of the lawmaking power will exist under a cloud, undispelled by the light of objective reasoning.
REENA RAGGI, Circuit Judge, with whom Chief Judge JACOBS, Judge CABRANES, Judge WESLEY, and Judge LIVINGSTON join, dissenting from the denial of rehearing en banc:
A panel of this court recognizes plaintiffs’ standing to mount a facial Fourth Amendment challenge to an act of Congress that authorizes foreign intelligence surveillance subject to statutory conditions, court order, congressional supervision and compliance with the Fourth Amendment. The panel reaches this conclusion even though plaintiffs cannot be targeted for surveillance under that statute, cannot demonstrate actual or imminent interception of any of their communications, and may in fact never experience such interception.
The panel concludes that plaintiffs’ professed fear of interception under the statute is sufficient to support standing because the fear is not “irrational,” and plaintiffs incurred costs to conduct conversations in person rather than risk interception. A rule that allows a plaintiff to *173 establish standing simply by incurring costs in response to a not-irrational fear of challenged conduct is unprecedented. On that theory, every mobster’s girlfriend who pays for a cab to meet with him in person rather than converse by telephone would be acting on a not-irrational fear of Title III interception and, therefore, have standing to challenge that statute.
In fact, Supreme Court precedent provides otherwise, holding that a subjective fear of challenged government conduct is insufficient to support standing, and that forbearance action can do so only when a plaintiff would otherwise certainly be subject to the challenged conduct.

The panel’s reduced standing standard is so at odds with this precedent as to compel rejection en banc. Because this court, by an equally divided vote, declines to convene for that purpose, I respectfully dissent.

1. Background
In 2008, Congress amended the Foreign Intelligence Surveillance Act of 1978 (“FISA”) by adding § 702, which authorizes foreign intelligence surveillance of non-United States persons located outside this country consistent with the Fourth Amendment and pursuant to court order and congressional oversight. See FISA Amendments Act of 2008 (“FAA”), Pub.L. No. 110–261, § 101(a)(2), 122 Stat. 2436 (codified at 50 U.S.C. § 1881a).1 Plaintiffs are United States persons who (1) cannot, as a matter of law, be targeted for FAA surveillance; (2) offer no evidence that their communications ever have been intercepted pursuant to the FAA; and (3) may in fact never be so intercepted. Nevertheless, they assert standing to challenge the law’s facial constitutionality and to seek to enjoin all FAA surveillance based on their professed fear of coincidental interception in the course of their work-related communications with foreign contacts who might be FAA targets.

1

FISA defines “United States person” to mean a citizen

or permanent resident of the United States;

unincorporated associations, a substantial number of

whose members are citizens or permanent residents of

the United States; and corporations incorporated in the

United States, unless qualifying as a “foreign power”

under the statute. 50 U.S.C. § 1801(i).

The FAA allows the executive to target only

non-United States persons reasonably believed to be

located outside this country in order to acquire

foreign intelligence information. See id. §

1881a(a)–(b).

On cross-motions for summary judgment, the district court carefully reviewed Supreme Court precedent and concluded that plaintiffs lacked standing because their subjective fear of interception was too speculative to demonstrate the requisite actual or imminent injury. See Amnesty Int’l USA v. McConnell, 646 F.Supp.2d 633 (S.D.N.Y.2009). A panel of this court reversed, concluding that plaintiffs established standing because they sustained actual injury by incurring costs to meet
8

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

with foreign contacts rather than risk interception of their electronic communications. See Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir.2011). The panel ruled that plaintiffs who incur costs to avoid feared government action have standing to challenge that action as long as their fears are not “fanciful,” “irrational,” or “clearly unreasonable.” Id. at 133, 135. The panel concluded that plaintiffs satisfied this standard because their fears of interception “are based on a reasonable interpretation of the challenged statute and a realistic understanding of the world.” Id. at 139.
This analysis pronounces a novel, relaxed standing standard wholly at odds with Supreme Court precedent. Further, the adoption of such a standard creates a split between this court and our sister *174 circuits in evaluating standing to challenge foreign intelligence surveillance programs. See Al–Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1205 (9th Cir.2007); ACLU v. NSA, 493 F.3d 644, 656 (6th Cir.2007); United Presbyterian Church v. Reagan, 738 F.2d 1375, 1380 (D.C.Cir.1984) (Scalia, J.). No member of the court here disputes the “exceptional importance” of these concerns. Fed. R.App. P. 35(a)(2). Meanwhile, a significant number views the panel decision as fundamentally flawed for reasons discussed in detail in this opinion.2 Nevertheless, with little more than a token response from the author of the panel opinion, the court refuses to rehear the case en banc. I respectfully dissent from that decision.

2

Further reasons for concern are discussed in opinions

filed today by Chief Judge Jacobs and Judge

Livingston.

2. The Nature of Plaintiffs’ Claim Warrants Particular Attention in Assessing Standing
The panel’s novel conclusion—that self-incurred costs can establish standing whenever occasioned by a not-irrational fear of being affected by challenged government conduct—would warrant en banc review in any case. This, however, is hardly “any case.” Three features merit mention before discussing the panel’s general failure to follow Supreme Court standing precedent.
First, plaintiffs sue to strike down an act of Congress. That circumstance, by itself, demands an “especially

rigorous” standing inquiry. Raines v. Byrd, 521 U.S. 811, 819–20, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). The rigorous inquiry requirement derives from the Constitution’s separation of powers and serves to maintain the proper balance between the least and most democratic branches of the federal government. See Arizona Christian Sch. Tuition Org. v. Winn, ––– U.S. ––––, 131 S.Ct. 1436, 1441–42, 179 L.Ed.2d 523 (2011) (observing that “[f]or the federal courts to decide questions of law arising outside of cases and controversies would be inimical to the Constitution’s democratic character”); Valley Forge Christian Coll. v. Americans United For Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (recognizing that federal courts do not wield an “unconditioned authority to determine the constitutionality of legislative or executive acts”); see also Livingston, J., Op. Dissenting from Denial of Reh’g En Banc (“Livingston, J., Op.”), post at [199–200]. Thus, while a court should not hesitate to recognize standing to challenge federal law where rigorous inquiry demonstrates it exists, a court cannot excuse a party from that rigorous inquiry simply by proclaiming it “the glory of our system that even our elected leaders must defend the legality of their conduct when challenged.” Lynch, J., Op. Concurring in Denial of Reh’g En Banc (“Lynch, J., Op.”), ante at [172].3

3

The pronouncement is not quite accurate. To be sure,

elected leaders must “defend” their conduct—lawful or

not—at the ballot box at regular intervals. But they

need not defend it in court “when[ever] challenged.”

Lynch, J., Op., ante at [172]. Rather, they must do so

only when the challenging party can demonstrate an

actual or imminent personal injury caused by that

conduct. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 575, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)

(observing that injury element of standing requires

more than “alleged violation of a right to have the

Government act in accordance with law”). It is this

standing issue that half of the active members of the

court wish to discuss further en banc, and Judge Lynch

cannot justify the court’s denial of that discussion by

charging us with fear of another, i.e., the merits of

plaintiffs’ claim. See Lynch, J., Op., post at [172].

Much less can he insinuate that we in the dissent are

somehow less sensitive than he to the judiciary’s proper

role in reviewing constitutional challenges to acts of

Congress. Indeed, it was Chief Justice Marshall—a

jurist with no crabbed view of the judiciary’s role or

fear of legal discussion—who cautioned that if judicial

power were “extended to every question under the

constitution,” federal courts might take possession of

9

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
“almost every subject proper for legislative discussion and decision,” a result unwarranted in a democratic republic. 4 Papers of John Marshall 95 (C. Cullen ed.1984) (quoted in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)). Mindful of this admonition, the Supreme Court has long been careful to observe the “role assigned to the judiciary” within the Constitution’s “tripartite allocation of power.” Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Consistent with that role, when a party whose opposition to legislation has failed to carry the day in congressional debate seeks to revive the “discussion” in the courts, the law quite reasonably demands a rigorous inquiry into standing, requiring the party to demonstrate that he is not simply disgruntled, but actually injured by the law he challenges.
*175 Second, plaintiffs cannot themselves be targets of the statute they seek to invalidate. That fact requires them to make a “much more” convincing showing of standing than would be demanded of a target. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (stating that it is ordinarily “substantially more difficult” to establish standing to challenge government action that targets someone else (internal quotation marks omitted)). The requirement is based on a prudential concern with ensuring that a party who wishes to use the courts rather than the public square to attack legislation asserts his own concrete claim of injury rather than those of third parties. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). This prudential rule “frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.” United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).
This last point assumes greater significance in light of a third feature of the case: the nature and source of the personal right asserted by plaintiffs are unclear. “Although standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal, it often turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U.S. at 500, 95 S.Ct. 2197 (internal citation omitted). In short, to determine whether a party satisfies the injury prong of standing, a court must understand what “legally protected interest” has been invaded. Lujan v. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130. The question requires particular attention when, as here, Fourth Amendment rights are asserted. See

generally Rakas v. Illinois, 439 U.S. 128, 138–41, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (recognizing that identification of standing and substantive Fourth Amendment rights are “intertwined”).4

4

The question of whether a plaintiff asserts a cognizable

legal interest is closely related but not identical to the

question of whether a plaintiff’s particular assertion of

a cognizable interest is meritorious. Thus, the concerns

detailed in the ensuing discussion, which receive no

mention by the panel, cannot be dismissed as pertaining

only to “the merits of the plaintiffs’ claim, rather than

... their standing.” Lynch, J., Op., ante at [169 n. 8]

(emphasis in original).

Plaintiffs submit that the FAA is unconstitutional on its face for authorizing surveillance that violates the Fourth Amendment.5 The claim is curious because, on *176 its face, the FAA makes plain that any surveillance under that statute must be conducted consistent with the Fourth Amendment. This is reflected in no less than three provisions: (1) § 1881a(b)(5), which mandates that FAA surveillance “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States”; (2) § 1881a(g)(2)(A)(iv), which requires the executive to certify to the Foreign Intelligence Surveillance Court (“FISA court”) that the procedures and guidelines it has adopted to satisfy FAA targeting and minimization requirements “are consistent with the requirements of the fourth amendment to the Constitution of the United States”; and (3) § 1881a(i)(3)(A), which conditions the requisite court order on a judicial finding that the executive’s targeting and minimization procedures “are consistent ... with the fourth amendment to the Constitution of the United States.” See 154 Cong. Rec. S6388 (daily ed. July 8, 2008) (statement of Sen. Bond, then-Vice Chairman, S. Select Comm. on Intelligence) (describing Fourth Amendment compliance as “overarching mandate” of FAA).

5

Insofar as plaintiffs also challenge the FAA on First

Amendment grounds, that claim appears to be

derivative of the charged Fourth Amendment violation:

“The challenged law violates the First Amendment by

substantially burdening a broad range of lawful

expressive activity without adequate justification and

by authorizing defendants to acquire constitutionally

protected communications without meaningful judicial

oversight.” Compl. ¶ 105 (emphasis added). See ACLU

v. NSA, 493 F.3d at 657 (Batchelder, J.) (observing that

plaintiffs who challenged warrantless NSA surveillance

10

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
program on various constitutional grounds “have only one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment or FISA”). This makes sense. Journalists investigating organized crime would hardly be heard to complain that Title III surveillance, lawful under the Fourth Amendment, see, e.g., United States v. Tortorello, 480 F.2d 764, 771–75 (2d Cir.1973), nevertheless violates the First Amendment by burdening their ability to communicate electronically with likely mob targets who could give them insights into La Cosa Nostra, see generally United States v. Mayer, 503 F.3d 740, 750 (9th Cir.2007) (explaining that undercover surveillance lawful under Fourth Amendment does not violate First Amendment rights); ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 471 (D.C.Cir.1991) (same in context of FISA surveillance); Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778, 781 n. 3 (6th Cir.1983) (observing that “[c]ourts have recognized that physical surveillance consistent with Fourth Amendment protections in connection with a good faith law enforcement investigation does not violate First Amendment rights” and collecting cases); see also Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (requiring only that Fourth Amendment be applied with “scrupulous exactitude” where First Amendment interests are implicated in search (internal quotation marks omitted)).
In the absence of any evidence of actual surveillance practices under the FAA, a court cannot assume that the executive and the judiciary will flout these statutory requirements or misconstrue Fourth Amendment protections. Indeed, the presumption is to the contrary. See United States v. Chem. Found., Inc., 272 U.S. 1, 14–15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”); see also Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 618, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (Kennedy, J., concurring) (“Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.”). Thus, how can these plaintiffs claim—in a lawsuit filed the very day the FAA became law—that a statute to which they are not even subject, on its face, puts them at risk of any Fourth Amendment injury? See *177 Lujan v. Defenders of Wildlife, 504 U.S. at 569 n. 4, 112 S.Ct. 2130 (requiring standing to be

determined “on the facts as they existed when the complaint [was] filed” (internal quotation marks and emphasis omitted)).6 In the context of such a curious claim, the concerns raised by the panel’s decision to lower plaintiffs’ constitutional standing burden are heightened by those “prudential principles” whereby the judiciary seeks (1) “to avoid deciding questions of broad social import where no individual rights would be vindicated” and (2) “to limit access to the federal courts to those litigants best suited to assert a particular claim.” Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99–100, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); see Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. 2197 (discussing how prudential concerns supplement constitutional elements of standing).

6

Judge Lynch submits that it is not unusual for facial

challenges to be filed on the date of a statute’s

enactment. See Lynch, J., Op., ante at [169–70]. This

misses the point. It is certainly unusual to file such a

challenge to a statute that, on its face, requires

compliance with the very constitutional provision that

plaintiffs claim will be violated by every application of

the law. See generally Sabri v. United States, 541 U.S.

600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004)

(noting that facial challenge “in the strictest sense” is

one claiming that “no application of the statute could be

constitutional” (emphasis added)).

What individual Fourth Amendment right do plaintiffs seek to vindicate by this facial challenge? The question admits no easy answer. Plaintiffs assert that the FAA “authorizes defendants to acquire the constitutionally protected communications of U.S. citizens and residents”—presumably themselves—without requiring identification of “the people to be surveilled” and the facilities to be monitored in “individualized warrants based on criminal or foreign intelligence probable cause.” Compl. ¶ 104. But as United States persons, plaintiffs cannot be “the people to be surveilled” under the FAA; if intercepted at all, it could only be as coincidental communicants of FAA targets. Coincidental interceptees, however, cannot claim a personal Fourth Amendment right to be identified or to have probable cause established as to themselves as a precondition to reasonable surveillance. Cf. United States v. Figueroa, 757 F.2d 466, 472 (2d Cir.1985) (holding that Title III “order which does not specify every person whose conversations may be intercepted does not per se amount to a ‘virtual general warrant’ in violation of the fourth amendment”) (quoting United States v. Kahn, 415 U.S. 143, 154, 94 S.Ct. 977,
11

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

39 L.Ed.2d 225 (1974)); United States v. Tortorello, 480 F.2d 764, 775 (2d Cir.1973) (rejecting argument that government must establish probable cause as to all interceptees: “If probable cause has been shown as to one such participant, the statements of the other participants may be intercepted if pertinent to the investigation.”).
Alternatively, plaintiffs might be understood to challenge the FAA for failing to require individualized warrants, particularity, or probable cause with respect to foreign targets. But a non-target’s personal right to challenge the lawfulness of surveillance of a third party usually arises only upon the non-target’s actual interception in the course of such surveillance, which plaintiffs do not allege here. See generally United States v. Fury, 554 F.2d 522, 526 (2d Cir.1977). In any event, because FAA targets must be non-United States persons outside this country, they lack the very Fourth Amendment rights with respect to foreign intelligence surveillance that plaintiffs claim on their behalf. See United States v. Verdugo–Urquidez, 494 U.S. 259, 274, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (holding that foreign persons outside the United States cannot claim Fourth Amendment protections); accord In re *178 Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157, 168–69 (2d Cir.2008).7 This gives rise to a question that plaintiffs do not address and for which no answer can be found either in the panel opinion or Judge Lynch’s concurrence: Under what, if any, circumstances can a coincidental interceptee claim a personal Fourth Amendment right to challenge foreign intelligence surveillance that is lawful as to its target? In other contexts in which warrantless interceptions are lawful as to one party, coincidental interceptees have not been found to have a distinct Fourth Amendment right. See generally United States v. White, 401 U.S. 745, 751–53, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (holding that conversation recorded on consent of one participant did not violate other participant’s Fourth Amendment rights).8

7

Thus, even if plaintiffs’ hearsay assertion that their

foreign contacts “believed they were more likely to be

monitored under the FAA” is “uncontroverted,” Lynch,

J., Op., ante at [169], that belief is irrelevant to

identifying the personal constitutional right that

plaintiffs seek to vindicate through this action.

8

It is no answer to state that “consensual recording is not

analogous to non-consensual interception.” Lynch, J.,

Op., ante at [169 n. 8]. The question, which is only

illustrated by White, is whether in any circumstance where warrantless interceptions are lawful as to one party, the law recognizes coincidental interceptees to have a distinct Fourth Amendment right to challenge the surveillance.
If, like the district court, the panel had concluded that plaintiffs lacked standing regardless of the nature of their claims because they failed to show actual or imminent injury from FAA interception, there would, of course, have been no need to pursue this matter. But I question how, consistent with “the province of the court ... to decide on the rights of individuals,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803), the panel could recognize plaintiffs’ standing without a clearer comprehension of the personal Fourth Amendment right at stake, see Warth v. Seldin, 422 U.S. at 500, 95 S.Ct. 2197.
Further, without such an understanding, it is impossible to conclude that these plaintiffs are the persons “best suited” to challenge the constitutionality of a statute that cannot target them. Gladstone Realtors v. Vill. of Bellwood, 441 U.S. at 100, 99 S.Ct. 1601. Indeed, a contrary inference might be drawn from the fact that, in the FAA, Congress expressly conferred standing on electronic communication service providers to challenge directives requiring them to provide technical assistance to effect authorized surveillance. See 50 U.S.C. § 1881a(h)(4). Service providers’ willingness to avail themselves of such standing is evidenced by the Fourth Amendment challenge one such provider filed to surveillance under the FAA’s predecessor statute, the Protect America Act of 2007 (“PAA”), Pub.L. No. 110–55, 121 Stat. 552. See In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act (In re FISA Section 105B Directives), 551 F.3d 1004 (FISA Ct.Rev.2008) (discussed further infra at [186–87] ). In addition, the law recognizes any person’s standing to challenge the legality of FISA-acquired evidence that is offered against him in a criminal prosecution. See, e.g., United States v. Abu–Jihaad, 630 F.3d 102, 107–31 (2d Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 3062, 180 L.Ed.2d 892 (2011); see also 50 U.S.C. § 1806(c) (requiring government to notify interceptee of intent to disclose or use information derived from electronic surveillance); id. § 1806(e) (permitting *179 interceptee to move to suppress information derived from electronic surveillance as unlawfully acquired); id. § 1881e(a) (subjecting information derived from FAA surveillance to provisions
12

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
of § 1806). Thus, a relaxed inquiry into plaintiffs’ standing cannot be justified on the ground that no one else will be able to challenge FAA surveillance. In any event, the Supreme Court has expressly rejected such an argument as a ground for recognizing standing. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974) (citing United States v. Richardson, 418 U.S. 166, 179, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974)); accord ACLU v. NSA, 493 F.3d at 675–76 (Batchelder, J.).
Mindful of the heightened scrutiny and prudential concerns triggered by these particular aspects of plaintiffs’ claim, I turn to the even more serious matter of the panel’s failure to follow Supreme Court standing precedent.

3. The Panel Decision Puts this Court at Odds with Supreme Court Precedent
Most disturbing about the court’s decision not to convene en banc is that it thereby allows a novel, reduced standing standard, at odds with Supreme Court precedent, to become citable as the law of this circuit.9

9

Judge Lynch submits that en banc review is

unnecessary because the panel’s “conclusions regarding

standing were limited to this statute, these plaintiffs,

and the facts of this case.” Lynch, J., Op., ante at [164].

Would it were so. Standing determinations may be

“fact specific,” but “standing concepts,” i.e., the

governing legal principles, gain “considerable

definition from developing case law.” Allen v. Wright,

468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556

(1984). Thus, because the flawed “standing concept”

developed by the panel in this case might be read to

bind future panels, it merits en banc review.

To establish standing on summary judgment, plaintiffs were required to demonstrate three elements that constitute the “irreducible constitutional minimum” for standing: (1) an injury in fact, i.e., “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) a causal connection, i.e., “the injury has to be fairly traceable to the challenged action of the defendant”; and (3) redressability, i.e., “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of

Wildlife, 504 U.S. at 560–61, 112 S.Ct. 2130 (internal citations, quotation marks, and alterations omitted).
The obvious concrete injury to be expected from unlawful electronic surveillance is interception. Plaintiffs, however, offer no evidence that they have ever actually been intercepted by FAA surveillance. Nor have they established that any such interception is “imminent,” a term that the Supreme Court construes to mean “certainly impending.” Id. at 564 n. 2, 112 S.Ct. 2130 (emphasis in original; internal quotation marks omitted); see also Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1152–53, 173 L.Ed.2d 1 (2009) (refusing to dilute strict imminence requirement to demand only “realistic threat that reoccurrence of the challenged activity would cause the plaintiff harm in the reasonably near future” (emphasis in original; internal quotation marks and brackets omitted)).
Instead, plaintiffs profess only a fear of FAA interception, which is plainly insufficient to establish standing. See City of Los Angeles v. Lyons, 461 U.S. 95, 107 & n. 8, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (holding that subjective fear of police misconduct, even when grounded in past injury, is not enough to demonstrate imminent *180 threat: “It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s subjective apprehensions.” (emphasis in original)). Rather than follow this precedent to its inevitable conclusion—dismissal of plaintiffs’ claim for lack of standing—the panel asserts that it “overstates” the standing standard to require plaintiffs to demonstrate that it is “effectively certain” that they will be intercepted on FAA surveillance. Amnesty Int’l USA v. Clapper, 638 F.3d at 135.
How does the panel elide the precise future-injury standard—“certainly impending”—articulated in Lujan? By reasoning that, in lieu of injury inflicted by the government through actual or imminent FAA interception, plaintiffs can establish standing through self-inflicted injury, specifically, costs incurred to meet with foreign contacts rather than risk feared FAA interception. The panel concludes that with actual injury thus established, the likelihood of interception becomes relevant only to causation, i.e., were the incurred costs “fairly traceable” to the FAA? Id. As to this requirement, the panel uses a purported admonition to set a very low bar—“If the possibility of interception is remote or fanciful, [plaintiffs’] present-injury theory fails because [they] would have no reasonable basis for fearing interception under the FAA, and they cannot bootstrap
13

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

their way into standing by unreasonably incurring costs to avoid a merely speculative or highly unlikely potential harm,” id. at 133–34—which is then applied to identify a claim for future injury as well. See Lynch, J., Op., ante at [167] (observing that “the same analysis that supports the conclusion that the plaintiffs’ present-injury theory satisfies the causation prong further supports the conclusion that the plaintiffs’ future-injury theory properly satisfies the injury-in-fact prong” (emphasis in original)).10

10

Judge Livingston’s opinion discusses in detail the

concerns raised by the panel’s identification of standing

based on a theory of future injury. See Livingston, J.,

Op., post at [195–200].

Thus, for the price of a plane ticket, plaintiffs can transform their standing burden from one requiring a showing of actual or imminent FAA interception to one requiring a showing that their subjective fear of such interception is not “fanciful,” “irrational,” or “clearly unreasonable.” Id. at 133, 135. Had the idea only occurred to the plaintiff in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675, he presumably could have avoided the need to show an actual or imminent risk of being subjected to the challenged police chokehold procedure simply by moving from Los Angeles to Glendale, and then claiming that the actual injury of his moving costs was “fairly traceable” to a not-irrational fear of a procedure to which he, after all, had already been subjected.11

11

Judge Lynch states that Lyons, unlike plaintiffs here,

“did not have any reasonable expectation” that he

would be subjected in the future to the chokehold

procedure he sought to enjoin. Lynch, J., Op., ante at

[170 n. 10]. That is Judge Lynch’s conclusion, not the

Supreme Court’s, which found standing lacking not

because Lyons’ expectations were not “reasonable” but

because they were not certain. See City of Los Angeles

v. Lyons, 461 U.S. at 106, 103 S.Ct. 1660 (holding that

for Lyons to establish standing he had to allege that he

would have another encounter with the police and that

“all police officers in Los Angeles always choke any

citizen with whom they happen to have an encounter”

(emphasis in original)). This court cannot reduce the

“certainly impending” injury requirement for standing

to one of reasonableness by pointing to plaintiffs’

self-incurred costs. To do so misreads Lyons and

contravenes the holdings in Lujan v. Defenders of

Wildlife, 504 U.S. at 564 n. 2, 112 S.Ct. 2130, and

Summers v. Earth Island Inst., 129 S.Ct. at 1152–53.

Rather than respond to this and other concerns with how far the panel decision departs from Supreme Court precedent, Judge Lynch dismissively asserts that the dissenters “seem to misunderstand” the panel’s “injury analysis.” Lynch, J., Op., ante at [167]. The wish appears to be father to the thought. I fear we understand the panel’s analysis all too well, and recognize that it puts this circuit directly at odds with binding Supreme Court precedent.
*181 I doubt that the Supreme Court would have found such an argument convincing in Lyons for the same reason it fails to persuade here. Plaintiffs’ costs—to the extent any were even demonstrated, see infra at [184–85]—are fairly attributed not to the FAA but to their own subjective fear of FAA interception, which they claim has chilled their normal exchange of international communications. The Supreme Court has ruled that such subjective chilling cannot support standing. See Laird v. Tatum, 408 U.S. 1, 10, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) (holding that plaintiff “who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity” lacks standing to invoke federal jurisdiction). Applying Laird to plaintiffs’ case, the district court explained:
What made the chilling effect subjective in Laird was the plaintiffs’ failure to show that they were subject to the challenged policy and faced a threat of harm from it. The plaintiffs could only show that the surveillance policy existed. The plaintiffs’ failure to substantiate the alleged chill with proof that they really were subject to the information gathering policy made their alleged chill “subjective.” See Ozonoff v. Berzak, 744 F.2d 224, 229 (1st Cir.1984) (Breyer, J.) (interpreting phrase “without more” in Laird to mean that “[t]he plaintiffs in Laird did not claim that the information gathering activities were directed against them specifically or that the gathered data could be directly used against them in any foreseeable way”). All of the plaintiffs’ alleged “objective” expenditures are insufficient to establish standing because they all arise from the plaintiffs’ choices to incur expenditures and costs that are not based on a sufficient showing that the statute in question was directed at them.
Amnesty Int’l USA v. McConnell, 646 F.Supp.2d at 655. The Laird concerns highlighted by the district court—and referenced by then-Judge Breyer in Ozonoff—are not allayed by plaintiffs’ self-incurred travel costs. As a
14

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

matter of law, plaintiffs cannot be the targets of FAA surveillance. Thus, whether they incurred costs or not, they cannot show that information gathering activities under the challenged statute will be directed against them. Indeed, the statute provides specific safeguards to ensure against that possibility, see 50 U.S.C. § 1881a(b)–(d), (f)–(g), as well as strict limits on the use of any information coincidentally intercepted from United States persons, see id. §§ 1801(h), 1806, 1881a(e), 1881e(a).
To sidestep the adverse standing conclusion dictated by Laird, the panel attempts to cabin that Supreme Court decision to its facts and to dismiss as dictum any part that might be construed to identify a general rule. See Amnesty Int’l USA v. Clapper, 638 F.3d at 146–48. The panel posits that “the Laird plaintiffs so obviously lacked standing that the Court did not need to create stricter standing rules in the surveillance context in order to deny plaintiffs standing.” Id. at 148.12 I agree *182 that Laird did not establish “stricter” standing rules for surveillance cases. But I cannot agree that the Supreme Court was pronouncing mere dictum when it identified circumstances where a subjective chilling effect cannot support standing. The Court made this point in distinguishing cases in which standing had been recognized even though the “deterrent, or ‘chilling,’ effect of governmental regulations [fell] short of a direct prohibition against the exercise of First Amendment rights.” Laird v. Tatum, 408 U.S. at 11, 92 S.Ct. 2318. It stated as follows:

12

The panel’s first observation would presumably have

come as a surprise to the four Laird dissenters,

especially Justice Douglas, who thought that it was the

challenge to, rather than assertion of, plaintiffs’

standing that was “too transparent for serious

argument.” Laird v. Tatum, 408 U.S. at 24, 92 S.Ct.

2318 (Douglas, J., with Marshall, J., dissenting); see

also id. at 38, 92 S.Ct. 2318 (Brennan, J., with Stewart

and Marshall, JJ., dissenting).

In none of these cases, ... did the chilling effect arise merely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature,

and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging. Id. It can perhaps be debated whether the second sentence should be construed as definitional or merely illustrative of circumstances where a chilling effect can establish standing.13 But what the panel could not do was dismiss the first sentence, which holds that the circumstances there identified cannot support standing. Thus, Laird compels the conclusion here that plaintiffs lack standing because any chilling of their electronic communications with foreign contacts, including costs incurred in forgoing such communications, arose “merely” from their knowledge of the existence of a program that they feared could target their contacts. Laird v. Tatum, 408 U.S. at 11, 92 S.Ct. 2318.

13

Compare ACLU v. NSA, 493 F.3d at 661 (Batchelder,

J.) (interpreting Laird to require that plaintiff “establish

that he or she is regulated, constrained, or compelled

directly by the government’s actions”), with id. at 692

n. 3 (Gibbons, J., concurring) (observing that language

in Laird might be “merely descriptive” of the facts in

prior cases in which the Court found standing). In fact,

the question need not be decided in this case, as the

district court recognized. See Amnesty Int’l USA v.

McConnell, 646 F.Supp.2d at 654 (noting without

deciding question).

In concluding otherwise, the panel not only fails to follow Lyons and Laird, but also misapplies Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). In that case, the Supreme Court held that plaintiffs who had taken steps to avoid a polluted river had standing to challenge defendants’ unlawful discharge of pollutants into the waterway. The panel cites Laidlaw as support for its conclusion that “[d]espite not being directly regulated, a plaintiff may establish a cognizable injury in fact by showing that he has altered or ceased conduct as a reasonable response to the challenged statute.” Amnesty Int’l USA v. Clapper, 638 F.3d at 141. This ignores circumstances critical to the Laidlaw decision that are notably absent from this case. In Laidlaw, the defendant was then actually discharging pollutants into the river, making plaintiffs’ exposure to those pollutants certain if they resumed their abandoned recreational use of the river. It was in these circumstances where, but for plaintiffs’ own forbearance, they would unquestionably *183 have been subjected to the injurious conduct, that the Court addressed the “reasonableness” of plaintiffs’ avoidance of the river. See Friends of the Earth, Inc. v.
15

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at 184, 120 S.Ct. 693 (concluding that there was “nothing improbable about the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms” (internal quotation marks omitted)). In short, Laidlaw established a two-step standing inquiry, “requir[ing] that plaintiffs demonstrate that they (1) are in fact subject to the defendant’s conduct, in the past or future, and (2) have at least a reasonable fear of harm from that conduct.” ACLU v. NSA, 493 F.3d at 689 (Gibbons, J., concurring) (emphasis added).
Here, plaintiffs’ standing claim fails at the first step of the Laidlaw analysis. They cannot demonstrate that the executive is certainly conducting FAA surveillance of their foreign contacts, much less that if they resume electronically communicating with these contacts, they will in fact be intercepted. Plaintiffs assert that they reasonably fear such interception, but whether they will ever be subject to it remains a matter of complete conjecture. See id. at 656 (Batchelder, J.) (stating with respect to similarly situated plaintiffs that even though their fears of surveillance “may be reasonable, the alternative possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in this lawsuit” (emphasis in original; footnote omitted)).
For that reason, plaintiffs’ situation is more aptly analogized to Lyons than to Laidlaw in that they claim only “ ‘subjective apprehensions’ ” that FAA surveillance will “even take place.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at 184, 120 S.Ct. 693 (quoting Los Angeles v. Lyons, 461 U.S. at 107 n. 8, 103 S.Ct. 1660, in distinguishing two cases) (emphasis in Laidlaw). The distinction the Supreme Court thus draws between the facts supporting standing in Laidlaw and those failing to support standing in Lyons must be recognized as “one of kind, not degree,” i.e., between subjective apprehension in Lyons as to whether challenged governmental conduct would even take place, and the subjective issue in Laidlaw as to whether it was reasonable for plaintiffs to fear harm from pollutants that unquestionably were being discharged into the river. ACLU v. NSA, 493 F.3d at 690 (Gibbons, J., concurring). In short, what was uncertain about the claimed injury in Laidlaw was not defendants’ conduct—about which there was no doubt—but the science of pollution. Likewise, in other “prospective injury” cases cited by the panel, the plaintiffs were found to have standing because they were

subject to the conduct challenged, or at least certainly would be subject to it if they took certain actions within their control.14 Thus, as Judge Gibbons observed, *184 it is error to transform the Supreme Court’s holding in Laidlaw, “under which the plaintiffs who were in fact subject to defendant’s conduct had standing because they reasonably feared harm from that conduct, into a much broader proposition, under which plaintiffs may establish standing by showing merely that they possess a reasonable fear of being subject to defendant’s allegedly harmful conduct.” Id. at 689 (emphasis in original). This court needs to say so en banc.

14

See, e.g., Davis v. FEC, 554 U.S. 724, 734, 128 S.Ct.

2759, 171 L.Ed.2d 737 (2008) (recognizing plaintiff

candidate’s standing to challenge campaign finance

scheme where he had already declared his intent to

spend in excess of statutory trigger and operation of

statute would “shortly burden” his expenditure of

personal funds); Massachusetts v. EPA, 549 U.S. 497,

521, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007)

(recognizing standing to challenge EPA’s refusal to

regulate greenhouse emissions, resulting in “actual and

imminent” injury to state coastal property due to rising

sea levels (internal quotation marks omitted)); Pennell

v. City of San Jose, 485 U.S. 1, 8, 108 S.Ct. 849, 99

L.Ed.2d 1 (1988) (holding, on motion to dismiss, that

complaint adequately alleged facts to show that

challenged ordinance “will be enforced against”

plaintiffs, but “strongly suggest[ing]” that future

litigants “take pains to supplement the record in any

manner necessary” to enable court to address standing

inquiry “with as much precision as possible”); Meese v.

Keene, 481 U.S. 465, 473, 107 S.Ct. 1862, 95 L.Ed.2d

415 (1987) (recognizing standing to challenge statute

requiring certain films to be labeled as “political

propaganda” where statute undoubtedly applied to films

plaintiff wished to exhibit); Duke Power Co. v.

Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 73–74,

98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (recognizing

standing to challenge liability limitation for nuclear

accidents that encouraged construction of nuclear plants

because plaintiffs were exposed to “ ‘immediate’

adverse effects,” including undisputed low-level

radiation emissions); United States v. Students

Challenging Regulatory Agency Procedures (SCRAP),

412 U.S. 669, 690, 93 S.Ct. 2405, 37 L.Ed.2d 254

(1973) (holding, on motion to dismiss, that plaintiffs

adequately alleged standing to challenge rail surcharge

because if facts alleged were proved true, plaintiffs

would be “squarely among those persons injured”).

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Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

4. The Factual Record Fails To Satisfy Even the Panel’s Reduced Standing Standard
After pronouncing a reduced standing standard at odds with Supreme Court precedent, the panel allows plaintiffs to satisfy that standard on a negligible factual record. The panel identifies actual present injury based on plaintiffs’ sworn assertions that “it has become more difficult and expensive to practice their professions as a result of the enactment of the FAA.” Lynch, J., Op., ante at [168 n. 6]; see Amnesty Int’l USA v. Clapper, 638 F.3d at 133. It is no coincidence that the panel summarizes the assertions referenced. A review of the declarations submitted by plaintiffs reveals them to be notably lacking in the requisite “specific facts.” Lujan v. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks omitted).15

15

The “certainty and specificity” requirements for

standing are not demanded by this judge, as Judge

Lynch suggests, see Lynch, J., Op., ante at [170 n. 9],

but by binding Supreme Court precedent. To the extent

Judge Lynch submits that it is impossible for plaintiffs

to satisfy that standard with respect to their actual

interception under a classified surveillance scheme, that

does not permit the panel to relieve plaintiffs of the

standing burden established by this precedent. See

Schlesinger v. Reservists Comm. to Stop the War, 418

U.S. at 227, 94 S.Ct. 2925; ACLU v. NSA, 493 F.3d at

675–76 (Batchelder, J.); see also Livingston, J., Op.,

post at [199–200]. In any event, Judge Lynch does

not—and cannot—use that argument to excuse

plaintiffs’ failure to adduce “specific facts” to support

the self-incurred costs prong of even the panel’s

reduced standing standard, a matter wholly within

plaintiffs’ personal knowledge.

Two declarants conclusorily report only that they “will have to travel” at unspecified future times to avoid FAA interception of their conversations with foreign sources. See Mariner Decl. ¶ 10 (stating that, as a result of FAA, “I will have to travel abroad to gather information that I would otherwise have gathered by telephone or e-mail”); Klein Decl. ¶ 9 (stating that, as a result of FAA, “I will have to travel to gather information that I previously might have gathered by telephone or e-mail”). Two other declarants imply actual travel without providing any particulars. See Hedges Decl. ¶ 9 (reporting that FAA “has made my work very difficult and *185 often requires me to travel to see those who have information” and that “[t]he financial cost and time required to speak with many of my contacts is now immense”); McKay Decl. ¶¶ 8, 10

(stating that, after FAA was enacted, “[w]henever possible,” declarant and law partner “collect information in person rather than by telephone or email ... [which] requires travel that is both time-consuming and expensive”). Finally, one declarant who resides in Washington, D.C., asserts that, “[m]ost recently,” she traveled “to New York City to meet with” a French barrister to discuss her representation of a Guantanamo Bay detainee. Royce Decl. ¶ 7. Assuming that the declarant incurred costs for this trip—a fact not specifically asserted—those costs cannot constitute FAA injury because the statute would not have permitted interception of electronic communications with a French national who was in New York. See 50 U.S.C. § 1881a(b)(1) (precluding targeting of any person known to be in United States).
Thus, while the panel’s identification of self-incurred costs as the actual present injury in this case is legally unsupportable for reasons discussed in the previous section of this opinion, it also lacks the requisite foundation in “specific facts,” even without considering the “much more” convincing factual showing required of a non-target. Lujan v. Defenders of Wildlife, 504 U.S. at 561–62, 112 S.Ct. 2130.16

16

Judge Lynch does not acknowledge this concern,

relegating it to a see also cite respecting a different

point made by Chief Judge Jacobs. See Lynch, J., Op.,

ante at [164–65]. The concern here identified, however,

is not one of panel credulity, declarant veracity, or

party collusion—the straw men with whom Judge

Lynch chooses to joust. See id. at [164–66]. The

question is sufficiency. In short, even if the declarants

are presumed truthful, how do their conclusory

assertions of incurred costs and speculative predictions

as to future costs satisfy the “specific facts”

requirement for standing established in Lujan v.

Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130?

No answer to that question can be found either in the

panel’s opinion or Judge Lynch’s concurrence.

The panel further concludes that, whether as a matter of causation or actual future injury, plaintiffs demonstrate a reasonable, i.e., not “fanciful,” “irrational,” or “clearly unreasonable,” fear of FAA interception because their fear is “based on a reasonable interpretation of the challenged statute and a realistic understanding of the world.” Amnesty Int’l USA v. Clapper, 638 F.3d at 139. But how reasonable can it be to interpret the FAA—a statute that, on its face, requires all interceptions
17

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

conducted thereunder to be consistent with the Fourth Amendment—to authorize, on its face, interceptions that invariably will violate that amendment? And what is the basis for plaintiffs’ “realistic view of the world” of foreign intelligence surveillance, particularly with respect to the executive’s classified targeting priorities and practices? Plaintiffs do not—and indeed cannot—profess personal knowledge of such matters. Thus, their identification of foreign contacts as “likely” targets for FAA interception, id. at 126, is completely speculative and not admissible evidence, see Fed.R.Evid. 602; Fed.R.Civ.P. 56(c)(4).17

17

Judge Lynch submits that it is hardly speculative to

think that the government will seek to surveil plaintiffs’

overseas contacts such as “alleged Al Qaeda members

(and Guantanamo detainees) Khalid Sheik Mohammed

and Mohammedou Ould Salahi, as well as those men’s

families.” Lynch, J., Op., ante at [170]. What is

speculative, however, is that these persons will be

surveilled under the FAA. The electronic

communications of persons in federal custody are

routinely surveilled on a theory of implied consent

based on notice. See United States v. Amen, 831 F.2d

373, 378 (2d Cir.1987). Moreover, alleged al Qaeda

members and their families are such obvious targets for

FISA or NSA surveillance that one can only speculate

that the executive would instead use the FAA to

monitor their electronic communications. See ACLU v.

NSA, 493 F.3d at 671 (Batchelder, J.) (finding it

“reasonable” that FISA Court would authorize

interception of communications involving al Qaeda

affiliates targeted under challenged NSA surveillance

program). To the extent the real issue here is the

possibility of dragnet surveillance, see Lynch, J., Op.,

ante at [167 n. 4], the interception of plaintiffs’

contacts—or plaintiffs themselves—pursuant to the

FAA is completely speculative for reasons discussed in

Parts 5 and 6 of this opinion.

*186 To justify its reliance on these and other similarly unsubstantiated or conclusory assertions by plaintiffs, the panel observes that the government did not object. See, e.g., Amnesty Int’l USA v. Clapper, 638 F.3d at 127 n. 10, 129 & n. 13, 133. But the panel could not relieve these non-target plaintiffs of their particularly heavy evidentiary burden, nor could it forgo its own duty to conduct a rigorous inquiry into plaintiffs’ standing simply by noting the government’s supposed failure to object. See Summers v. Earth Island Inst., 129 S.Ct. at 1152–53 (rejecting dissent view that an assertion that “no one denies” must be accepted as established in evaluating standing). The

panel was under an “independent obligation” to assess plaintiffs’ standing, even if the government did not call it into question at all. Arizona Christian Sch. Tuition Org. v. Winn, 131 S.Ct. at 1454.
In fact, a glimpse into the actual world of foreign intelligence targeting is afforded by unredacted portions of the FISA Court of Review’s opinion in In re FISA Section 105B Directives, 551 F.3d 1004, and that world appears quite different from the one hypothesized by plaintiffs. That case presented an as-applied challenge to now-expired amendments to FISA effected through the PAA, which allowed the executive “to conduct warrantless foreign intelligence surveillance on targets (including United States persons) reasonably believed to be located outside the United States,” subject to specified criteria, including the adoption of targeting and minimization procedures akin to those now required by the FAA, but with no prior court review. Id. at 1006–07 (internal quotation marks omitted). After holding that foreign intelligence surveillance is not subject to the Fourth Amendment warrant requirement, see id. at 1012, the court addressed a Fourth Amendment reasonableness challenge based on the PAA’s failure to require particularity, judicial review of probable cause, or adequate proxies for these omitted protections, see id. at 1013. Before rejecting the claim, the court reviewed the actual procedures adopted by the executive to satisfy PAA requirements and found that they in fact afforded “protections above and beyond those specified” in the statute, id. at 1007, and adequately allayed any particularity or probable cause concerns, see id. at 1013–14 & n. 7 (specifically noting that procedures adopted by executive to comply with PAA incorporated executive order that required Attorney General to determine in each case, based on information provided pursuant to Department of Defense regulations, that probable cause existed to believe that targeted person is foreign power or agent of foreign power). Such scrupulous oversight rebuts any general assumptions, unsupported by specific facts, that the executive will instinctively abuse its targeting discretion under the FAA—a statute that goes further than the PAA in subjecting executive targeting and minimization procedures to judicial review and in conditioning court orders on a specific finding that the procedures are “consistent ... with the fourth amendment.” 50 U.S.C. § 1881a(i)(3)(A). Further, it reinforces the need for this court to clarify en banc that, consistent with Supreme Court precedent, plaintiffs’ *187 standing depends on their showing actual or imminent FAA interception.
18

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
5. The Panel Decision Creates a Circuit Split
The most obvious reason why plaintiffs cannot show that they are subject to actual or imminent FAA interception is because that statute does not direct that any foreign intelligence surveillance be conducted; it merely authorizes the executive to undertake such surveillance pursuant to specified statutory requirements and protections. This is not to suggest that the executive will not exercise FAA authority. I assume that it will. I further assume that the FAA authorizes dragnet surveillance. Nevertheless, neither plaintiffs nor this court can know the extent to which the executive will seek or the FISA court authorize the exercise of such surveillance authority. That is the point Judge Lynch ignores in his mistaken identification of a “palpable” contradiction between the preceding two sentences and any concern with plaintiffs’ standing. Lynch, J., Op., ante at [170 n. 9]. In fact, any decisions to seek or grant FAA surveillance authority depend, among other things, on national security priorities, available resources, alternative means of surveillance, and, of course, Congress’s mandate that all FAA surveillance be conducted in compliance with the Fourth Amendment. In these variable circumstances, plaintiffs cannot show that their foreign contacts are certain to be targeted for FAA surveillance. Much less can they show that their own FAA interception is certainly impending. See Lujan v. Defenders of Wildlife, 504 U.S. at 564 n. 2, 112 S.Ct. 2130. Rather, they can only speculate.
Those of our sister circuits to have confronted challenges to other programs authorizing, but not directing, intelligence surveillance have uniformly found that plaintiffs lacked standing precisely because they could not demonstrate actual or imminent interception under such schemes. See United Presbyterian Church v. Reagan, 738 F.2d at 1380 (Scalia, J.) (stating that even if plaintiffs may be “at greater risk than the public at large” to being targeted for surveillance, such risk falls “far short of the ‘genuine threat’ ” of harm required to support standing);18 accord Al–Haramain Islamic Found., Inc. v. Bush, 507 F.3d at 1205 (holding that despite plaintiff’s formal designation as “global terrorist” organization subject to NSA surveillance, threat of such surveillance was too speculative to support standing); 18 ACLU v. NSA, 493 F.3d at 667 (Batchelder, J.) (holding that plaintiffs who adduced no evidence that NSA “actually intercepted (or will actually intercept) any of their conversations” could not rely on “a possibility ” of future interception to

establish standing (emphasis in original)); id. at 689 n. 2 (Gibbons, J., concurring) (distinguishing between persons demonstrably subject to challenged policy, and persons who merely fear that policy may be enforced against them, in concluding that plaintiffs lacked standing to challenge warrantless NSA surveillance program that might target persons with whom they regularly communicated).

18

In Al–Haramain, the inadvertent disclosure of a

classified document indicated that the plaintiffs had in

fact been intercepted by NSA surveillance.

Nevertheless, because the document was protected by

the state secrets privilege, the court concluded that

plaintiffs lacked standing because they failed to point to

any admissible evidence that their fear of interception

was more than conjectural. See Al–Haramain Islamic

Found., Inc. v. Bush, 507 F.3d at 1205.

The panel dismisses these cases as not binding on this court. See Amnesty Int’l USA v. Clapper, 638 F.3d at 149. True *188 enough, but the fact remains: their reasoning comports with the Supreme Court’s holdings in Lyons, Laird, and Laidlaw, whereas the panel’s does not.19 The court should convene en banc to eliminate the unnecessary circuit split created by the panel decision.

19

Judge Lynch attempts further to distinguish these cases

factually, asserting that United Presbyterian Church

presents a broader challenge than this case, see Lynch,

J., Op., ante at [170–71] (contrasting challenge to

constitutionality of entire national intelligence

gathering system in that case with challenge to specific

statute in this case), and ACLU v. NSA a narrower one,

see id. at [171] (contrasting challenge to NSA

warrantless surveillance program targeting persons

associated with al Qaeda in that case with challenge to

statute that permits dragnet surveillance here). He does

not explain, however, how these differences make it

easier for these plaintiffs to establish standing.

Judge Lynch also submits that the injury at issue in

United Presbyterian Church was limited to

subjective chilling, whereas the plaintiffs here

“suffered concrete harms—including the expenditure

of funds.” Id. at [171]. In fact, the plaintiffs in United

Presbyterian Church alleged past surveillance plus

subjective chilling. See United Presbyterian Church

v. Reagan, 738 F.2d at 1380 (“The third kind of harm

appellants allege is that some of them have been or

are currently subjected to unlawful surveillance.”).

Plaintiffs here do not claim any past FAA

surveillance. No matter. The facts alleged in United

Presbyterian Church cannot satisfy standing under

19

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the rules enunciated in City of Los Angeles v. Lyons, 461 U.S. at 107 & n. 8, 103 S.Ct. 1660, and Laird v. Tatum, 408 U.S. at 10–11, 92 S.Ct. 2318. And for the reasons discussed, see supra Part 3, no different conclusion is warranted by plaintiffs’ purported expenditures to avoid feared FAA interception when Lyons and Laird are properly construed consistent with Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. at 184, 120 S.Ct. 693. Judge Lynch states that in ACLU v. NSA, “the government argued that it would not be able to address the question of standing without disclosing state secrets,” whereas here, the government did not invoke the state secrets privilege. Lynch, J., Op., ante at [171]. As I read ACLU v. NSA, the government invoked the state secrets privilege not for the reason stated by Judge Lynch, but “to bar the discovery or admission of evidence” by plaintiffs of evidence that might compromise national security. ACLU v. NSA, 493 F.3d at 650 (Batchelder, J.). In short, the government’s argument was not that it could not address standing without the disclosure of this evidence, but that “without the privileged information, none of the named plaintiffs could establish standing.” Id. Deciding the case “solely on the publicly available information that was admitted by the district court and made a part of its record,” id. at 650 n. 3, the Sixth Circuit concluded that the plaintiffs failed to establish standing under the principles established in Lyons, Laird, and Laidlaw. Thus, raising the specter of the state secrets privilege in this case is a red herring. The plaintiffs, who never sought any discovery that was denied under that privilege, simply do not demonstrate standing under binding Supreme Court precedent.
6. Statutory “Gates” to FAA Interception, Including Judicial Review, Make Plaintiffs’ Interception Particularly Speculative
Plaintiffs’ standing burden is, in fact, heavier in this case than in those confronting our sister circuits. In each of those cases, the challenged programs involved intelligence surveillance conducted under executive authority without congressional authorization or judicial review. By contrast, the powers of all three branches of the federal government are united to support FAA surveillance. See United States v. Abu–Jihaad, 630 F.3d at 121 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–37, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring)). More to the point for purposes

of standing, when Congress authorized FAA surveillance, it erected a number of statutory “gates” through which the executive must pass before it can intercept any communications. At each gate, the sphere of possible interceptions can be narrowed, *189 whether by limitations on targeting, minimization requirements, judicial review, or a Fourth Amendment mandate. Thus, to demonstrate that they are subject to actual or imminent FAA surveillance, plaintiffs must show not only that it is certain that the executive will target their foreign contacts—which plaintiffs cannot do—but also that interception of these particular contacts (and, coincidentally, plaintiffs themselves) is certain to take place despite required targeting limits, minimization, judicial review, and the statute’s overarching Fourth Amendment mandate.
The decision in In re FISA Section 105B Directives, 551 F.3d at 1013–14 & n. 7, demonstrates why plaintiffs cannot show that their interception is certain notwithstanding the targeting and minimization procedures required by the FAA. As for judicial review, the panel’s dismissal of that intermediate step notably fails to mention the FISA court’s obligation to make an independent Fourth Amendment finding before issuing any FAA order. Instead, the panel implies that FISA court judges will simply rubber stamp FAA surveillance applications and, in support, cites empirical evidence showing that, in 2008, FISA court judges approved 2,081 of 2,082 surveillance applications. See Amnesty Int’l USA v. Clapper, 638 F.3d at 140 (acknowledging that evidence does not indicate “how many of these applications, if any, came after the FAA was enacted on July 10, 2008”). I respectfully disagree. The statistics merit little consideration; they could just as easily reflect the executive’s scrupulous compliance with statutory requirements before submitting applications for judicial review. See generally In re FISA Section 105B Directives, 551 F.3d at 1007 (recognizing that executive was more protective than PAA required in conducting warrantless surveillance under that statute).
More important, the panel fails to tell the whole story when it states that the FISA court “must” order FAA surveillance if the executive’s certification “conforms to the statutory requirements.” Amnesty Int’l USA v. Clapper, 638 F.3d at 139. To be sure, the FISA court must find that the executive’s certification “contains all the required elements.” 50 U.S.C. § 1881a(i)(3)(A). But it must further find for itself that the executive’s targeting and minimization procedures conform to all statutory requirements and are consistent “with the fourth
20

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amendment.” Id. Far from cabining judicial review, this provision was intended to “ensur[e] FISA Court involvement in any aspect of the new procedure for targeting foreigners outside the United States that could involve U.S. persons.” 154 Cong. Rec. S6181 (daily ed. June 26, 2008) (statement of Sen. Rockefeller, then-Chairman, S. Select Comm. on Intelligence); see also 154 Cong. Rec. S6389 (daily ed. July 8, 2008) (sectional analysis of FAA presented by Sen. Bond) (explaining that if FISA court determines that targeting and minimization procedures are inconsistent with FAA’s requirements or Fourth Amendment, then it “shall order the Government, at its election, to correct any deficiencies or cease, or not begin, the acquisition”).20

20

Judge Lynch persists in minimizing the FAA’s Fourth

Amendment mandate by stating that the FISA court

determines only if “the government’s general

procedures ” satisfy the Fourth Amendment. Lynch, J.,

Op., ante at [166–67] (emphasis in original). Those

“general procedures,” however, pertain to targeting,

i.e., identifying who will be intercepted, and

minimization, i.e., deciding what can be intercepted,

surely core Fourth Amendment concerns. Further, the

statute’s Fourth Amendment requirement applies

generally to the conduct of FAA surveillance, see 50

U.S.C. § 1881a(b)(5), which makes it more difficult to

cabin as Judge Lynch suggests.

*190 There is no reason to think that the Article III judges who serve on the FISA court will be timid in exercising this review authority. Well before the FAA was enacted, the FISA Court of Review ruled that FISA court judges were authorized to scrutinize government applications, including “certifications,” and to seek more information as warranted to ensure compliance with statutory requirements. In re Sealed Case, 310 F.3d 717, 735–36 (FISA Ct.Rev.2002). Thus, they can be expected to do the same in conducting the constitutional review mandated by the FAA. See generally In re FISA Section 105B Directives, 551 F.3d at 1008 (noting that, in reviewing constitutional challenge to PAA, FISA court “handed down a meticulous opinion”).21

21

The FISA court’s decision in In re Proceedings

Required by § 702(i) of the FISA Amendments Act of

2008, No. Misc. 08–01, slip op. (FISA Ct. Aug. 27,

2008), cited by plaintiffs in their brief on appeal, is not

to the contrary. The court there adopted the ACLU’s

characterization of the court’s role in FAA proceedings

as “narrowly circumscribed,” id. at 3 (internal quotation

marks omitted), only to explain that its statutory obligation is to review the executive’s certification, targeting, and minimization procedures, not to conduct “a facial review” of the FAA’s constitutionality, id. at 9–10. The court specifically acknowledged, however, that for any FAA application, it “must decide whether the targeting and minimization procedures are consistent with the Fourth Amendment.” Id. at 9 (citing 50 U.S.C. § 1881a(i)(3)(A)).
In sum, plaintiffs fail to establish standing because they can only speculate that they will ever be intercepted by FAA surveillance.
7. Plaintiffs Fail to Demonstrate Redressability
Having recast the standing standard to allow plaintiffs to carry their injury burden by reference to self-incurred costs, and their causation burden by demonstration of a not-irrational fear of FAA interception, the panel addressed the final constitutional requirement, redressability, in a footnote. Acknowledging that the element had received little attention from the district court or the parties, the panel nevertheless found it satisfied, explaining that plaintiffs’ injuries, i.e., their costs, stemmed from a reasonable fear of FAA interception “and if a court grants their requested relief—an injunction prohibiting the government from conducting surveillance under the FAA—the feared surveillance would no longer be permitted and therefore would, presumably, no longer be carried out.” Amnesty Int’l USA v. Clapper, 638 F.3d at 140 n. 24. The requirement cannot be dismissed so easily.
To demonstrate redressability, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks omitted); accord Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at 181, 120 S.Ct. 693. Under the panel’s analysis, the relevant injury is not FAA interception, but plaintiffs’ professional costs. Thus, to carry their burden on redressability, plaintiffs had to adduce evidence that enjoining FAA surveillance would relieve them of the need to incur such costs. Such a conclusion cannot withstand scrutiny.
Plaintiffs’ theory of standing is predicated on the assertion that their foreign contacts are “likely” to be targeted for FAA surveillance because they are “people the U.S.
21

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

government believes or believed to be associated with terrorist organizations, political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government, and people located in geographic areas that are a special focus of the U.S. *191 government’s counterterrorism or diplomatic efforts.” Amnesty Int’l USA v. Clapper, 638 F.3d at 127 (internal quotation marks omitted). But if the United States intelligence community is as inclined to monitor such persons’ communications as plaintiffs assert, then enjoining the FAA will merely eliminate one of several means for achieving that objective. It will not shield plaintiffs or their contacts from the universe of alternative electronic surveillance options available to the government. After FISA’s original enactment, warrantless radio surveillance of international communications carried by satellite and wire surveillance of international communications performed on foreign soil or offshore continued to be conducted outside that statutory regime, as long as United States persons located in this country were not specifically targeted.22

22

The Supreme Court has never ruled that foreign

intelligence surveillance must be conducted pursuant to

court order. See United States v. Abu–Jihaad, 630 F.3d

at 121 (noting that question remains unresolved by

Supreme Court). Rather, Congress has required, and the

executive has agreed, that some foreign intelligence

surveillance will be so conducted as specified in FISA

and various amendments thereto, such as the FAA. See

id. (recognizing that when executive conducts foreign

intelligence surveillance pursuant to statutory authority

and court order, the whole of federal authority unites in

defining such activity as reasonable search).

While FISA provides the “exclusive means” for

conducting “electronic surveillance” as that term is

defined in that statute, 18 U.S.C. § 2511(2)(f), this

does not mean that foreign intelligence surveillance

not authorized by FISA is proscribed, an inference

that might mistakenly be drawn from the panel’s

observation that “[t]he FAA was passed specifically

to permit surveillance that was not permitted by

FISA but that was believed necessary to protect the

national security,” Amnesty Int’l USA v. Clapper,

638 F.3d at 138. Indeed, Judge Lynch only adds to

the confusion when he states that “the FAA

indisputably and significantly broadens the risk of

interception, lowers the government’s

probable-cause burden, and decreases the oversight

role” of the FISA court. Lynch, J., Op., ante at [166].

The statement rests on an assumption that is not the

case: that all surveillance now covered by the FAA

was previously covered by FISA.

In fact, FISA’s history shows that Congress

specifically chose not to subject all foreign intelligence surveillance to that law. See, e.g., S.Rep. No. 95–701, at 34 (1978), 1978 U.S.C.C.A.N. 3973, 4003 (explaining that FISA warrant requirement “does not apply to the acquisition of the contents of international or foreign communications, where the contents are not acquired by intentionally targeting a particular known U.S. person who is in the United States”); id. at 71 (stating that FISA “does not deal with international signals intelligence activities as currently engaged in by the [NSA] and electronic surveillance conducted outside the United States”). Nor did Congress extend FISA to all foreign intelligence surveillance in which a United States person might coincidentally be intercepted. See, e.g., Foreign Intelligence Electronic Surveillance: Hearing Before the Subcomm. on Legis. of the H. Permanent Select Comm. on Intelligence, 95th Cong., 2d Sess., at 172 (Jan. 10, 1978) (statement of Sen. Kennedy) (stating that “targeted sweeps” aimed at known United States persons in this country would be covered by FISA, but “nontargeted sweeps” by the NSA “would not be covered”). Some thirty years later, in hearings leading to the enactment of the FAA, the Directors of National Intelligence and the Central Intelligence Agency (“CIA”) explained why technological assumptions informing FISA had become outmoded and created confusion as to what foreign intelligence surveillance did and did not fall within that law’s parameters. See, e.g., Modernization of the Foreign Intelligence Surveillance Act: Hearing Before the S. Select Comm. on Intelligence, 110th Cong., 1st Sess., at 19 (May 1, 2007) (statement of Adm. J. Michael McConnell, Director of National Intelligence) (“Legislators in 1978 could not have been expected to predict an integrated global communications grid that makes geography an increasingly irrelevant factor. Today, a single communication can transit the world even if the two people communicating are only located a few miles apart. And yet simply because our law has not kept pace with technology, communications intended to be excluded from FISA are in fact included.”); FISA for the 21st Century: Hearing Before the S. Comm. on the Judiciary, 109th Cong., 2d Sess., at 9 (July 26, 2006) (statement of Gen. Michael Hayden, Director, CIA and former Director, NSA) (observing that “NSA may have multiple opportunities to intercept [a communication] as it moves and as it changes medium” and that “[a]s long as a communication is otherwise lawfully targeted, I believe we should be indifferent to where the intercept is achieved”). In response to these concerns, the FAA authorizes the executive, upon FISA court order, to secure from electronic communication service providers
22

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assistance to acquire foreign intelligence information from non-United States persons located outside this country. Contrary to the panel’s characterization, the FAA does not authorize conduct that Congress intended to proscribe in FISA. Rather, it subjects some foreign intelligence surveillance that previously may have been conducted pursuant to executive order to new statutory limitations, including judicial review. At the same time, it clarifies that some foreign intelligence surveillance that might have been thought to fall within FISA’s original terms should instead be conducted pursuant to the requirements and protections outlined in the FAA. See generally United States v. Abu–Jihaad, 630 F.3d at 121–22 (“[T]he Constitution’s warrant requirement is flexible, so that different standards may be compatible with the Fourth Amendment in light of the different purposes and practical considerations at issue.” (internal quotation marks omitted)). It is in this context that I question whether plaintiffs’ profession that they have greater reason to fear interception after the FAA’s enactment than before can withstand the required rigorous scrutiny.

Thus, even if FAA surveillance were enjoined, the government could still conduct *192 surveillance by other means, such as FISA-exempt NSA surveillance programs or, in certain cases, FISA itself. Whether or not these alternatives would be more difficult or time-consuming is not the point. The critical fact is that plaintiffs would not know whether such alternative surveillance was being conducted with respect to contacts whom plaintiffs assert are of obvious foreign intelligence interest. See generally ACLU v. NSA, 493 F.3d at 671 (Batchelder, J.) (concluding that enjoining NSA warrantless surveillance of terrorists and their affiliates would not redress plaintiffs’ fears of interception because of likelihood that FISA court would authorize such interceptions). Moreover, the United States is hardly the only government conducting electronic surveillance. Even without the FAA, then, plaintiffs would confront a real possibility that their foreign contacts, particularly those believed to be associated with terrorist organizations or opposed to established governments, would be prime targets for surveillance by other countries, including their own.23 Thus, neither their fear of interception nor their need to incur costs to avoid such interception would be redressed by enjoining FAA surveillance.

23

See, e.g., Walsh Decl. ¶ 11 (acknowledging that Cuban

contacts “believe that their calls could be monitored by

the Cuban government,” which makes them disinclined

to speak about Cuban policy, but willing to speak—presumably critically—about U.S. policy).
Apparently, the government made this point at oral argument on appeal. See Amnesty Int’l USA v. Clapper, 638 F.3d at 129 n. 13 (observing that “government professed itself ‘puzzled’ as to why the plaintiffs had not been just as nervous about being monitored before the FAA was enacted as they are now”). The panel, however, concluded that the government could not question the genuineness of plaintiffs’ assertions as to the impact of the FAA on their work because it had failed to submit contrary evidence or to seek a hearing in the district court. See id. I am not convinced. A standing determination is not a debate round, where an unchallenged point, however unsubstantiated, is scored for its proponent. See generally Lujan v. Defenders of Wildlife, 504 U.S. at 581, 112 S.Ct. 2130 (Kennedy, J., concurring) (observing *193 that standing requirements ensure that “legal questions ... will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action” (internal quotation marks omitted)). Rather, as earlier noted, a federal court is under an “independent obligation to consider standing, even when the parties do not call it into question.” Arizona Christian Sch. Tuition Org. v. Winn, 131 S.Ct. at 1454; see Summers v. Earth Island Inst., 129 S.Ct. at 1152. That obligation requires an especially rigorous inquiry into self-serving assertions unsupported by specific facts. Indeed, the obligation applies with particular force where, as here, the injury to be redressed is self-inflicted, making it appropriate to consider whether, if the fear is genuine, it would persist even if the relief sought were granted.
The concerns raised by the panel’s redressability analysis only reinforce the need to review this case en banc. I emphasize, however, that such review, if conducted in accordance with established Supreme Court precedent, would never reach the issue of redressability. Plaintiffs’ standing claim fails at the injury step of analysis because they have not demonstrated that they are subject to actual or imminent FAA interception.
* * *
To summarize, this case demands en banc review because the panel’s recognition of plaintiffs’ standing based on costs incurred to avoid a not-irrational fear of FAA interception effectively establishes a novel, reduced
23

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
standing standard that
(1) cannot be substituted for the “especially rigorous” inquiry required when a party challenges an act of Congress that cannot target him;
(2) fails to address prudential concerns raised by plaintiffs’ articulation of their Fourth Amendment claim;
(3) cannot be reconciled with Supreme Court precedent (a) rejecting subjective fear as a basis for standing, and (b) recognizing standing based on forbearance action only when, but for his forbearance, a plaintiff would certainly be subject to the challenged conduct;
(4) is not, in any event, supported by “substantial facts” in this case;
(5) creates a split between this court and three of our sister circuits in analyzing standing to challenge foreign intelligence surveillance programs;
(6) misconstrues the FAA in dismissing various intervening steps that preclude plaintiffs from demonstrating that they are subject to actual or imminent interception under that statute; and
(7) assumes redressability without rigorous inquiry or substantial facts.
Insofar as the court today denies rehearing en banc, it is not the six judges who dissent from that decision who “close” any courthouse doors. Lynch, J., Op., ante at [172]. Rather, it is our remaining colleagues who decline to consider whether a questionable standing standard should become the law of this circuit. There is, however, another courthouse, and those of us here in dissent can only hope that its doors will be opened for further discussion of this case.
DEBRA ANN LIVINGSTON, Circuit Judge, with whom Chief Judge JACOBS, Judge CABRANES, Judge RAGGI, and Judge WESLEY join, dissenting from the denial of rehearing en banc:
I join fully in Judge Raggi’s scholarly opinion dissenting from the denial of rehearing en banc. I write separately only to address the degree to which the panel’s *194 opinion, in frank disregard of clear Supreme Court authority, threatens a sub silentio transformation of this Circuit’s case law regarding so-called “probabilistic

harm”—meaning, the narrow circumstances in which this Court has recognized injury in fact to exist based on the risk of some future harm.
The Supreme Court has repeatedly instructed that injury in fact must be actual or imminent to afford Article III standing to a would-be plaintiff. Thus, in Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), the Court, summarizing its case law, stated flatly that threatened injuries must be “certainly impending” to constitute injury in fact: “[W]e have said many times before and reiterate today: Allegations of possible future injury do not satisfy the requirements of Art[icle] III.” Id. at 158, 110 S.Ct. 1717. Only two Terms ago, the Court affirmed that even the statistical probability of future harm is not enough: standing, the Court said, “ ‘is not “an ingenious academic exercise in the conceivable” ... [but] requires ... a factual showing of perceptible harm.’ ” Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1152, 173 L.Ed.2d 1 (2009) (alteration in original) (omissions in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 566, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
Despite such repeated admonitions, the panel concluded that the plaintiffs established standing based on their alleged fear of future surveillance because there is an “objectively reasonable likelihood” that plaintiffs’ communications will, at some point, be monitored. Amnesty Int’l USA v. Clapper, 638 F.3d 118, 134 (2d Cir.2011). Even assuming such a likelihood (which, in fact, has not been shown), the panel did not explain its disregard of the Supreme Court’s requirement that injury must be actual or imminently threatened, see, e.g., Summers, 129 S.Ct. at 1148, nor did it justify its attempt at expansion of the limited circumstances in which this Circuit has found injury in fact to be present based on a risk of future harm.
Judge Lynch, in his opinion concurring in the denial of en banc review, answers this charge with a simple, “Not so.” He then cites to the plaintiffs’ supposed present injury—the costs they allegedly incurred as a result of their fear of surveillance—in an effort to substantiate his point. Lynch, J., Op. Concurring in Denial of Reh’g En Banc 168 n. 6. But the plaintiffs here relied on two asserted injuries in their bid for standing—not only on their present costs, but also on their asserted fear of future surveillance. The panel opinion addresses both. With regard specifically to the future injury, moreover—meaning, the plaintiffs’ claimed fear of surveillance pursuant to the FISA Amendments Act of
24

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
2008 (“FAA”) at some future point—the panel opinion concludes, remarkably, as follows:
To determine whether the plaintiffs have standing under their future-injury theory, we would need to determine whether the FAA creates an objectively reasonable likelihood that the plaintiffs’ communications are being or will be monitored under the FAA. As noted above, we conclude that the future injuries alleged by the plaintiffs are indeed sufficiently likely [to occur] to confer standing under the test established in the case law for basing standing on the risk of future harm.
638 F.3d at 134 (emphasis added). With respect, this simply ignores the Supreme Court’s admonition that “[a]llegations of possible future injury do not satisfy the requirements of Art[icle] III.” Whitmore, 495 U.S. at 158, 110 S.Ct. 1717. Neither the panel opinion nor Judge Lynch’s concurrence, moreover, offers any refutation *195 of the analysis here, nor even a word of justification for this wholesale broadening of the narrow circumstances in which this Circuit has found injury in fact to be present based on a risk of future harm.
Having proffered only a token response to the serious questions that his standing analysis raises, Judge Lynch concludes his concurrence by suggesting that anyone who disagrees with the panel’s novel approach to standing seeks without warrant “to close the courthouse doors.” Lynch, J., Op., ante at 172. This charge is perhaps ironic, given that six members of this Court—a full half of its active judges—have vigorously sought to open those doors to a more careful examination of the panel’s startling standing conclusions but have been thwarted in this effort, and despite the universally acknowledged “exceptional importance” of the issue presented.
Again with due respect, the Constitution sets limits not only on the power of Congress, as Judge Lynch’s concurrence affirms, but also on that of judges. It is thus not the “glory of our system,” as the concurrence would have it, see Lynch, J., Op., ante at 172, that elected leaders must answer to unelected judges whenever a challenge is asserted. Article III of the Constitution instead limits the judicial power “to redress[ing] or

prevent[ing] actual or imminently threatened injury to persons caused by private or official violation of law.” Summers, 129 S.Ct. at 1148. As the Supreme Court said only two Terms ago, “[e]xcept when necessary in the execution of that function, courts have no charter to review and revise legislative and executive action.” Id.
In concluding, without explanation, that injury in fact has been established here based on a mere “reasonable likelihood” that the plaintiffs might one day be surveilled, the panel opinion in this matter provokes a reasonable fear, but not of an obstinate closure of courthouse doors. The fear, instead, is of judges arrogating to themselves a power inconsistent with both our constitutional design and the role of courts in a democratic society. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The panel’s wholesale (if unacknowledged) disavowal of Supreme Court precedent in its assessment of the plaintiffs’ “future injury” claim thus represents a further basis—in addition to the many identified by Judge Raggi in her thorough and thoughtful opinion—for en banc review.
* * *
As Judge Raggi’s dissent points out, the panel’s conclusion that the plaintiffs have established standing was based in part on an alleged “present injury”—their self-inflicted costs purportedly incurred as a result of a claimed fear of surveillance under the FAA. Amnesty Int’l, 638 F.3d at 138. I share Judge Raggi’s view that the panel failed to demonstrate how an injury of this sort can be termed “fairly traceable” to the FAA under the existing precedents of the Supreme Court or this Circuit. I note, however, that the panel opinion does not even truly address the degree to which the plaintiffs’ vaguely alleged self-inflicted costs must be shown to be fairly traceable to the FAA in the first place. Rather, it comes to the startling conclusion that because the future surveillance the plaintiffs claim to fear is “sufficiently likely [to occur] to confer standing under the test established in the case law for basing standing on the risk of future harm,” id. at 134, the panel “need not and do[es] not decide whether the degree of likelihood necessary to establish a causal relationship between an actual present injury and the challenged governmental action is as stringent as that necessary for a potential harm in itself to confer standing,” id.
*196 The conclusion that the alleged risk of future surveillance here suffices to constitute injury in fact is truly unprecedented. The panel arrives at it by asserting
25

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
that the standard for assessing an alleged future harm of this sort asks “whether the FAA creates an objectively reasonable likelihood that the plaintiffs’ communications are being or will be monitored under the FAA.” Id. The panel opinion provides no authority for this novel standard but instead obscures the lack of authority for its “future injury” holding in two ways.
First, the panel conflates the rare cases in which standing has been established based on an increased risk of harm with a distinct line of cases—inapplicable here—in which a plaintiff undisputedly subject to a particular statute is permitted to bring a pre-enforcement facial challenge even though he cannot establish with certainty that he will face prosecution should he violate the statute’s terms. Thus, the opinion asserts as a general matter that “where a ‘plaintiff’s interpretation of a statute is “reasonable enough” and under that interpretation the plaintiff “may legitimately fear that it will face enforcement of the statute,” then the plaintiff has standing to challenge the statute.’ ” Id. at 138 (quoting Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir.2008) (quoting Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 383 (2d Cir.2000))). The cited cases, however, do not reflect a general endorsement of the proposition that a plaintiff has standing to challenge any statute from which he “legitimately fear[s]” harm based on a “reasonable enough” interpretation, nor could they, consistent with the Supreme Court’s case law regarding standing based on future harm. Rather, these cases reflect a particular standard applicable to the specific context of pre-enforcement facial challenges, under which “[a] plaintiff ... need not demonstrate to a certainty that it will be prosecuted under the statute to show injury, but only that it has ‘an actual and well-founded fear that the law will be enforced against’ it.” Vt. Right to Life Comm., 221 F.3d at 382 (quoting Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988)). Because the FAA is not a regulatory statute that could be enforced against any plaintiff in this proceeding, these pre-enforcement facial challenge cases are of no relevance here.
The panel next purports to rely on the Supreme Court’s decision in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), a case it terms “the seminal case on standing based on probabilistic or prospective harm.” Amnesty Int’l, 638 F.3d at 136. Of course, Lyons is the same case that the Supreme Court described two Terms ago as “an opinion that did not find standing, so the seeming expansiveness of [its] test made not a bit of difference.” Summers, 129 S.Ct. at 1153.1

Moreover, the Summers Court, in rejecting the claim that Lyons set out a new and less stringent general standard for the use of prospective harm to establish Article III standing, went on expressly to decline to replace the familiar requirement that a future harm be “imminent” to constitute injury for the purposes of standing with one that would grant standing based on a mere “realistic threat” *197 that challenged activity will recur “in the reasonably near future.” Id. at 1152–53 (italics omitted) (internal quotation marks omitted). Plainly, Lyons presents no authority for the notion that the majority’s novel “objectively reasonable likelihood” test should be substituted for the Supreme Court’s clear statement that “[a] threatened injury must be ‘certainly impending’ to constitute injury in fact.” Whitmore, 495 U.S. at 158, 110 S.Ct. 1717 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)) (internal quotation marks omitted).

1

Curtis v. City of New Haven, 726 F.2d 65 (2d

Cir.1984), described by the panel as “articulat[ing] the

principle of Lyons as requiring an inquiry into the

probability of future harm,” Amnesty Int’l, 638 F.3d at

136, is similarly a case in which this Court denied

standing, see Curtis, 726 F.2d at 68–69, and thus any

attempt by the panel to make use of the expansiveness

of the standing principle Curtis supposedly articulated

is subject to the same critique.

As this Court has expressly acknowledged in the past, the case law recognizing that, under certain circumstances, “threatened harm in the form of an increased risk of future injury may serve as an injury-in-fact for Article III standing purposes” has developed largely in the courts of appeals, Baur v. Veneman, 352 F.3d 625, 633 (2d Cir.2003), and, in particular, in the specific context of environmental and health-related litigation, see Natural Res. Def. Council v. EPA, 464 F.3d 1, 6 (D.C.Cir.2006) (“[W]e have recognized that increases in risk can at times be ‘injuries in fact’ sufficient to confer standing. Environmental and health injuries often are purely probabilistic.” (emphasis added) (citation omitted)); see also Ctr. for Law and Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161 (D.C.Cir.2005) (“Outside of increased exposure to environmental harms, hypothesized ‘increased risk’ has never been deemed sufficient ‘injury.’ ”); Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir.2000) (en banc) (“Threatened environmental injury is by nature probabilistic.”). To the limited extent the Supreme Court has itself suggested that increased risk may be relevant for
26

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

standing purposes, moreover, it too has done so in the specific context of suits alleging environmental harm. See Massachusetts v. EPA, 549 U.S. 497, 520–23, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (recognizing as injury a state’s actual loss of coastal land and the risk of future loss over the course of the next century); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183–85, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (concluding that environmental plaintiffs subject to pollution establish injury in fact when the pollution lessens their aesthetic and recreational enjoyment of a certain place they visit, even if uncertainty exists as to the environmental harm being caused). These cases announce no general departure from the “actual or imminent” standard. Indeed, the Supreme Court’s recent decision in Massachusetts v. EPA, which found injury in fact arising in part from the risk of future loss of coastal land, did so only in a context in which it also carefully noted that at least two special circumstances—not present here—justified relaxation of the traditional standing rules that would otherwise apply.2

2

Thus, the Court noted that Congress had accorded the

litigants in Massachusetts v. EPA a procedural right to

protect their concrete interests, such that these litigants

could “assert that right without meeting all the normal

standards for redressability and immediacy.” 549 U.S.

at 517–18, 127 S.Ct. 1438 (quoting Lujan, 504 U.S. at

572 n. 7, 112 S.Ct. 2130) (internal quotation marks

omitted). In addition, the Court also relied on the fact

that the party seeking review was a sovereign State

rather than a private individual—a factor the Court

determined entitled the Commonwealth to “special

solicitude” in its standing analysis. Id. at 520, 127 S.Ct.

1438. The absence of both circumstances here limits

the applicability of Massachusetts v. EPA to this case.

See Richard H. Fallon, Jr., John F. Manning, Daniel J.

Meltzer & David L. Shapiro, Hart and Wechsler’s The

Federal Courts and the Federal System 145–46 (6th

ed.2009) (noting the diversity of grounds relied on by

the Supreme Court in Massachusetts v. EPA and

querying whether this aspect of the decision may limit

its import in future standing cases).

*198 “Probabilistic” injury has thus never been recognized by the Supreme Court or this Circuit as sufficient as a general matter to constitute injury in fact for the purposes of Article III standing, and for good reason—as the D.C. Circuit has noted, “were all purely speculative ‘increased risks’ deemed injurious, the entire requirement of ‘actual or imminent injury’ would be rendered moot, because all hypothesized, non-imminent

‘injuries’ could be dressed up as ‘increased risk of future injury.’ ” Ctr. for Law and Educ., 396 F.3d at 1161. Such an approach would threaten grossly to distend the Judicial Branch’s proper role of deciding actual cases or controversies, rendering almost any governmental action or inaction at least potentially subject to judicial review so long as a court was willing to deem it “reasonably likely” that a plaintiff might one day be affected as a result.
This Circuit’s principal “probabilistic injury” case (prior to the dramatic expansion of the category that the panel opinion threatens to effect) was Baur, a case in which the majority expressly noted that it “need not decide as a matter of law whether enhanced risk generally qualifies as sufficient injury to confer standing” and did not “purport to imply that we would adopt such a broad view.” Baur, 352 F.3d at 634. Rather, it held only that “[i]n the specific context of food and drug safety suits, ... such injuries are cognizable for standing purposes, where the plaintiff alleges exposure to potentially harmful products,” id., and those products pose a “credible threat of harm,” id. at 637 (internal quotation marks omitted). Acknowledging that “this type of injury has been most commonly recognized in environmental cases,” the Baur panel critically relied on two case-specific factors, neither of which is present here, to arrive at this holding. Id. at 634. First, “[l]ike threatened environmental harm, the potential harm from exposure to dangerous food products or drugs ‘is by nature probabilistic,’ yet an unreasonable exposure to risk may itself cause cognizable injury.” Id. (quoting Gaston Copper, 204 F.3d at 160). Second, “the very purpose of [the statutes alleged to have been violated] is to ensure the safety of the nation’s food supply and to minimize the risk to public health from potentially dangerous food and drug products,” further bolstering the case for recognizing increased risk as a sufficiently concrete and imminent injury in fact in that specific context. Id.
The panel identified no such factors in this case, nor did it engage in any similar analysis in extending the applicability of these probabilistic harm cases, decided in highly specific factual circumstances, to a setting in which the plaintiffs assert, at most, a risk of being incidentally intercepted by foreign surveillance conducted by the United States. Instead, the panel opinion states baldly that a threatened injury may be “sufficiently probable to support standing,” with the ultimate inquiry “qualitative, not quantitative.” Amnesty Int’l, 638 F.3d at 137 (quoting Baur, 352 F.3d at 637) (internal quotation marks omitted). While recognizing that the standing inquiry is “highly case-specific,” id. (quoting Baur, 352 F.3d at 637) (internal quotation marks omitted), the panel
27

Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
rests its conclusion that the future harm asserted here is “sufficiently probable” solely on the fact that the FAA is “susceptible to ... an interpretation” whereby it authorizes broad surveillance, id. at 138, and that the plaintiffs are “reasonable” in their assessment that they communicate with people who are likely targets of surveillance under the Act, id. at 139. However, even if these assertions were sufficient to establish an enhanced risk of surveillance (and I share Judge Raggi’s view that they are far too speculative *199 to do so), the panel provides no justification for the more basic question of why such increased risk should be treated as injury in the first place.
Indeed, a careful and context-sensitive analysis of previous probabilistic harm cases would suggest that their logic should not be extended to challenges to surveillance that is not actual or certainly impending, but instead only feared. As Judge Raggi’s dissent highlights, all the previous cases cited by the panel in which standing has been granted based on the risk of a future probabilistic injury have involved plaintiffs who had established that they were subject to the conduct they were challenging, with the only uncertainty being whether harm would ultimately result from the conduct in question. See Raggi, J., Op. at 181–85; see also Laidlaw, 528 U.S. at 184, 120 S.Ct. 693 (“[I]t is undisputed that Laidlaw’s unlawful conduct—discharging pollutants in excess of permit limits—was occurring at the time the complaint was filed.... [T]he only ‘subjective’ issue here is ‘[t]he reasonableness of [the] fear’ that led the affiants to respond to that concededly ongoing conduct....” (final two alterations in original)). None involved uncertainty as to whether the plaintiffs were in fact subject to the challenged conduct in the first place, as is the case here. Indeed, where the Supreme Court has confronted uncertainty of the latter type, it has denied standing even in the context of environmental harms. See Summers, 129 S.Ct. at 1152 (rejecting organizational standing even though it was “possible—perhaps even likely” that a member of the plaintiff organization used an area of the National Forest System affected by a challenged activity but no member established that they did in fact use an affected area).
In addition, unlike the environmental or health-related suits, the purported injury at issue here is not “inherently probabilistic” in the sense that it may simply be impossible, based on the limits of scientific capacity or human understanding, to know whether, for example, certain allegedly polluting activity to which would-be plaintiffs are clearly subject will in the future inflict harmful effects on them. Here, the plaintiffs’

communications either are or are not being intercepted. The plaintiffs sought no discovery as to standing, despite the fact that it was their burden to show actual or imminently threatened harm. To the extent plaintiffs cannot establish the fact of surveillance either way, this is a product of: (1) the judgment of our coordinate branches (based no doubt on their own “realistic understanding of the world,” Amnesty Int’l, 638 F.3d at 139) that foreign intelligence surveillance must be conducted in secrecy in order for it to be effective in safeguarding the national security; and (2) plaintiffs’ own election not to seek discovery as to standing, and thereafter to overcome (if able) any objections to such discovery, including the application of the state secrets privilege, should it have been asserted. See United States v. Aref, 533 F.3d 72, 78–79 (2d Cir.2008) (“Th[e] venerable [state secrets] evidentiary privilege ‘allows the government to withhold information from discovery when disclosure would be inimical to national security.’ ” (quoting Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 546 (2d Cir.1991))). It is difficult for me to fathom how any of these circumstances justifies a relaxed standing burden for the plaintiffs here, and certainly, the panel opinion fails to offer any such justification by ignoring the context-sensitive nature of the “probabilistic harm” standing cases altogether.
* * *
The standing requirement is designed to “maintain[ ] the public’s confidence in an unelected but restrained Federal Judiciary,” *200 Ariz. Christian Sch. Tuition Org. v. Winn, ––– U.S. ––––, 131 S.Ct. 1436, 1442, 179 L.Ed.2d 523 (2011), limiting the judiciary “to the traditional role of Anglo–American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law,” Summers, 129 S.Ct. at 1148. Applied faithfully, it prevents the installation of “the federal courts as virtually continuing monitors of the wisdom and soundness” of both legislative and executive action. Laird v. Tatum, 408 U.S. 1, 15, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). In determining when injury in fact has been established, “[a]lthough ‘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 Article III purposes—that the injury is ‘certainly impending.’ ” Lujan, 504 U.S. at 564 n. 2, 112 S.Ct. 2130 (emphasis added by Lujan ) (quoting Whitmore, 495 U.S. at 158, 110 S.Ct. 1717) (internal quotation marks omitted). The breaking point has been reached in this case.
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Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
In light of the fact that these plaintiffs cannot demonstrate even a non-speculative increased risk of surveillance (among many other bases for denying standing here) the panel need not have decided whether an “objectively reasonable” threat of future surveillance was sufficient for Article III standing. Its conclusion nevertheless that such a risk does qualify as injury in fact, however, represents a truly dramatic and unjustified expansion of this Court’s probabilistic harm cases to the inapposite context of government surveillance. By allowing a sweeping facial constitutional challenge to a statute that merely sets out the manner in which the executive branch can conduct certain types of foreign surveillance, based purely on a purported increased threat of surveillance and self-inflicted costs arising out of this asserted fear, the panel ignores the animating concerns of the standing requirement and threatens without justification to transform our existing doctrine regarding claims of future harm. It is a step without support in the case law of the Supreme Court or this Circuit, one contrary to the approaches taken in surveillance cases by our sister circuits, and one not in keeping with the limited role of the judiciary in our constitutional structure. I respectfully dissent from the denial of en banc review.
DENNIS JACOBS, Chief Judge, dissenting from the denial of rehearing in banc:
I concur in Judge Raggi’s and Judge Livingston’s scholarly dissents. I would also subscribe to Judge Koeltl’s opinion dismissing this case for lack of standing. I write separately to make a few points of my own.
The panel opinion repeatedly emphasizes that its impact is on the threshold standing issue only and that it has no bearing on the merits. See Amnesty Int’l USA v. Clapper, 638 F.3d 118, 121, 131, 143 n. 26, 145 (2d Cir.2011). I take the opinion on those terms. The panel opinion does indeed avoid the merits. The panel’s analysis of injury simply credits as sufficient certain averments by the plaintiffs that seem to me inadequate, implausible, and illusory. And the panel’s analysis of redressability, which ordinarily requires a preliminary merits review (to determine if the court could ameliorate some palpable harm to the plaintiffs), is consigned to an uninformative footnote. It is therefore quite so that the panel opinion decides nothing about the merits—and thereby leaves the way clear for dismissal after remand at a stage just beyond the threshold of standing.

*201 That said, I think that it is a defect in the panel opinion that it elides even the glancing review of the merits that is needed to determine if the challenged statute impairs the Fourth Amendment rights of these plaintiffs, or if they suffer an injury that a court can alleviate. That review, which I undertake here, refutes harm and redressability, and should therefore have defeated standing: These plaintiffs and their lawyers are claiming a policy-making role on matters that have no Fourth Amendment impact on them.
* * *
An assortment of lawyers, journalists and activists, and organizations representing such people, facially challenge the constitutionality of § 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C. § 1881a, which was added to FISA by § 101(a)(2) of the FISA Amendments Act of 2008 (the “FAA”).
Their claim is that the FAA lowers the standards for obtaining warrants to surveil foreign persons abroad, which has caused the plaintiffs, who are not foreigners, to develop a reasonable fear of being surveilled when communicating with foreigners around the world who are their journalistic sources, clients, human rights victims, witnesses and so on—all of whom are, in plaintiffs’ estimation, potential objects of surveillance. The plaintiffs contend that this fear compels them to communicate with their clients or foreign contacts only in person, at such trouble and expense as to constitute injury that supports standing.
Three things are ordinarily required for constitutional standing: (1) injury in fact, (2) causality, and (3) redressability. If a plaintiff is not personally subject to the government action, the panel opinion identifies a fourth requirement: a “showing that [the plaintiff] has altered or ceased conduct as a reasonable response to the challenged statute.” Clapper, 638 F.3d at 141 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 184–85, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). The plaintiffs show none of these.
* * *
To support the otherwise-mysterious idea of injury to these plaintiffs (and causation), the panel opinion relies entirely (even credulously) on affidavits submitted by the plaintiffs, describing their supposed anxieties. But these affidavits employ all the lawyer’s arts to convey a devious impression.
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Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

The panel opinion bases its finding of injury and causation entirely on the ethical duties of lawyers and the affidavits of the lawyer plaintiffs.1 So evidence about the non-lawyer plaintiffs (to the extent there is any that specifies an injury) is irrelevant here. (For some reason, the panel’s mandate nevertheless confers standing indiscriminately on all the plaintiffs, including the journalists and various other activists.)

1

The lawyers among the plaintiffs invoke an affidavit of

Prof. Stephen Gillers, which contains a sound review of

the ethical duties of lawyers:

If an attorney has reason to believe that sensitive

and confidential information related to the

representation of a client and transmitted by

telephone, fax, or e-mail is reasonably likely to be

intercepted by others, he or she may not use that

means of communication in exchanging or

collecting the information. He or she must find a

safer mode of communication, if one is available,

which may require communication in person.

Declaration of Prof. Stephen Gillers ¶ 10.

Among the plaintiffs who submitted affidavits, only two are lawyers who represent clients. Scott McKay, a lawyer for Guantanamo Bay detainees, does not specify a single trip he took or a single dollar he spent as a result of the FAA. Instead, he just avers generally that he “minimize[s] the amount of sensitive information that [he] communicate[s] by telephone or *202 email” and that “[w]henever possible, [he] also collect[s] information in person rather than by telephone or email.” Declaration of Scott McKay ¶ 8. Of course, that is what every good lawyer does—on every matter. Sylvia Royce, another lawyer representing a detainee, specifies only a single expense she attributes to the FAA: a trip to Manhattan (not Guantanamo). She avers:
Where information is both especially important and especially sensitive, I have to travel to share information, views and ideas that I would otherwise have been able to exchange by telephone or e-mail. Most recently, I went to New York City to meet with [a French attorney] and another lawyer to talk about [my client’s] case, but I also expect to travel abroad in the future to meet with co-counsel and I

expect to exchange information in our meetings in person that I would not exchange by telephone or email.
Declaration of Sylvia Royce ¶ 7. Yet (as Judge Raggi points out) the FAA had nothing to do with her trip to New York to talk with co-counsel because a call between points inside the United States could not have been tapped under the FAA.
Even if one accepts the truth of these perfunctory affidavits (with their studied vagueness and anticipations of the conveniently unknown future), the declarations contained in them do not establish that either lawyer was injured or incurred expense that had any causal relation to the FAA. Yet, these affidavits provide the only evidence to support the panel’s ruling as to harm and causation.
* * *
The remaining standing issue, redressability, is consigned to a footnote in the panel opinion, a footnote that does not explain how a favorable decision in this case will redress plaintiffs’ supposed injuries. Clapper, 638 F.3d at 140 n. 24. Even if the record disclosed specific instances in which lawyers were injured by the FAA, plaintiffs would still lack standing for the reason identified by Judge Alice Batchelder in ACLU v. NSA, 493 F.3d 644 (6th Cir.2007), an opinion that is not answered head-on by the panel opinion. Any lawyer whose ethical scruples would now prevent electronic contact with his foreign clients out of fear of surveillance would have had to incur the same bother and expense before the FAA, since the FISA Court has already approved thousands of warrants. Id. at 670–72. Thus, the plaintiffs (and the panel opinion) prove too little.
By the same token, the plaintiffs (and the panel opinion) prove too much. The ethical obligation discussed by Prof. Gillers (see supra note 1) has nothing to do with whether the FAA is constitutional: what is “[d]eterminative of how the lawyer may proceed is,” as Prof. Gillers explains, “whether the lawyer has good reason to believe that his or her communications are reasonably likely to be intercepted, even if the interception is lawful.” See Clapper, 638 F.3d at 128 (quoting Gillers Decl. ¶ 11) (emphasis added). Thus, any burden imposed on plaintiffs by the risk of surveillance arose under the pre-FAA regime as well. And since (obviously) wiretap surveillance is authorized by statutes other than the FAA,
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Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)

it is by no means limited to foreigners abroad. So the inhibition that allegedly besets the plaintiffs would (if valid) affect all criminal defense lawyers—not to mention psychiatrists and the clergy—all the time.
The panel’s redressability argument (following plaintiffs’ affidavits) is also premised on the fanciful idea that, for a foreign person of interest abroad in his own country, the only risk of surveillance is surveillance by the United States—as though otherwise persons of interest in Iran, Syria, Bosnia, Sudan and Cuba (not to mention Russia or Spain) can chatter away confident *203 that the security services of those countries (and others) are not listening—as though those places have a Fourth Amendment to be begin with, and adhere to it more scrupulously than does the United States. The plaintiffs’ affidavits thus betray their buried assumption that the United States is the only threat to liberty that anyone anywhere needs to worry about.
* * *
Finally, the FAA does not even bear upon the plaintiffs’ Fourth Amendment rights because the FAA concerns only the surveillance of persons abroad who are not United States citizens or residents. The FAA implements this limitation through minimization (procedures for limiting the information received and retained by electronic surveillance) and targeting (procedures for limiting the persons and facilities to be surveilled), and the FISA Court is given power to review those procedures for compliance with the Fourth Amendment.2 Since the FAA bars the targeting of individuals in or of the United States, there can be nothing for the FISA Court to consider under the Fourth Amendment but those procedures.

2

Under the FAA, a surveillance order shall issue:

If the Court finds that a certification submitted in

accordance with subsection (g) contains all the

required elements and that the targeting and

minimization procedures adopted in accordance

with subsections (d) [targeting] and (e)

[minimization] are consistent with the

requirements of those subsections and with the

fourth amendment to the Constitution of the

United States.

50 U.S.C. § 1881a(i)(3)(A) (emphasis added).

And as to persons abroad, with whom the plaintiffs claim to be in communication: “the Fourth Amendment has no application” to the search of a person of foreign

nationality, outside the United States, with “no voluntary attachment” to this country. United States v. Verdugo–Urquidez, 494 U.S. 259, 274, 275, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990); see also In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157, 171 (2d Cir.2008) (holding “that the Fourth Amendment’s Warrant Clause has no extraterritorial application” to searches of United States citizens abroad).
In short, the FAA does not implicate any Fourth Amendment right of any plaintiff, or of any foreign person with whom any plaintiff may communicate.
* * *
Since these plaintiffs are not subject to the FAA, and since the Fourth Amendment has no application to their supposed clients, sources and communicants—who are foreign persons abroad—and since the only evidence they proffer of personal inconvenience and expense are affidavits that are craftily worded to skirt actual falsehood, what is the interest in bringing this suit?
At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake—for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation. In short, counsel’s and plaintiffs’ only perceptible interest is to carve out for themselves an influence over government policy—an interest that the law of standing forecloses.
For the foregoing reasons, I conclude that the plaintiffs suffered no injury, and certainly none that can be redressed by this Court. In part, that is a function of the frivolous nature of the claim. In that *204 respect, it bears similarity to a pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar. But, as to the standing analysis, there is this difference: The pro se plaintiff is actually suffering, is truly hoping for redress, and is not bringing suit as a pretext to weigh in on government policy.
PETER W. HALL, Circuit Judge, dissenting from the denial of rehearing in banc:
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Amnesty Intern. USA v. Clapper, 667 F.3d 163 (2011)
I respectfully dissent from the denial of rehearing in banc solely because I believe this case “involves a question of exceptional importance” warranting in banc review.

Fed.R.App. P. 35(a)(2).
	  

32

 
 Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)

133 S.Ct. 1138 Supreme Court of the United States
James R. CLAPPER, Jr., Director of National Intelligence, et al., Petitioners v.
AMNESTY INTERNATIONAL USA et al.
No. 11–1025. | Argued Oct. 29, 2012. | Decided Feb. 26, 2013.
Synopsis Background: Attorneys and human rights, labor, legal, and media organizations brought action seeking a declaration that provision of Foreign Intelligence Surveillance Act (FISA) allowing surveillance of individuals who were not “United States persons” and were reasonably believed to be located outside the United States, was unconstitutional, as well as an injunction against surveillance authorized by the provision. The United States District Court for the Southern District of New York, John G. Koeltl, J., 646 F.Supp.2d 633, granted summary judgment in favor of defendants, and plaintiffs appealed. The United States Court of Appeals for the Second Circuit, Gerard E. Lynch, Circuit Judge, reversed, 638 F.3d 118, and denied rehearing en banc, 667 F.3d 163. Defendants petitioned for certiorari.
Holdings: The Supreme Court, Justice Alito, held that:
[1] plaintiffs failed to demonstrate the future injury they purportedly feared was certainly impending;
[2] plaintiffs failed to establish the future injury they purportedly feared was fairly traceable to the FISA provision at issue; and
[3] costs plaintiffs incurred to avoid surveillance were not fairly traceable to the FISA provision at issue.
Reversed.
Justice Breyer, filed a dissenting opinion in which Justice Ginsburg, Justice Sotomayor, and Justice Kagan joined.
*1140 Syllabus*

*

The syllabus constitutes no part of the opinion of the

Court but has been prepared by the Reporter of

Decisions for the convenience of the reader. See United

States v. Detroit Timber & Lumber Co., 200 U.S. 321,

337, 26 S.Ct. 282, 50 L.Ed. 499.

Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. § 1881a, added by the FISA Amendments Act of 2008, permits the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s (FISC) approval. Surveillance under § 1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Respondents—attorneys and human rights, labor, legal, and media organizations—are United States persons who claim that they engage in sensitive international communications with individuals who they believe are likely targets of § 1881a surveillance. On the day that the FISA Amendments Act was enacted, they filed suit, seeking a declaration that § 1881a is facially unconstitutional and a permanent injunction against § 1881a-authorized surveillance. The District Court found that respondents lacked standing, but the Second Circuit reversed, holding that respondents showed (1) an “objectively reasonable likelihood” that their communications will be intercepted at some time in the future, and (2) that they are suffering present injuries resulting from costly and burdensome measures they take to protect the confidentiality of their international communications from possible § 1881a surveillance.
Held : Respondents do not have Article III standing. Pp. 1146 – 1155.
(a) To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. *1141 v. Geertson Seed Farms, ––– U.S. ––––, 130 S.Ct. 2743, 177 L.Ed.2d 461. “[T]hreatened injury must be ‘ “certainly impending” ’ to constitute injury in fact,” and “[a]llegations of possible future injury” are not sufficient. Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135. Pp. 1146 – 1150.
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Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
(b) Respondents assert that they have suffered injury in fact that is fairly traceable to § 1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under § 1881a at some point. This argument fails. Initially, the Second Circuit’s “objectively reasonable likelihood” standard is inconsistent with this Court’s “threatened injury” requirement. Respondents’ standing theory also rests on a speculative chain of possibilities that does not establish that their potential injury is certainly impending or is fairly traceable to § 1881a. First, it is highly speculative whether the Government will imminently target communications to which respondents are parties. Since respondents, as U.S. persons, cannot be targeted under § 1881a, their theory necessarily rests on their assertion that their foreign contacts will be targeted. Yet they have no actual knowledge of the Government’s § 1881a targeting practices. Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, they can only speculate as to whether the Government will seek to use § 1881a-authorized surveillance instead of one of the Government’s numerous other surveillance methods, which are not challenged here. Third, even if respondents could show that the Government will seek FISC authorization to target respondents’ foreign contacts under § 1881a, they can only speculate as to whether the FISC will authorize the surveillance. This Court is reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment. See, e.g., Whitmore, supra, at 159–160, 110 S.Ct. 1717. Fourth, even if the Government were to obtain the FISC’s approval to target respondents’ foreign contacts under § 1881a, it is unclear whether the Government would succeed in acquiring those contacts’ communications. And fifth, even if the Government were to target respondents’ foreign contacts, respondents can only speculate as to whether their own communications with those contacts would be incidentally acquired. Pp. 1147 – 1150.
(c) Respondents’ alternative argument is also unpersuasive. They claim that they suffer ongoing injuries that are fairly traceable to § 1881a because the risk of § 1881a surveillance requires them to take costly and burdensome measures to protect the confidentiality of their communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. Because they do not face a threat of certainly impending interception under § 1881a, their costs are

simply the product of their fear of surveillance, which is insufficient to create standing. See Laird v. Tatum, 408 U.S. 1, 10–15, 92 S.Ct. 2318, 33 L.Ed.2d 154. Accordingly, any ongoing injuries that respondents are suffering are not fairly traceable to § 1881a. Pp. 1150 – 1153.
(d) Respondents’ remaining arguments are likewise unavailing. Contrary to their claim, their alleged injuries are not the same kinds of injuries that supported standing in cases such as Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610, Meese v. Keene, 481 U.S. 465, 107 S.Ct. 1862, 95 L.Ed.2d 415, and Monsanto, supra. And their suggestion that they should be held *1142 to have standing because otherwise the constitutionality of § 1881a will never be adjudicated is both legally and factually incorrect. First, “ ‘[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 489, 102 S.Ct. 752, 70 L.Ed.2d 700. Second, the holding in this case by no means insulates § 1881a from judicial review. Pp. 1153 – 1155.
638 F.3d 118, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
Attorneys and Law Firms
Donald B. Verrilli, Jr., Solicitor General, for Petitioners.
Jameel Jaffer, New York, NY, for Respondents.
Charles S. Sims, Matthew J. Morris, Proskauer Rose LLP, New York, NY, Jameel Jaffer, Counsel of Record, Steven R. Shapiro, Alexander A. Abdo, Mitra Ebadolahi, American Civil Liberties Union Foundation, New York, NY, Arthur N. Eisenburg, Christopher T. Dunn, New York Civil Liberties Union Foundation, New York, NY, for Respondents.
Robert S. Litt, General Counsel, Tricia S. Wellman, Deputy General Counsel, Bradley A. Brooker, Associate General Counsel, Office of the Director of National Intelligence, Washington, DC, Rajesh De, General
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Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
Counsel, Ariane E. Cerlenko, Associate General Counsel, National Security Agency, Ft. Meade, MD, Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Anthony A. Yang, Assistant to the Solicitor General, Douglas N. Letter, Thomas M. Bondy, Daniel J. Lenerz, Henry C. Whitaker, Attorneys, Department of Justice, Washington, DC, for Petitioners.
Opinion
Justice ALITO delivered the opinion of the Court.

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1881a (2006 ed., Supp. V), allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons”1 and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under § 1881a. Respondents seek a declaration that § 1881a is unconstitutional, as well as an injunction against § 1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.

1

The term “United States person” includes citizens of

the United States, aliens admitted for permanent

residence, and certain associations and corporations. 50

U.S.C. § 1801(i); see § 1881(a).

*1143 Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under § 1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” E.g., Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). 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. We therefore hold that respondents lack Article III standing.
I
A
In 1978, after years of debate, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes. See 92 Stat. 1783, 50 U.S.C. § 1801 et seq.; 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §§ 3.1, 3.7 (2d ed. 2012) (hereinafter Kris & Wilson). In enacting FISA, Congress legislated against the backdrop of our decision in United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) ( Keith ), in which we explained that the standards and procedures that law enforcement officials must follow when conducting “surveillance of ‘ordinary crime’ ” might not be required in the context of surveillance conducted for domestic national-security purposes. Id., at 322–323, 92 S.Ct. 2125. Although the Keith opinion expressly disclaimed any ruling “on the scope of the President’s surveillance power with respect to the activities of foreign powers,” id., at 308, 92 S.Ct. 2125, it implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible, see id., at 322–323, 92 S.Ct. 2125.
In constructing such a framework for foreign intelligence surveillance, Congress created two specialized courts. In FISA, Congress authorized judges of the Foreign Intelligence Surveillance Court (FISC) to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” and that each of the specific “facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” § 105(a)(3), 92 Stat. 1790;
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Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
see § 105(b)(1)(A), (b)(1)(B), ibid.; 1 Kris & Wilson § 7:2, at 194–195; id., § 16:2, at 528–529. Additionally, Congress vested the Foreign Intelligence Surveillance Court of Review with jurisdiction to review any denials by the FISC of applications for electronic surveillance. § 103(b), 92 Stat. 1788; 1 Kris & Wilson § 5:7, at 151–153.
In the wake of the September 11th attacks, President George W. Bush authorized the National Security Agency (NSA) to conduct warrantless wiretapping of telephone and e-mail communications where one party to the communication was located outside the United States and a participant in “the call was reasonably believed to be a member or agent of al Qaeda or an *1144 affiliated terrorist organization,” App. to Pet. for Cert. 403a. See id., at 263a–265a, 268a, 273a–279a, 292a–293a; American Civil Liberties Union v. NSA, 493 F.3d 644, 648 (C.A.6 2007) (ACLU ) (opinion of Batchelder, J.). In January 2007, the FISC issued orders authorizing the Government to target international communications into or out of the United States where there was probable cause to believe that one participant to the communication was a member or agent of al Qaeda or an associated terrorist organization. App. to Pet. for Cert. 312a, 398a, 405a. These FISC orders subjected any electronic surveillance that was then occurring under the NSA’s program to the approval of the FISC. Id., at 405a; see id., at 312a, 404a. After a FISC Judge subsequently narrowed the FISC’s authorization of such surveillance, however, the Executive asked Congress to amend FISA so that it would provide the intelligence community with additional authority to meet the challenges of modern technology and international terrorism. Id., at 315a–318a, 331a–333a, 398a; see id., at 262a, 277a–279a, 287a.
When Congress enacted the FISA Amendments Act of 2008 (FISA Amendments Act), 122 Stat. 2436, it left much of FISA intact, but it “established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.” 1 Kris & Wilson § 9:11, at 349–350. As relevant here, § 702 of FISA, 50 U.S.C. § 1881a (2006 ed., Supp. V), which was enacted as part of the FISA Amendments Act, supplements pre-existing FISA authority by creating a new framework under which the Government may seek the FISC’s authorization of certain foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad. Unlike traditional FISA surveillance, § 1881a does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power. Compare § 1805(a)(2)(A), (a)(2)(B), with § 1881a(d)(1), (i)(3)(A);

638 F.3d 118, 126 (C.A.2 2011); 1 Kris & Wilson § 16:16, at 584. And, unlike traditional FISA, § 1881a does not require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur. Compare § 1805(a)(2)(B), (c)(1) (2006 ed. and Supp. V), with § 1881a(d)(1), (g)(4), (i)(3)(A); 638 F.3d, at 125–126; 1 Kris & Wilson § 16:16, at 585.2

2

Congress recently reauthorized the FISA Amendments

Act for another five years. See 126 Stat. 1631.

The present case involves a constitutional challenge to § 1881a. Surveillance under § 1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Section 1881a provides that, upon the issuance of an order from the Foreign Intelligence Surveillance Court, “the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year ..., the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” § 1881a(a). Surveillance under § 1881a may not be intentionally targeted at any person known to be in the United States or any U.S. person reasonably believed to be located abroad. § 1881a(b)(1)–(3); see also § 1801(i). Additionally, acquisitions under § 1881a must comport with the Fourth Amendment. § 1881a(b)(5). Moreover, surveillance under § 1881a is subject to congressional oversight and several types of Executive *1145 Branch review. See § 1881a(f)(2), (l ); Amnesty Int’l USA v. McConnell, 646 F.Supp.2d 633, 640–641 (S.D.N.Y.2009).
Section 1881a mandates that the Government obtain the Foreign Intelligence Surveillance Court’s approval of “targeting” procedures, “minimization” procedures, and a governmental certification regarding proposed surveillance. § 1881a(a), (c)(1), (i)(2), (i)(3). Among other things, the Government’s certification must attest that (1) procedures are in place “that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the [FISC] that are reasonably designed” to ensure that an acquisition is “limited to targeting persons reasonably believed to be located outside” the United States; (2) minimization procedures adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U.S. persons, as appropriate; (3) guidelines have been adopted to ensure compliance with targeting limits and the Fourth Amendment; and (4) the procedures
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and guidelines referred to above comport with the Fourth Amendment. § 1881a(g)(2); see § 1801(h).
The Foreign Intelligence Surveillance Court’s role includes determining whether the Government’s certification contains the required elements. Additionally, the Court assesses whether the targeting procedures are “reasonably designed” (1) to “ensure that an acquisition ... is limited to targeting persons reasonably believed to be located outside the United States” and (2) to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known ... to be located in the United States.” § 1881a(i)(2)(B). The Court analyzes whether the minimization procedures “meet the definition of minimization procedures under section 1801(h) ..., as appropriate.” § 1881a(i)(2)(C). The Court also assesses whether the targeting and minimization procedures are consistent with the statute and the Fourth Amendment. See § 1881a(i)(3)(A).3

3

The dissent attempts to downplay the safeguards

established by § 1881a. See post, at 1156 – 1157

(opinion of BREYER, J.). Notably, the dissent does not

directly acknowledge that § 1881a surveillance must

comport with the Fourth Amendment, see §

1881a(b)(5), and that the Foreign Intelligence

Surveillance Court must assess whether targeting and

minimization procedures are consistent with the Fourth

Amendment, see § 1881a(i)(3)(A).

B
Respondents are attorneys and human rights, labor, legal, and media organizations whose work allegedly requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, sources, and other individuals located abroad. Respondents believe that some of the people with whom they exchange foreign intelligence information are likely targets of surveillance under § 1881a. Specifically, respondents claim that they communicate by telephone and e-mail with people the Government “believes or believed to be associated with terrorist organizations,” “people located in geographic areas that are a special focus” of the Government’s counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government. App. to Pet. for Cert. 399a.

Respondents claim that § 1881a compromises their ability to locate witnesses, cultivate sources, obtain information, and communicate confidential information to their clients. Respondents also assert that they “have ceased engaging” in certain telephone and e-mail conversations. Id., at 400a. According to respondents, the *1146 threat of surveillance will compel them to travel abroad in order to have in-person conversations. In addition, respondents declare that they have undertaken “costly and burdensome measures” to protect the confidentiality of sensitive communications. Ibid.
C
On the day when the FISA Amendments Act was enacted, respondents filed this action seeking (1) a declaration that § 1881a, on its face, violates the Fourth Amendment, the First Amendment, Article III, and separation-of-powers principles and (2) a permanent injunction against the use of § 1881a. Respondents assert what they characterize as two separate theories of Article III standing. First, they claim that there is an objectively reasonable likelihood that their communications will be acquired under § 1881a at some point in the future, thus causing them injury. Second, respondents maintain that the risk of surveillance under § 1881a is so substantial that they have been forced to take costly and burdensome measures to protect the confidentiality of their international communications; in their view, the costs they have incurred constitute present injury that is fairly traceable to § 1881a.
After both parties moved for summary judgment, the District Court held that respondents do not have standing. McConnell, 646 F.Supp.2d, at 635. On appeal, however, a panel of the Second Circuit reversed. The panel agreed with respondents’ argument that they have standing due to the objectively reasonable likelihood that their communications will be intercepted at some time in the future. 638 F.3d, at 133, 134, 139. In addition, the panel held that respondents have established that they are suffering “present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harmful government conduct.” Id., at 138. The Second Circuit denied rehearing en banc by an equally divided vote. 667 F.3d 163 (2011).
Because of the importance of the issue and the novel view of standing adopted by the Court of Appeals, we granted certiorari, 566 U.S. ––––, 132 S.Ct. 2431, 182 L.Ed.2d 1061 (2012), and we now reverse.
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Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
II
[1] [2] Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases” and “Controversies.” As we have explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation marks omitted); Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (internal quotation marks omitted); see, e.g., Summers v. Earth Island Institute, 555 U.S. 488, 492–493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). “One element of the case-or-controversy requirement” is that plaintiffs “must establish that they have standing to sue.” Raines, supra, at 818, 117 S.Ct. 2312; see also Summers, supra, at 492–493, 129 S.Ct. 1142; DaimlerChrysler Corp., supra, at 342, 126 S.Ct. 1854; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
[3] [4] The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches. Summers, supra, at 492–493, 129 S.Ct. 1142; DaimlerChrysler Corp., supra, at 341–342, 353, 126 S.Ct. 1854; Raines, supra, at 818–820, 117 S.Ct. 2312; Valley Forge Christian *1147 College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471–474, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221–222, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). In keeping with the purpose of this doctrine, “[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines, supra, at 819–820, 117 S.Ct. 2312; see Valley Forge Christian College, supra, at 473–474, 102 S.Ct. 752; Schlesinger, supra, at 221–222, 94 S.Ct. 2925. “Relaxation of standing requirements is directly related to the expansion of judicial power,” United States v. Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (Powell, J., concurring); see also Summers, supra, at 492–493, 129 S.Ct. 1142; Schlesinger, supra, at 222, 94 S.Ct. 2925, and we have often found a lack of standing in cases in which the

Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs, see, e.g., Richardson, supra, at 167–170, 94 S.Ct. 2940 (plaintiff lacked standing to challenge the constitutionality of a statute permitting the Central Intelligence Agency to account for its expenditures solely on the certificate of the CIA Director); Schlesinger, supra, at 209–211, 94 S.Ct. 2925 (plaintiffs lacked standing to challenge the Armed Forces Reserve membership of Members of Congress); Laird v. Tatum, 408 U.S. 1, 11–16, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) (plaintiffs lacked standing to challenge an Army intelligence-gathering program).
[5] [6] To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. ––––, ––––, 130 S.Ct. 2743, 2752, 177 L.Ed.2d 461 (2010); see also Summers, supra, at 493, 129 S.Ct. 1142; Defenders of Wildlife, 504 U.S., at 560–561, 112 S.Ct. 2130. “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 Article III purposes—that the injury is certainly impending.” Id., at 565, n. 2, 112 S.Ct. 2130 (internal quotation marks omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient. Whitmore, 495 U.S., at 158, 110 S.Ct. 1717 (emphasis added; internal quotation marks omitted); see also Defenders of Wildlife, supra, at 565, n. 2, 567, n. 3, 112 S.Ct. 2130; see DaimlerChrysler Corp., supra, at 345, 126 S.Ct. 1854; Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979).
III
A
Respondents assert that they can establish injury in fact that is fairly traceable to § 1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be
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intercepted under § 1881a at some point in the future. This argument fails. As an initial matter, the Second Circuit’s “objectively reasonable likelihood” standard is inconsistent with our requirement that “threatened injury must be certainly impending to constitute injury in fact.” Whitmore, supra, at 158, 110 S.Ct. 1717 (internal quotation marks omitted); see *1148 also DaimlerChrysler Corp., supra, at 345, 126 S.Ct. 1854; Laidlaw, supra, at 190, 120 S.Ct. 693; Defenders of Wildlife, supra, at 565, n. 2, 112 S.Ct. 2130; Babbitt, supra, at 298, 99 S.Ct. 2301. Furthermore, respondents’ argument rests on their highly speculative fear that: (1) the Government will decide to target the communications of non-U.S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under § 1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government’s proposed surveillance procedures satisfy § 1881a’s many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents’ contacts; and (5) respondents will be parties to the particular communications that the Government intercepts. As discussed below, respondents’ theory of standing, which relies on a highly attenuated chain of possibilities, does not satisfy the requirement that threatened injury must be certainly impending. See Summers, supra, at 496, 129 S.Ct. 1142 (rejecting a standing theory premised on a speculative chain of possibilities); Whitmore, supra, at 157–160, 110 S.Ct. 1717 (same). Moreover, even if respondents could demonstrate injury in fact, the second link in the above-described chain of contingencies—which amounts to mere speculation about whether surveillance would be under § 1881a or some other authority—shows that respondents cannot satisfy the requirement that any injury in fact must be fairly traceable to § 1881a.
[7] First, it is speculative whether the Government will imminently target communications to which respondents are parties. Section 1881a expressly provides that respondents, who are U.S. persons, cannot be targeted for surveillance under § 1881a. See § 1881a(b)(1)–(3); 667 F.3d, at 173 (Raggi, J., dissenting from denial of rehearing en banc). Accordingly, it is no surprise that respondents fail to offer any evidence that their communications have been monitored under § 1881a, a failure that substantially undermines their standing theory. See ACLU, 493 F.3d, at 655–656, 673–674 (opinion of Batchelder, J.) (concluding that plaintiffs who lacked

evidence that their communications had been intercepted did not have standing to challenge alleged NSA surveillance). Indeed, respondents do not even allege that the Government has sought the FISC’s approval for surveillance of their communications. Accordingly, respondents’ theory necessarily rests on their assertion that the Government will target other individuals—namely, their foreign contacts.
[8] Yet respondents have no actual knowledge of the Government’s § 1881a targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under § 1881a. See 667 F.3d, at 185–187 (opinion of Raggi, J.). For example, journalist Christopher Hedges states: “I have no choice but to assume that any of my international communications may be subject to government surveillance, and I have to make decisions ... in light of that assumption.” App. to Pet. for Cert. 366a (emphasis added and deleted). Similarly, attorney Scott McKay asserts that, “[b]ecause of the [FISA Amendments Act], we now have to assume that every one of our international communications may be monitored by the government.” Id., at 375a (emphasis added); see also id., at 337a, 343a–344a, 350a, 356a. “The party invoking federal jurisdiction bears the burden of establishing” standing—and, at the *1149 summary judgment stage, such a party “can no longer rest on ... ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’ ” Defenders of Wildlife, 504 U.S., at 561, 112 S.Ct. 2130. Respondents, however, have set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted. Moreover, because § 1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural. See United Presbyterian Church in U.S.A. v. Reagan, 738 F.2d 1375, 1380 (C.A.D.C.1984) (SCALIA, J.); 667 F.3d, at 187 (opinion of Raggi, J.). Simply put, respondents can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target.4

4

It was suggested at oral argument that the Government

could help resolve the standing inquiry by disclosing to

a court, perhaps through an in camera proceeding, (1)

whether it is intercepting respondents’ communications

and (2) what targeting or minimization procedures it is

using. See Tr. of Oral Arg. 13–14, 44, 56. This

suggestion is puzzling. As an initial matter, it is

respondents’ burden to prove their standing by pointing

to specific facts, Lujan v. Defenders of Wildlife, 504

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Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U.S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.
[9] Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, respondents can only speculate as to whether the Government will seek to use § 1881a-authorized surveillance (rather than other methods) to do so. The Government has numerous other methods of conducting surveillance, none of which is challenged here. Even after the enactment of the FISA Amendments Act, for example, the Government may still conduct electronic surveillance of persons abroad under the older provisions of FISA so long as it satisfies the applicable requirements, including a demonstration of probable cause to believe that the person is a foreign power or agent of a foreign power. See § 1805. The Government may also obtain information from the intelligence services of foreign nations. Brief for Petitioners 33. And, although we do not reach the question, the Government contends that it can conduct FISA-exempt human and technical surveillance programs that are governed by Executive Order 12333. See Exec. Order No. 12333, §§ 1.4, 2.1–2.5, 3 CFR 202, 210–212 (1981), reprinted as amended, note following 50 U.S.C. § 401, pp. 543, 547–548. Even if respondents could demonstrate that their foreign contacts will imminently be targeted—indeed, even if they could show that interception of their own communications will imminently occur—they would still need to show that their injury is fairly traceable to § 1881a. But, because respondents can only speculate as to whether any (asserted) interception would be under § 1881a or some other authority, they cannot satisfy the “fairly traceable” requirement.
Third, even if respondents could show that the Government will seek the Foreign Intelligence Surveillance Court’s authorization to acquire the communications of *1150 respondents’ foreign contacts under § 1881a, respondents can only speculate as to

whether that court will authorize such surveillance. In the past, we have been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment. In Whitmore, for example, the plaintiff’s theory of standing hinged largely on the probability that he would obtain federal habeas relief and be convicted upon retrial. In holding that the plaintiff lacked standing, we explained that “[i]t is just not possible for a litigant to prove in advance that the judicial system will lead to any particular result in his case.” 495 U.S., at 159–160, 110 S.Ct. 1717; see Defenders of Wildlife, 504 U.S., at 562, 112 S.Ct. 2130.
We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors. Section 1881a mandates that the Government must obtain the Foreign Intelligence Surveillance Court’s approval of targeting procedures, minimization procedures, and a governmental certification regarding proposed surveillance. § 1881a(a), (c)(1), (i)(2), (i)(3). The Court must, for example, determine whether the Government’s procedures are “reasonably designed ... to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.” § 1801(h); see § 1881a(i)(2), (i)(3)(A). And, critically, the Court must also assess whether the Government’s targeting and minimization procedures comport with the Fourth Amendment. § 1881a(i)(3)(A).
Fourth, even if the Government were to obtain the Foreign Intelligence Surveillance Court’s approval to target respondents’ foreign contacts under § 1881a, it is unclear whether the Government would succeed in acquiring the communications of respondents’ foreign contacts. And fifth, even if the Government were to conduct surveillance of respondents’ foreign contacts, respondents can only speculate as to whether their own communications with their foreign contacts would be incidentally acquired.
[10] In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to § 1881a.5

5

Our cases do not uniformly require plaintiffs to

demonstrate that it is literally certain that the harms

they identify will come about. In some instances, we

have found standing based on a “substantial risk” that

the harm will occur, which may prompt plaintiffs to

8

Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
reasonably incur costs to mitigate or avoid that harm. Monsanto Co. v. Geertson Seed Farms, 561 U.S. ––––, ––––, 130 S.Ct. 2743, 2754–2755, 177 L.Ed.2d 461 (2010). See also Pennell v. City of San Jose, 485 U.S. 1, 8, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988); Blum v. Yaretsky, 457 U.S. 991, 1000–1001, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). But to the extent that the “substantial risk” standard is relevant and is distinct from the “clearly impending” requirement, respondents fall short of even that standard, in light of the attenuated chain of inferences necessary to find harm here. See supra, at 1148 – 1150. In addition, plaintiffs bear the burden of pleading and proving concrete facts showing that the defendant’s actual action has caused the substantial risk of harm. Plaintiffs cannot rely on speculation about “ ‘the unfettered choices made by independent actors not before the court.’ ” Defenders of Wildlife, 504 U.S., at 562, 112 S.Ct. 2130.
B
[11] Respondents’ alternative argument—namely, that they can establish standing based on the measures that they have undertaken to avoid § 1881a-authorized surveillance—fares no better. Respondents *1151 assert that they are suffering ongoing injuries that are fairly traceable to § 1881a because the risk of surveillance under § 1881a requires them to take costly and burdensome measures to protect the confidentiality of their communications. Respondents claim, for instance, that the threat of surveillance sometimes compels them to avoid certain e-mail and phone conversations, to “tal[k] in generalities rather than specifics,” or to travel so that they can have in-person conversations. Tr. of Oral Arg. 38; App. to Pet. for Cert. 338a, 345a, 367a, 400a.6 The Second Circuit panel concluded that, because respondents are already suffering such ongoing injuries, the likelihood of interception under § 1881a is relevant only to the question whether respondents’ ongoing injuries are “fairly traceable” to § 1881a. See 638 F.3d, at 133–134; 667 F.3d, at 180 (opinion of Raggi, J.). Analyzing the “fairly traceable” element of standing under a relaxed reasonableness standard, see 638 F.3d, at 133–134, the Second Circuit then held that “plaintiffs have established that they suffered present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harmful government conduct,” id., at 138.

6

For all the focus on respondents’ supposed need to

travel abroad in light of potential § 1881a surveillance,

respondents cite only one specific instance of travel: an

attorney’s trip to New York City to meet with other

lawyers. See App. to Pet. for Cert. 352a. This domestic

travel had but a tenuous connection to § 1881a, because

§ 1881a-authorized acquisitions “may not intentionally

target any person known at the time of acquisition to be

located in the United States.” § 1881a(b)(1); see also

667 F.3d 163, 202 (C.A.2 2011) (Jacobs, C.J.,

dissenting from denial of rehearing en banc); id., at 185

(opinion of Raggi, J. (same)).

[12] The Second Circuit’s analysis improperly allowed respondents to establish standing by asserting that they suffer present costs and burdens that are based on a fear of surveillance, so long as that fear is not “fanciful, paranoid, or otherwise unreasonable.” See id., at 134. This improperly waters down the fundamental requirements of Article III. Respondents’ contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing—because the harm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending. See Pennsylvania v. New Jersey, 426 U.S. 660, 664, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976) (per curiam ); National Family Planning & Reproductive Health Assn., Inc., 468 F.3d 826, 831 (C.A.D.C.2006). Any ongoing injuries that respondents are suffering are not fairly traceable to § 1881a.
If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. As Judge Raggi accurately noted, under the Second Circuit panel’s reasoning, respondents could, “for the price of a plane ticket, ... transform their standing burden from one requiring a showing of actual or imminent ... interception to one requiring a showing that their subjective fear of such interception is not fanciful, irrational, or clearly unreasonable.” 667 F.3d, at 180 (internal quotation marks omitted). Thus, allowing respondents to bring this action based on costs they incurred in response to a speculative threat would be tantamount to accepting a repackaged version of respondents’ first failed theory of standing. See ACLU, 493 F.3d, at 656–657 (opinion of Batchelder, J.).
*1152 Another reason that respondents’ present injuries are not fairly traceable to § 1881a is that even before §
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Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
1881a was enacted, they had a similar incentive to engage in many of the countermeasures that they are now taking. See id., at 668–670. For instance, respondent Scott McKay’s declaration describes—and the dissent heavily relies on—Mr. McKay’s “knowledge” that thousands of communications involving one of his clients were monitored in the past. App. to Pet. for Cert. 370a; post, at 1156 – 1157, 1158 – 1159. But this surveillance was conducted pursuant to FISA authority that predated § 1881a. See Brief for Petitioners 32, n. 11; Al–Kidd v. Gonzales, No. 05–cv–93, 2008 WL 5123009 (D.Idaho, Dec. 4, 2008). Thus, because the Government was allegedly conducting surveillance of Mr. McKay’s client before Congress enacted § 1881a, it is difficult to see how the safeguards that Mr. McKay now claims to have implemented can be traced to § 1881a.
Because respondents do not face a threat of certainly impending interception under § 1881a, the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance,7 and our decision in Laird makes it clear that such a fear is insufficient to create standing. See 408 U.S., at 10–15, 92 S.Ct. 2318. The plaintiffs in Laird argued that their exercise of First Amendment rights was being “chilled by the mere existence, without more, of [the Army’s] investigative and data-gathering activity.” Id., at 10, 92 S.Ct. 2318. While acknowledging that prior cases had held that constitutional violations may arise from the chilling effect of “regulations that fall short of a direct prohibition against the exercise of First Amendment rights,” the Court declared that none of those cases involved a “chilling effect aris[ing] merely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual.” Id., at 11, 92 S.Ct. 2318. Because “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm,” id., at 13–14, 92 S.Ct. 2318, the plaintiffs in Laird—and respondents here—lack standing. See ibid.; ACLU, supra, at 661–662 (opinion of Batchelder, J.) (holding that plaintiffs lacked standing because they “allege[d] only a subjective apprehension” of alleged NSA surveillance and “a personal (self-imposed) unwillingness to communicate”); United Presbyterian Church, 738 F.2d, at 1378 (holding that plaintiffs lacked standing to challenge the legality of an Executive Order relating to surveillance because “the ‘chilling effect’ which is produced by their fear of being subjected to illegal surveillance and which

deters them from conducting constitutionally protected activities, is foreclosed as a basis for standing” by Laird ).

7

Although respondents’ alternative theory of standing

rests primarily on choices that they have made based on

their subjective fear of surveillance, respondents also

assert that third parties might be disinclined to speak

with them due to a fear of surveillance. See App. to Pet.

for Cert. 372a–373a, 352a–353a. To the extent that

such assertions are based on anything other than

conjecture, see Defenders of Wildlife, 504 U.S., at 560,

112 S.Ct. 2130, they do not establish injury that is

fairly traceable to § 1881a, because they are based on

third parties’ subjective fear of surveillance, see Laird,

408 U.S., at 10–14, 92 S.Ct. 2318.

For the reasons discussed above, respondents’ self-inflicted injuries are not fairly traceable to the Government’s purported activities under § 1881a, and their *1153 subjective fear of surveillance does not give rise to standing.

IV
A
Respondents incorrectly maintain that “[t]he kinds of injuries incurred here—injuries incurred because of [respondents’] reasonable efforts to avoid greater injuries that are otherwise likely to flow from the conduct they challenge—are the same kinds of injuries that this Court held to support standing in cases such as” Laidlaw, Meese v. Keene, 481 U.S. 465, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987), and Monsanto. Brief for Respondents 24. As an initial matter, none of these cases holds or even suggests that plaintiffs can establish standing simply by claiming that they experienced a “chilling effect” that resulted from a governmental policy that does not regulate, constrain, or compel any action on their part. Moreover, each of these cases was very different from the present case.
In Laidlaw, plaintiffs’ standing was based on “the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms.” 528 U.S., at 184, 120 S.Ct. 693. Because the unlawful discharges of pollutants were
10

Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
“concededly ongoing,” the only issue was whether “nearby residents”—who were members of the organizational plaintiffs—acted reasonably in refraining from using the polluted area. Id., at 183–184, 120 S.Ct. 693. Laidlaw is therefore quite unlike the present case, in which it is not “concede[d]” that respondents would be subject to unlawful surveillance but for their decision to take preventive measures. See ACLU, 493 F.3d, at 686 (opinion of Batchelder, J.) (distinguishing Laidlaw on this ground); id., at 689–690 (Gibbons, J., concurring) (same); 667 F.3d, at 182–183 (opinion of Raggi, J.) (same). Laidlaw would resemble this case only if (1) it were undisputed that the Government was using § 1881a-authorized surveillance to acquire respondents’ communications and (2) the sole dispute concerned the reasonableness of respondents’ preventive measures.
In Keene, the plaintiff challenged the constitutionality of the Government’s decision to label three films as “political propaganda.” 481 U.S., at 467, 107 S.Ct. 1862. The Court held that the plaintiff, who was an attorney and a state legislator, had standing because he demonstrated, through “detailed affidavits,” that he “could not exhibit the films without incurring a risk of injury to his reputation and of an impairment of his political career.” Id., at 467, 473–475, 107 S.Ct. 1862. Unlike the present case, Keene involved “more than a ‘subjective chill’ ” based on speculation about potential governmental action; the plaintiff in that case was unquestionably regulated by the relevant statute, and the films that he wished to exhibit had already been labeled as “political propaganda.” See ibid.; ACLU, 493 F.3d, at 663–664 (opinion of Batchelder, J.); id., at 691 (Gibbons, J., concurring).
Monsanto, on which respondents also rely, is likewise inapposite. In Monsanto, conventional alfalfa farmers had standing to seek injunctive relief because the agency’s decision to deregulate a variety of genetically engineered alfalfa gave rise to a “significant risk of gene flow to non-genetically-engineered varieties of alfalfa.” 561 U.S., at ––––, 130 S.Ct., at 2755. The standing analysis in that case hinged on evidence that genetically engineered alfalfa “ ‘seed fields [we]re currently being planted in all the major alfalfa seed production areas’ ”; the bees that pollinate alfalfa “ ‘have a range of at least two to ten *1154 miles’ ”; and the alfalfa seed farms were concentrated in an area well within the bees’ pollination range. Id., at –––– – ––––, and n. 3, 130 S.Ct., at 2754–2755, and n. 3. Unlike the conventional alfalfa farmers in Monsanto, however, respondents in the present case present no concrete evidence to substantiate their fears, but instead rest on mere conjecture about possible

governmental actions.
B
[13] Respondents also suggest that they should be held to have standing because otherwise the constitutionality of § 1881a could not be challenged. It would be wrong, they maintain, to “insulate the government’s surveillance activities from meaningful judicial review.” Brief for Respondents 60. Respondents’ suggestion is both legally and factually incorrect. First, “ ‘[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’ ” Valley Forge Christian College, 454 U.S., at 489, 102 S.Ct. 752; Schlesinger, 418 U.S., at 227, 94 S.Ct. 2925; see also Richardson, 418 U.S., at 179, 94 S.Ct. 2940; Raines, 521 U.S., at 835, 117 S.Ct. 2312 (Souter, J., joined by GINSBURG, J., concurring in judgment).
Second, our holding today by no means insulates § 1881a from judicial review. As described above, Congress created a comprehensive scheme in which the Foreign Intelligence Surveillance Court evaluates the Government’s certifications, targeting procedures, and minimization procedures—including assessing whether the targeting and minimization procedures comport with the Fourth Amendment. § 1881a(a), (c)(1), (i)(2), (i)(3). Any dissatisfaction that respondents may have about the Foreign Intelligence Surveillance Court’s rulings—or the congressional delineation of that court’s role—is irrelevant to our standing analysis.
Additionally, if the Government intends to use or disclose information obtained or derived from a § 1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition. §§ 1806(c), 1806(e), 1881e(a) (2006 ed. and Supp. V).8 Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using § 1881a-authorized surveillance, the Government would be required to make a disclosure. Although the foreign client might not have a viable Fourth Amendment claim, see, e.g., United States v. Verdugo–Urquidez, 494 U.S. 259, 261, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), it is possible that the monitoring of the target’s conversations with his or her attorney would provide grounds for a claim of standing on the part of the attorney. Such an attorney would certainly have a stronger evidentiary basis for establishing standing than do respondents in the
11

Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)

present case. In such a situation, unlike in the present case, it would at least be clear that the Government had acquired the foreign client’s communications using § 1881a-authorized surveillance.

8

The possibility of judicial review in this context is not

farfetched. In United States v. Damrah, 412 F.3d 618

(C.A.6 2005), for example, the Government made a

pretrial disclosure that it intended to use FISA evidence

in a prosecution; the defendant (unsuccessfully) moved

to suppress the FISA evidence, even though he had not

been the target of the surveillance; and the Sixth

Circuit ultimately held that FISA’s procedures are

consistent with the Fourth Amendment. See id., at 622,

623, 625.

Finally, any electronic communications service provider that the Government directs to assist in § 1881a surveillance may challenge the lawfulness of that directive before the FISC. § 1881a(h)(4), (6). Indeed, *1155 at the behest of a service provider, the Foreign Intelligence Surveillance Court of Review previously analyzed the constitutionality of electronic surveillance directives issued pursuant to a now-expired set of FISA amendments. See In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1006–1016 (2008) (holding that the provider had standing and that the directives were constitutional).
* * *
We hold that respondents lack Article III standing because they cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm. We therefore reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.

Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.
The plaintiffs’ standing depends upon the likelihood that the Government, acting under the authority of 50 U.S.C. § 1881a (2006 ed., Supp. V), will harm them by intercepting at least some of their private, foreign, telephone, or e-mail conversations. In my view, this harm

is not “speculative.” Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen. This Court has often found the occurrence of similar future events sufficiently certain to support standing. I dissent from the Court’s contrary conclusion.
I
Article III specifies that the “judicial Power” of the United States extends only to actual “Cases” and “Controversies.” § 2. It thereby helps to ensure that the legal questions presented to the federal courts will not take the form of abstract intellectual problems resolved in the “rarified atmosphere of a debating society” but instead those questions will be presented “in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (purpose of Article III); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (similar); Babbitt v. Farm Workers, 442 U.S. 289, 297, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (similar).
The Court has recognized that the precise boundaries of the “case or controversy” requirement are matters of “degree ... not discernible by any precise test.” Ibid. At the same time, the Court has developed a subsidiary set of legal rules that help to determine when the Constitution’s requirement is met. See Lujan, 504 U.S., at 560–561, 112 S.Ct. 2130; id., at 583, 112 S.Ct. 2130 (Stevens, J., concurring in judgment). Thus, a plaintiff must have “standing” to bring a legal claim. And a plaintiff has that standing, the Court has said, only if the action or omission that the plaintiff challenges has caused, or will cause, the plaintiff to suffer an injury that is “concrete and particularized,” “actual or imminent,” and “redress[able] by a favorable decision.” Id., at 560–561, 112 S.Ct. 2130 (internal quotation marks omitted).
No one here denies that the Government’s interception of a private telephone or e-mail conversation amounts to an injury that is “concrete and particularized.” Moreover, the plaintiffs, respondents here, seek as relief a judgment declaring unconstitutional (and enjoining enforcement of) a *1156 statutory provision authorizing those interceptions; and, such a judgment would redress the injury by preventing it. Thus, the basic question is
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Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
whether the injury, i.e., the interception, is “actual or imminent.”
II
A
Since the plaintiffs fear interceptions of a kind authorized by § 1881a, it is important to understand just what kind of surveillance that section authorizes. Congress enacted § 1881a in 2008, as an amendment to the pre-existing Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq. Before the amendment, the Act authorized the Government (acting within the United States) to monitor private electronic communications between the United States and a foreign country if (1) the Government’s purpose was, in significant part, to obtain foreign intelligence information (which includes information concerning a “foreign power” or “territory” related to our “national defense” or “security” or the “conduct of ... foreign affairs”), (2) the Government’s surveillance target was “a foreign power or an agent of a foreign power,” and (3) the Government used surveillance procedures designed to “minimize the acquisition and retention, and prohibit the dissemination, of” any private information acquired about Americans. §§ 1801(e), (h), 1804(a).
In addition the Government had to obtain the approval of the Foreign Intelligence Surveillance Court. To do so, it had to submit an application describing (1) each “specific target,” (2) the “nature of the information sought,” and (3) the “type of communications or activities to be subjected to the surveillance.” § 1804(a). It had to certify that, in significant part, it sought to obtain foreign intelligence information. Ibid. It had to demonstrate probable cause to believe that each specific target was “a foreign power or an agent of a foreign power.” §§ 1804(a), 1805(a). It also had to describe instance-specific procedures to be used to minimize intrusions upon Americans’ privacy (compliance with which the court subsequently could assess). §§ 1804(a), 1805(d)(3).
The addition of § 1881a in 2008 changed this prior law in three important ways. First, it eliminated the requirement that the Government describe to the court each specific target and identify each facility at which its surveillance would be directed, thus permitting surveillance on a

programmatic, not necessarily individualized, basis. § 1881a(g). Second, it eliminated the requirement that a target be a “foreign power or an agent of a foreign power.” Ibid. Third, it diminished the court’s authority to insist upon, and eliminated its authority to supervise, instance-specific privacy-intrusion minimization procedures (though the Government still must use court-approved general minimization procedures). § 1881a(e). Thus, using the authority of § 1881a, the Government can obtain court approval for its surveillance of electronic communications between places within the United States and targets in foreign territories by showing the court (1) that “a significant purpose of the acquisition is to obtain foreign intelligence information,” and (2) that it will use general targeting and privacy-intrusion minimization procedures of a kind that the court had previously approved. § 1881a(g).
B
It is similarly important to understand the kinds of communications in which the plaintiffs say they engage and which they believe the Government will intercept. Plaintiff Scott McKay, for example, says in an affidavit (1) that he is a lawyer; (2) that he represented “Mr. Sami Omar Al–Hussayen, *1157 who was acquitted in June 2004 on terrorism charges”; (3) that he continues to represent “Mr. Al–Hussayen, who, in addition to facing criminal charges after September 11, was named as a defendant in several civil cases”; (4) that he represents Khalid Sheik Mohammed, a detainee, “before the Military Commissions at Guantánamo Bay, Cuba”; (5) that in representing these clients he “communicate[s] by telephone and email with people outside the United States, including Mr. Al–Hussayen himself,” “experts, investigators, attorneys, family members ... and others who are located abroad”; and (6) that prior to 2008 “the U.S. government had intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Al–Hussayen.” App. to Pet. for Cert. 369a–371a.
Another plaintiff, Sylvia Royce, says in her affidavit (1) that she is an attorney; (2) that she “represent[s] Mohammedou Ould Salahi, a prisoner who has been held at Guantánamo Bay as an enemy combatant”; (3) that, “[i]n connection with [her] representation of Mr. Salahi, [she] receive[s] calls from time to time from Mr. Salahi’s brother, ... a university student in Germany”; and (4) that she has been told that the Government has threatened Salahi “that his family members would be arrested and
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Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
mistreated if he did not cooperate.” Id., at 349a–351a.
The plaintiffs have noted that McKay no longer represents Mohammed and Royce no longer represents Ould Salahi. Brief for Respondents 15, n. 11. But these changes are irrelevant, for we assess standing as of the time a suit is filed, see Davis v. Federal Election Comm’n, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008), and in any event McKay himself continues to represent Al Hussayen, his partner now represents Mohammed, and Royce continues to represent individuals held in the custody of the U.S. military overseas.
A third plaintiff, Joanne Mariner, says in her affidavit (1) that she is a human rights researcher, (2) that “some of the work [she] do[es] involves trying to track down people who were rendered by the CIA to countries in which they were tortured”; (3) that many of those people “the CIA has said are (or were) associated with terrorist organizations”; and (4) that, to do this research, she “communicate[s] by telephone and e-mail with ... former detainees, lawyers for detainees, relatives of detainees, political activists, journalists, and fixers” “all over the world, including in Jordan, Egypt, Pakistan, Afghanistan, [and] the Gaza Strip.” App. to Pet. for Cert. 343a–344a.
Other plaintiffs, including lawyers, journalists, and human rights researchers, say in affidavits (1) that they have jobs that require them to gather information from foreigners located abroad; (2) that they regularly communicate electronically (e.g., by telephone or e-mail) with foreigners located abroad; and (3) that in these communications they exchange “foreign intelligence information” as the Act defines it. Id., at 334a–375a.
III
Several considerations, based upon the record along with commonsense inferences, convince me that there is a very high likelihood that Government, acting under the authority of § 1881a, will intercept at least some of the communications just described. First, the plaintiffs have engaged, and continue to engage, in electronic communications of a kind that the 2008 amendment, but not the prior Act, authorizes the Government to intercept. These communications include discussions with family members of those detained at Guantanamo, friends and acquaintances of *1158 those persons, and investigators, experts and others with knowledge of circumstances related to terrorist activities. These persons are foreigners

located outside the United States. They are not “foreign power[s]” or “agent[s] of ... foreign power [s].” And the plaintiffs state that they exchange with these persons “foreign intelligence information,” defined to include information that “relates to” “international terrorism” and “the national defense or the security of the United States.” See 50 U.S.C. § 1801 (2006 ed. and Supp. V); see, e.g., App. to Pet. for Cert. 342a, 366a, 373a–374a.
Second, the plaintiffs have a strong motive to engage in, and the Government has a strong motive to listen to, conversations of the kind described. A lawyer representing a client normally seeks to learn the circumstances surrounding the crime (or the civil wrong) of which the client is accused. A fair reading of the affidavit of Scott McKay, for example, taken together with elementary considerations of a lawyer’s obligation to his client, indicates that McKay will engage in conversations that concern what suspected foreign terrorists, such as his client, have done; in conversations that concern his clients’ families, colleagues, and contacts; in conversations that concern what those persons (or those connected to them) have said and done, at least in relation to terrorist activities; in conversations that concern the political, social, and commercial environments in which the suspected terrorists have lived and worked; and so forth. See, e.g., id., at 373a–374a. Journalists and human rights workers have strong similar motives to conduct conversations of this kind. See, e.g., id., at 342a (Declaration of Joanne Mariner, stating that “some of the information [she] exchange[s] by telephone and e-mail relates to terrorism and counterterrorism, and much of the information relates to the foreign affairs of the United States”).
At the same time, the Government has a strong motive to conduct surveillance of conversations that contain material of this kind. The Government, after all, seeks to learn as much as it can reasonably learn about suspected terrorists (such as those detained at Guantanamo), as well as about their contacts and activities, along with those of friends and family members. See Executive Office of the President, Office of Management and Budget, Statement of Administration Policy on S. 2248, p. 4 (Dec. 17, 2007) (“Part of the value of the [new authority] is to enable the Intelligence Community to collect expeditiously the communications of terrorists in foreign countries who may contact an associate in the United States”). And the Government is motivated to do so, not simply by the desire to help convict those whom the Government believes guilty, but also by the critical, overriding need to protect America from terrorism. See id., at 1 (“Protection
14

Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
of the American people and American interests at home and abroad requires access to timely, accurate, and insightful intelligence on the capabilities, intentions, and activities of ... terrorists”).
Third, the Government’s past behavior shows that it has sought, and hence will in all likelihood continue to seek, information about alleged terrorists and detainees through means that include surveillance of electronic communications. As just pointed out, plaintiff Scott McKay states that the Government (under the authority of the pre–2008 law) “intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Mr. Al–Hussayen.” App. to Pet. for Cert. 370a.
Fourth, the Government has the capacity to conduct electronic surveillance of the kind at issue. To some degree this capacity rests upon technology available to the *1159 Government. See 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions § 16:6, p. 562 (2d ed. 2012) (“NSA’s technological abilities are legendary”); id., § 16:12, at 572–577 (describing the National Security Agency’s capacity to monitor “very broad facilities” such as international switches). See, e.g., Lichtblau & Risen, Spy Agency Mined Vast Data Trove, Officials Report, N.Y. Times, Dec. 24, 2005, p. A1 (describing capacity to trace and to analyze large volumes of communications into and out of the United States); Lichtblau & Shane, Bush is Pressed Over New Report on Surveillance, N.Y. Times, May 12, 2006, p. A1 (reporting capacity to obtain access to records of many, if not most, telephone calls made in the United States); Priest & Arkin, A Hidden World, Growing Beyond Control, Washington Post, July 19, 2010, p. A1 (reporting that every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, telephone calls and other types of communications). Cf. Statement of Administration Policy on S. 2248, supra, at 1156 (rejecting a provision of the Senate bill that would require intelligence analysts to count “the number of persons located in the United States whose communications were reviewed” as “impossible to implement” (internal quotation marks omitted)). This capacity also includes the Government’s authority to obtain the kind of information here at issue from private carriers such as AT & T and Verizon. See 50 U.S.C. § 1881a(h). We are further told by amici that the Government is expanding that capacity. See Brief for Electronic Privacy Information Center et al. as 22–23 (National Security Agency will be able to conduct surveillance of most electronic communications between domestic and foreign points).

Of course, to exercise this capacity the Government must

have intelligence court authorization. But the Government

rarely files requests that fail to meet the statutory criteria.

See Letter from Ronald Weich, Assistant Attorney

General, to Joseph R. Biden, Jr., 1 (Apr. 30, 2012) (In

2011, of the 1,676 applications to the intelligence court,

two were withdrawn by the Government, and the

remaining 1,674 were approved, 30 with some

modification),

online

at

http://www.justice.gov/nsd/foia/foia_library/2011fisa-ltr.p

df. (as visited Feb. 22, 2013, and available in Clerk of

Court’s case file). As the intelligence court itself has

stated, its review under § 1881a is “narrowly

circumscribed.” In re Proceedings Required by § 702(i) of

the FISA Amendments Act of 2008, No. Misc. 08–01

(Aug. 17, 2008), p. 3. There is no reason to believe that

the communications described would all fail to meet the

conditions necessary for approval. Moreover, compared

with prior law, § 1881a simplifies and thus expedites the

approval process, making it more likely that the

Government will use § 1881a to obtain the necessary

approval.

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 *1160 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.

Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that

15

Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as “speculative.”
IV
A
The majority more plausibly says that the plaintiffs have failed to show that the threatened harm is “certainly impending.” Ante, at 1147 (internal quotation marks omitted). But, as the majority appears to concede, see ante, at 1150, and n. 5, certainty is not, and never has been, the touchstone of standing. The future is inherently uncertain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here.
The Court’s use of the term “certainly impending” is not to the contrary. Sometimes the Court has used the phrase “certainly impending” as if the phrase described a sufficient, rather than a necessary, condition for jurisdiction. See Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 67 L.Ed. 1117 (1923) (“If the injury is certainly impending that is enough”). See also Babbitt, 442 U.S., at 298, 99 S.Ct. 2301 (same). On other occasions, it has used the phrase as if it concerned when, not whether, an alleged injury would occur. Thus, in Lujan, 504 U.S., at 564, n. 2, 112 S.Ct. 2130, the Court considered a threatened future injury that consisted of harm that plaintiffs would suffer when they “soon” visited a government project area that (they claimed) would suffer environmental damage. The Court wrote that a “mere profession of an intent, some day, to return” to the project area did not show the harm was “imminent,” for “soon” might mean nothing more than “in this lifetime.” Id., at 564–565, n. 2, 112 S.Ct. 2130 (internal quotation marks omitted). Similarly, in McConnell v. Federal Election Comm’n, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), the Court denied standing because the Senator’s future injury (stemming from a campaign finance law) would not affect him until his reelection. That fact, the Court said, made the injury “too remote temporally to satisfy Article III standing.” Id., at 225–226,

124 S.Ct. 619.
On still other occasions, recognizing that “ ‘imminence’ is concededly a somewhat elastic concept,” Lujan, supra, at 565, n. 2, 112 S.Ct. 2130, the Court has referred to, or used (sometimes along with “certainly impending”) other phrases such as “reasonable probability” that suggest less than absolute, or literal certainty. See Babbitt, supra, at 298, 99 S.Ct. 2301 (plaintiff “must demonstrate a realistic danger of sustaining a direct injury” (emphasis added)); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“[I]t is the plaintiff’s burden to *1161 establish standing by demonstrating that ... the defendant’s allegedly wrongful behavior will likely occur or continue”). See also Monsanto Co. v. Geertson Seed Farms, 561 U.S. ––––, ––––, 130 S.Ct. 2743, 2754–2755, 177 L.Ed.2d 461 (2010) (“ ‘ “reasonable probability” ’ ” and “substantial risk”); Davis, 554 U.S., at 734, 128 S.Ct. 2759 (“realistic and impending threat of direct injury”); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (“genuine threat of enforcement”); Department of Commerce v. United States House of Representatives, 525 U.S. 316, 333, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999) ( “substantially likely” (internal quotation marks omitted)); Clinton v. City of New York, 524 U.S. 417, 432, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) ( “sufficient likelihood of economic injury”); Pennell v. San Jose, 485 U.S. 1, 8, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988) (“realistic danger” (internal quotation marks omitted)); Blum v. Yaretsky, 457 U.S. 991, 1001, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (“quite realistic” threat); Bryant v. Yellen, 447 U.S. 352, 367–368, 100 S.Ct. 2232, 65 L.Ed.2d 184 (1980) (“likely”); Buckley v. Valeo, 424 U.S. 1, 74, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam ) (“reasonable probability”). Taken together the case law uses the word “certainly” as if it emphasizes, rather than literally defines, the immediately following term “impending.”
B
1
More important, the Court’s holdings in standing cases show that standing exists here. The Court has often found standing where the occurrence of the relevant injury was far less certain than here. Consider a few, fairly typical,
16

Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
cases. Consider Pennell, supra. A city ordinance forbade landlords to raise the rent charged to a tenant by more than 8 percent where doing so would work an unreasonably severe hardship on that tenant. Id., at 4–5, 108 S.Ct. 849. A group of landlords sought a judgment declaring the ordinance unconstitutional. The Court held that, to have standing, the landlords had to demonstrate a “ ‘realistic danger of sustaining a direct injury as a result of the statute’s operation.’ ” Id., at 8, 108 S.Ct. 849 (emphasis added). It found that the landlords had done so by showing a likelihood of enforcement and a “probability,” ibid., that the ordinance would make the landlords charge lower rents—even though the landlords had not shown (1) that they intended to raise the relevant rents to the point of causing unreasonably severe hardship; (2) that the tenants would challenge those increases; or (3) that the city’s hearing examiners and arbitrators would find against the landlords. Here, even more so than in Pennell, there is a “realistic danger ” that the relevant harm will occur.
Or, consider Blum, supra. A group of nursing home residents receiving Medicaid benefits challenged the constitutionality (on procedural grounds) of a regulation that permitted their nursing home to transfer them to a less desirable home. Id., at 999–1000, 102 S.Ct. 2777. Although a Medicaid committee had recommended transfers, Medicaid-initiated transfer had been enjoined and the nursing home itself had not threatened to transfer the plaintiffs. But the Court found “standing” because “the threat of transfers” was “not ‘imaginary or speculative’ ” but “quite realistic,” hence “sufficiently substantial.” Id., at 1000–1001, 102 S.Ct. 2777 (quoting Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). The plaintiffs’ injury here is not imaginary or speculative, but “quite realistic.”
Or, consider Davis, supra. The plaintiff, a candidate for the United States *1162 House of Representatives, self-financed his campaigns. He challenged the constitutionality of an election law that relaxed the limits on an opponent’s contributions when a self-financed candidate’s spending itself exceeded certain other limits. His opponent, in fact, had decided not to take advantage of the increased contribution limits that the statute would have allowed. Id., at 734, 128 S.Ct. 2759. But the Court nonetheless found standing because there was a “realistic and impending threat,” not a certainty, that the candidate’s opponent would do so at the time the plaintiff filed the complaint. Id., at 734–735, 128 S.Ct. 2759. The threat facing the plaintiffs here is as “realistic and impending.”

Or, consider MedImmune, supra. The plaintiff, a patent licensee, sought a declaratory judgment that the patent was invalid. But, the plaintiff did not face an imminent threat of suit because it continued making royalty payments to the patent holder. In explaining why the plaintiff had standing, we (1) assumed that if the plaintiff stopped making royalty payments it would have standing (despite the fact that the patent holder might not bring suit), (2) rejected the Federal Circuit’s “reasonable apprehension of imminent suit” requirement, and (3) instead suggested that a “genuine threat of enforcement” was likely sufficient. Id., at 128, 129, 132, n. 11, 127 S.Ct. 764 (internal quotation marks omitted). A “genuine threat” is present here.
Moreover, courts have often found probabilistic injuries sufficient to support standing. In Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), for example, the plaintiffs, a group of individuals living near a proposed nuclear powerplant, challenged the constitutionality of the Price–Anderson Act, a statute that limited the plant’s liability in the case of a nuclear accident. The plaintiffs said that, without the Act, the defendants would not build a nuclear plant. And the building of the plant would harm them, in part, by emitting “non-natural radiation into [their] environment.” Id., at 74, 98 S.Ct. 2620. The Court found standing in part due to “our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions.” Ibid. (emphasis added). See also Monsanto Co., supra, at ––––, 130 S.Ct., at 2754–2755 (“A substantial risk of gene flow injures respondents in several ways” (emphasis added)).
See also lower court cases, such as Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1234–1235 (C.A.D.C.1996) (plaintiffs attack Government decision to limit timber harvesting; standing based upon increased risk of wildfires); Natural Resources Defense Council v. EPA, 464 F.3d 1, 7 (C.A.D.C.2006) (plaintiffs attack Government decision deregulating methyl bromide; standing based upon increased lifetime risk of developing skin cancer); Constellation Energy Commodities Group, Inc. v. FERC, 457 F.3d 14, 20 (C.A.D.C.2006) (standing based on increased risk of nonrecovery inherent in the reduction of collateral securing a debt of uncertain amount); Sutton v. St. Jude Medical S.C., Inc., 419 F.3d 568, 570–575 (C.A.6 2005) (standing based on increased risk of harm caused by implantation of defective medical device); Johnson v. Allsteel, Inc., 259 F.3d 885, 888–891
17

Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
(C.A.7 2001) (standing based on increased risk that Employee Retirement Income Security Act beneficiary will not be covered due to increased amount of discretion given to ERISA administrator).
How could the law be otherwise? Suppose that a federal court faced a claim by homeowners that (allegedly) unlawful dam- *1163 building practices created a high risk that their homes would be flooded. Would the court deny them standing on the ground that the risk of flood was only 60, rather than 90, percent?
Would federal courts deny standing to a plaintiff in a diversity action who claims an anticipatory breach of contract where the future breach depends on probabilities? The defendant, say, has threatened to load wheat onto a ship bound for India despite a promise to send the wheat to the United States. No one can know for certain that this will happen. Perhaps the defendant will change his mind; perhaps the ship will turn and head for the United States. Yet, despite the uncertainty, the Constitution does not prohibit a federal court from hearing such a claim. See 23 R. Lord, Williston on Contracts § 63:35 (4th ed. 2002) (plaintiff may bring an anticipatory breach suit even though the defendant’s promise is one to perform in the future, it has not yet been broken, and defendant may still retract the repudiation). E.g., Wisconsin Power & Light Co. v. Century Indemnity Co., 130 F.3d 787, 792–793 (C.A.7 1997) (plaintiff could sue insurer that disclaimed liability for all costs that would be incurred in the future if environmental agencies required cleanup); Combs v. International Ins. Co., 354 F.3d 568, 598–601 (C.A.6 2004) (similar).
Would federal courts deny standing to a plaintiff who seeks to enjoin as a nuisance the building of a nearby pond which, the plaintiff believes, will very likely, but not inevitably, overflow his land? See 42 Am. Jur. 2d Injunctions §§ 2, 5 (2010) (noting that an injunction is ordinarily preventive in character and restrains actions that have not yet been taken, but threaten injury). E.g., Central Delta Water Agency v. United States, 306 F.3d 938, 947–950 (C.A.9 2002) (standing to seek injunction where method of operating dam was highly likely to severely hamper plaintiffs’ ability to grow crops); Consolidated Companies, Inc. v. Union Pacific R. Co., 499 F.3d 382, 386 (C.A.5 2007) (standing to seek injunction requiring cleanup of land adjacent to plaintiff’s tract because of threat that contaminants might migrate to plaintiff’s tract).
Neither do ordinary declaratory judgment actions always

involve the degree of certainty upon which the Court insists here. See, e.g., Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941) (insurance company could seek declaration that it need not pay claim against insured automobile driver who was in an accident even though the driver had not yet been found liable for the accident); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–244, 57 S.Ct. 461, 81 L.Ed. 617 (1937) (insurance company could seek declaration that it need not pay plaintiff for disability although plaintiff had not yet sought disability payments). See also, e.g., Associated Indemnity Corp. v. Fairchild Industries, Inc., 961 F.2d 32, 35–36 (C.A.2 1992) (insured could seek declaration that insurance company must pay liability even before insured found liable).
2
In some standing cases, the Court has found that a reasonable probability of future injury comes accompanied with present injury that takes the form of reasonable efforts to mitigate the threatened effects of the future injury or to prevent it from occurring. Thus, in Monsanto Co., 561 U.S., at ––––, 130 S.Ct., at 2754–2756 plaintiffs, a group of conventional alfalfa growers, challenged an agency decision to deregulate genetically engineered alfalfa. They claimed that deregulation would harm them because their neighbors would plant the genetically engineered seed, bees would obtain *1164 pollen from the neighbors’ plants, and the bees would then (harmfully) contaminate their own conventional alfalfa with the genetically modified gene. The lower courts had found a “reasonable probability” that this injury would occur. Ibid. (internal quotation marks omitted).
Without expressing views about that probability, we found standing because the plaintiffs would suffer present harm by trying to combat the threat. Ibid. The plaintiffs, for example, “would have to conduct testing to find out whether and to what extent their crops have been contaminated.” Id., at ––––, 130 S.Ct., at 2755. And they would have to take “measures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically-engineered alfalfa.” Ibid. We held that these “harms, which [the plaintiffs] will suffer even if their crops are not actually infected with” the genetically modified gene, “are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional
18

Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
standing analysis.” Id., at ––––, 130 S.Ct., at 2755.
Virtually identical circumstances are present here. Plaintiff McKay, for example, points out that, when he communicates abroad about, or in the interests of, a client (e.g., a client accused of terrorism), he must “make an assessment” whether his “client’s interests would be compromised” should the Government “acquire the communications.” App. to Pet. for Cert. 375a. If so, he must either forgo the communication or travel abroad. Id., at 371a–372a (“I have had to take measures to protect the confidentiality of information that I believe is particularly sensitive,” including “travel that is both time-consuming and expensive”).
Since travel is expensive, since forgoing communication can compromise the client’s interests, since McKay’s assessment itself takes time and effort, this case does not differ significantly from Monsanto. And that is so whether we consider the plaintiffs’ present necessary expenditure of time and effort as a separate concrete, particularized, imminent harm, or consider it as additional evidence that the future harm (an interception) is likely to occur. See also Friends of the Earth, Inc., 528 U.S., at 183–184, 120 S.Ct. 693 (holding that plaintiffs who curtailed their recreational activities on a river due to reasonable concerns about the effect of pollutant discharges into that river had standing); Meese v. Keene, 481 U.S. 465, 475, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987) (stating that “the need to take ... affirmative steps to avoid the risk of harm ... constitutes a cognizable injury”).
3
The majority cannot find support in cases that use the words “certainly impending” to deny standing. While I do not claim to have read every standing case, I have examined quite a few, and not yet found any such case. The majority refers to Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). But in that case the Court denied standing to a prisoner who challenged the validity of a death sentence given to a different prisoner who refused to challenge his own sentence. The plaintiff feared that in the absence of an appeal, his fellow prisoner’s death sentence would be missing from the State’s death penalty database and thereby skew the database against him, making it less likely his challenges to his own death penalty would succeed. The Court found no standing. Id., at 161, 110

S.Ct. 1717. But the fellow prisoner’s lack of appeal would have harmed the plaintiff only if (1) the plaintiff separately obtained federal habeas relief and was then reconvicted and resentenced to death, (2) he sought review of his new sentence, and (3) during that review, his death sentence was *1165 affirmed only because it was compared to an artificially skewed database. Id., at 156–157, 110 S.Ct. 1717. These events seemed not very likely to occur.
In DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006), taxpayers challenged the constitutionality of a tax break offered by state and local governments to a car manufacturer. We found no standing. But the plaintiffs would have suffered resulting injury only if that the tax break had depleted state and local treasuries and the legislature had responded by raising their taxes. Id., at 344, 126 S.Ct. 1854.
In Lujan, the case that may come closest to supporting the majority, the Court also found no standing. But, as I pointed out, supra, at 1160 – 1161, Lujan is a case where the Court considered when, not whether, the threatened harm would occur. 504 U.S., at 564, n. 2, 112 S.Ct. 2130. The relevant injury there consisted of a visit by environmental group’s members to a project site where they would find (unlawful) environmental depredation. Id., at 564, 112 S.Ct. 2130. The Court pointed out that members had alleged that they would visit the project sites “soon.” But it wrote that “soon” might refer to almost any time in the future. Ibid., n. 2. By way of contrast, the ongoing threat of terrorism means that here the relevant interceptions will likely take place imminently, if not now.
The Court has, of course, denied standing in other cases. But they involve injuries less likely, not more likely, to occur than here. In a recent case, Summers v. Earth Island Institute, 555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009), for example, the plaintiffs challenged a regulation exempting certain timber sales from public comment and administrative appeal. The plaintiffs claimed that the regulations injured them by interfering with their esthetic enjoyment and recreational use of the forests. The Court found this harm too unlikely to occur to support standing. Id., at 496, 129 S.Ct. 1142. The Court noted that one plaintiff had not pointed to a specific affected forest that he would visit. The Court concluded that “[t]here may be a chance, but ... hardly a likelihood,” that the plaintiff’s “wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations.” Id., at 495, 129 S.Ct. 1142 (emphasis
19

Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013)
added).
4 In sum, as the Court concedes, see ante, at 1150, and n. 5, the word “certainly” in the phrase “certainly impending” does not refer to absolute certainty. As our case law demonstrates, what the Constitution requires is something more akin to “reasonable probability” or “high probability.” The use of some such standard is all that is necessary here to ensure the actual concrete injury that the

Constitution demands. The considerations set forth in Parts II and III, supra, make clear that the standard is readily met in this case.
* * *
While I express no view on the merits of the plaintiffs’ constitutional claims, I do believe that at least some of the plaintiffs have standing to make those claims. I dissent, with respect, from the majority’s contrary conclusion.
	  

20

 
 tinitrd ~tatrs ~rnatr
WASHINGTON, DC 20510
November 20, 2013
The Honorable Donald Verrilli Jr. Solicitor General 950 Pennsylvania Ave NW Washington, DC 20530-000 1
Dear Solicitor General Verrilli:
We write to bring to your attention a matter regarding Clapper v. Amnesty, a U.S. Supreme Court case decided earlier this year. On February 26, 2013, in a 5-4 decision, the U.S. Supreme Court determined that respondents in the case of Clapper v. Amnesty did not have standing to challenge the FISA Amendments Act. We are concerned that the Court's decision was not informed by a complete understanding of how the FISA Amendments Act (FAA) has been interpreted and implemented. Official records suggest that the Court was given misleading information that appears to have informed the majority's decision, and that some of these misleading statements have not yet been acknowledged or corrected.
We are pleased that the Justice Department has now publicly clarified that going forward, its policy will be to inform defendants when evidence against them has been acquired or derived from surveillance conducted under Section 702 of the FISA Amendments Act (FAA). In Clapper v. Amnesty, the government represented to the Court that it provides notice to a defendant of evidence obtained or derived under the FAA, a statement th at was then incorporated into the majority opinion in the case. It has become clear, however, that this was not actually the policy practiced in the Justice Department and that the government misrepresented its policy and practice to the Court. Last month, by acknowledging for the first time the use ofFAA-derived evidence in a criminal case, the government appears to have at least begun to realign its policy with its representations in Clapper. This is an important step, since it will finally provide the courts with the opportunity to adjudicate the constitutionality of the FISA Amendments Act, which the ruling in Clapper had appeared to foreclose.
Still, we are concerned that the Justice Department has not gone far enough to correct incomplete or misleading representations that we believe were made by the government to the Supreme Court in Clapper v. Amnesty.
In Clapper v. Amnesty, the majority opinion characterizes as "highly speculative" the plaintiffs' fear that "the Government will decide to target the communications of non-US persons with whom they communicate," and states that the "respondents' theory necessarily rests on their assertion that the Government will target other individuals- namely their foreign contacts." These and other statements in the opinion indicate the Court's view that the only way the plaintiffs' communications could be intercepted under the FAA is if those communications are to or from a foreign intelligence target.
Yet with the disclosure and declassification in recent months of relevant documents regarding Section 702, the role of ' about' collection under the FAA is now public, although not widely

understood. In addition to authorizing the collection of communications to and from foreign, overseas targets, the FISA Amendments Act also has been secretly interpreted to authorize the collection of communications that are merely about a targeted overseas foreigner.
This form of collection allows the government - through the "upstream" collection under Section 702 - to collect any communication whose content includes an identifier, such as an email address, associated with an overseas foreigner who may be a foreign intelligence target. But according to the FISA Court's October 2011 opinion, the 'about' collection likely results in the acquisition of"tens of thousands" of wholly domestic communications every year. In other words, tens of thousands of emails between law-abiding Americans are likely being collectedeven though these Americans are not actually communicating directly with a foreign intelligence or terrorism target. As FAA collection was intended to target persons "reasonably believed to be located outside the United States," and targeting procedures were intended to "prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States," the FISA Court in its October 20 11 opinion called this expanded FAA collection a circumvention of the "spirit" of the law and a "cause of concern for the Court."
In Clapper v. Amnesty, the government' s argument that respondents could not demonstrate that their communications had been collected under the FISA Amendments Act- in part, because they could not prove that their contacts were targets under the FISA Amendments Act - was incorporated into the Supreme Court's majority opinion determining that the respondents did not have standing.
In the context of Clapper v. Amnesty, the significance of the 'about' collection under Section 702 is that in order to have been a subject of FISA Amendments Act collection, the respondents would not necessarily have had to have communicated with an FAA target. They could also have had their communications collected if they sent international or even wholly domestic emails in which the content included an FAA target's email address.
We are not claiming to know whether knowledge of the 'about' collection would have changed the majority' s decision in this case. But we believe that the existence of the 'about' collection clearly increases the likelihood that the respondents' communications would have been collected under the FISA Amendments Act, and thus we are concerned that this collection was not contemplated in the government's arguments or the Court's opinion. In fact, the government's statements and oral arguments were misleading in that they suggested that Section 702 collection only involves communications to and from particular targets.
We would appreciate answers to the following questions: • Was the fact that the communications of Americans might also be collected under the FISA Amendments Act if they are communicating about an FAA target conveyed to the Supreme Court during consideration of Clapper v. Amnesty? If not, why not? • Was the FISA Court's October 2011 opinion made available to the Supreme Court during consideration of this case? If not, why not?

• Do you stand by the statements and oral arguments the government made to the Court in Clapper v. Amnesty, including those concerning the provision of notice to criminal defendants? If so, please explain why.
• If not, can you please provide or describe each statement and oral argument that you no longer stand by and explain how you intend to correct the record with regard to each of those representations made to the Court in Clapper v. Amnesty?
We believe that a fo rmal notification to the Supreme Court of the government's misrepresentations in the case~both relating to its notice policy and relating to its practice of ' about' collection under Section 702 of the FISA Amendments Act-would be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court.
We look forward to your reply.
Warm Regards

Mark Udall U.S. Senator

~~ Ron Wyden U.S. Senator

1(t-C> ·~,___~ -·-·-- -
Martin einrich U.S. Senator

 
 tinitcd ~rates ~cnatc
WASHINGTON, DC 20510
May 13,2014
The Honorable Donald B. Verrilli, Jr. Solicitor General 950 Penn..:;ylvania Avenue NW Washington, D.C. 20530
Dear Solicitor General Verrilli:
We have received the Justice Department's reply to our letter regarding the U.S. Supreme Court case Clapper v. Amnesty International USA (Clapper v. Amnesty). We appreciate your attention to this important matter. However, we disagree with the reply's characterization of certain key facts, and we remain concerned that inaccurate statements appear to have been made to the Supreme Court in regard to this case, and that some of these misleading statements have not been acknowledged or corrected. We write to lay out our concerns about these statements in more detail.
The Justice Department's reply acknowledges that the government's collection of communications under section 702 of the Foreign Intelligence Surveillance Act includes communications that are "about" targeted individuals, as well as to or from targeted individuals, and it also acknowledges that this formerly secret fact was not presented to the Supreme Court during the consideration of Clapper v. Amnesty. However, the reply also claims that the Justice Department "made no statements that could be reasonably understood as denying the existence of ' about' collection." We respectfully disagree with this statement.
In the Reply Brief submitted to the Supreme Court in October 2012, the Justice Department stated that in order to support their claim that their communications were likely to be collected, the Amnesty plaintiffs "must conjecture about a number of matters, including (1) the government's foreign-intelligence collection interests; (2) the government's targeting decisions and priorities and whether they would lead to a decision to target respondents' contacts..." 1 Furthermore, during oral arguments you stated:
in addition to the speculation I just described, once you get through all that, you still have to speculate about whether the communication that - whether the persons with whom the Respondents are communicating are going to be targeted ... 2
These statements - if taken at face value - appear to foreclose the possibility of collection under section 702 intercepting any communications that are not to or from particular targets. In other words, the Justice Department indicated that communications that are
1 Repl y Brief for Petitioner, Clapper v. Amnesty International USA, October 2012, p. 14. Emphasis added. 2 Official transcript of oral arguments, Clapper v. Amnesty International USA, p. II. Emphasis added. Retrieved from http ://www.suprcmecourt.gov/oral arguments/argument transcripts/ Il-l 025.pc!.f.

merely "about" a target would not be collected. But recently declassified court opinions make it clear that legitimate communications about particular targets can also be intercepted under this authority. Since this fact was classified at the time, the plaintiffs did not raise it, but in our view this does not make these misleading statements acceptable.
The Justice Department's reply also states that the "about" collection "did not bear upon the legal issues in the case." But in fact these misleading statements about the limits of section 702 surveillance appear to have informed the Supreme Court' s analysis. In writing for the majority, Justice Alito echoed your statements to the Court by stating that the "respondents' theory necessarily rests on their assertion that the Government will target other individuals - namely their foreign contacts."3 This statement, like your statements, appears to foreclose the possibility of "about" collection.
We recognize that the inclusion of this misleading statement in the Court's analysis does not prove that the Court would have ruled differently if it had been given a fuller set of facts. Indeed, it is entirely possible that the Court would have ruled in exactly the same way. But while the Justice Department may claim that the Amnesty plaintiffs' arguments would have been "equally speculative" if they had referenced the "about" collection, that should be a determination for the courts, and not the Justice Department, to make.
As we have noted elsewhere, we are concerned that the executive branch's decade-long reliance on a secret body of surveillance law has given rise to a culture of misinformation, and led senior officials to repeatedly make misleading statements to the public, Congress and the courts about domestic surveillance. The way to end this culture of misinformation and restore the public trust is to acknowledge and correct inaccurate statements when they are made, and not seek to ignore or justify them. We will continue to engage with you and other executive branch officials to ensure that this takes place.
Sincerely,
Mark Udall
3 Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), p. 12. Emphasis added.