Foreign Surveillance and the Future of Standing to Sue Post-Clapper 
Released: 2013-07-10T00:00:00

Introduction

In recent weeks, several media accounts have reported that U.S. intelligence agencies are actively gathering data from a wide range of sources. The records resulting from the alleged surveillance activity reportedly include vast sums of metadata on phone usage, emails, file transfers, and live chats. In response to the media accounts, lawmakers and Administration officials have acknowledged that the government, relying on authority in Section 215 of the USA Patriot Act, has obtained a court order allowing for the acquisition of metadata from service providers, such as the Verizon Business Network Services, Inc. (Verizon). In addition, the Director of National Intelligence has acknowledged the existence of PRISM, "an internal government computer system used to facilitate the government's ... collection of foreign intelligence information from electronic communication service providers." The acknowledgment by the Director of National Intelligence indicated that Section 702 of the Foreign Intelligence Surveillance Act of 1970 (FISA) was the legal basis relied on by the government to gather the data associated with the PRISM system. In describing the government surveillance efforts, the Director of National Intelligence notes that while targeting may "incidentally intercept[]" U.S. persons, targeting procedures "ensure that an acquisition targets non-U.S. persons reasonably believed to be outside the United States for specific purposes" and minimization procedures prohibit the dissemination of information about a U.S. person unless it is "necessary to understand foreign intelligence or assess its importance, is evidence of a crime, or indicates a threat of death or serious bodily harm."

The attention surrounding the allegedly massive government data gathering program has sparked outrage in some quarters, with some entities contemplating filing lawsuits to challenge the government practices on constitutional grounds and others going so far as to actually file suit. The new filings only add to the litigation challenging the government's surveillance practices, as lawsuits that pre-date the recent media reports are pending in federal courts, awaiting disposition.

The renewed interest in litigation regarding the government surveillance programs comes on the heels of a recent Supreme Court ruling in Clapper v. Amnesty International . In Clapper, the Court held that a group of attorneys and human rights organizations did not have standing to challenge a provision of the 2008 amendments to the FISA, which established new statutory authority for U.S. government surveillance directed at the communications of non-U.S. citizens abroad. The Court reasoned that the Clapper plaintiffs did not have standing because the attorneys and interest groups bringing the lawsuit had not sufficiently shown that they would be injured by the 2008 law because their fears of being subject to government surveillance were dependent on a chain of speculative contingences. This report discusses the doctrine of standing and explores how that doctrine formed the basis of the Clapper decision. After discussing the Clapper decision, the report will conclude with a discussion about how the Supreme Court's most recent discussion of standing may affect litigation over recently revealed government surveillance efforts.

Background on the Doctrines of Constitutional and Prudential Standing

In every case that is filed in federal court, the party bringing suit must establish standing to prosecute the action. The essential question of standing is whether a litigant is "entitled to have the court decide the merits of the dispute or of particular issues." The doctrine of standing primarily derives from the text of Article III, Section 2 of the Constitution, which extends federal judicial power to certain "cases" and "controversies." In limiting the judicial powers to "cases" and "controversies," the Supreme Court has held that Article III restricts the federal courts to exercising 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 violations of law." In other words, the "cases" or "controversies" language of Article III has been interpreted to be a "fundamental limit[]" on the jurisdiction of federal courts such that a federal court cannot exercise its power unless it is founded upon the facts of a controversy between truly adverse parties. The Supreme Court has called the "Article III doctrine that requires a litigant to have 'standing' to invoke the powers of a federal court to be perhaps the most important of [the case-or-controversy] doctrines."

The "irreducible constitutional minimum" of standing contains three elements. First, the plaintiff must have suffered an "injury in fact," which is an "invasion of a legally protected interest" that is both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Second, there must be a "causal connection" between the injury and the conduct that is complained of, such that the injury is "fairly traceable" to the challenged action. Finally, it must be likely that the injury will be redressed by a favorable decision. Moreover, if the plaintiff is seeking prospective equitable relief, such as a declaration from the court that certain conduct is illegal (a declaratory judgment) or an order preventing certain conduct from taking place (an injunction), a mere allegation of past harm is insufficient to establish standing. Instead, when declaratory or injunctive relief is sought, a plaintiff "must show that he ... 'is immediately in danger of sustaining some direct injury' as a result of the challenged ... action."

Beyond the three requirements of Article III standing, the Court has also endorsed the so-called prudential standing doctrine, which embodies "judicially self-imposed limits on the exercise of federal jurisdiction." Among the principles that encompass the prudential standing doctrine are the prohibition on one litigant raising another person's legal rights, the rule barring adjudication of generalized grievances, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked. While the doctrine of prudential standing does not derive from the text of Article III—the Court has described the prudential dimensions of standing as non-jurisdictional and a matter of "judicial self-governance" —the two doctrines are "closely related" and overlap.

Collectively, by insisting on these requirements for standing, Article III and prudential standing doctrines ensure that legal injuries that are shared in equal measure by all or a large class of citizens are properly a subject for the elected branches and not the judiciary. As a consequence, the standing doctrine is part and parcel of the doctrine of separation of powers, as requiring a litigant to have standing to pursue a federal lawsuit allows the judiciary to avoid unnecessarily intruding on the powers vested in the executive and legislative branch. Moreover, the doctrine of standing, by requiring litigants to have suffered an injury, is intended to allow legal questions to be presented to a federal court only in a concrete factual context by individuals who have a serious stake in the litigation.

Clapper v. Amnesty International

The Clapper case was a constitutional challenge to Section 702 of the FISA, a 2008 amendment that generally provides the federal government with the authority to engage in eavesdropping to gather foreign intelligence information from foreign nations and non-state actors while they are abroad, so long as there is no intentional targeting of U.S. persons. Specifically, Section 702 provides that the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to one year, the "targeting of persons reasonably believed to be located outside of the United States to acquire foreign intelligence information." The statute provides, however, that in acquiring such foreign intelligence the government may not intentionally (1) target any person known to be or reasonably believed to be in the United States; (2) target a U.S. person; or (3) acquire any communication where the sender and all recipients are known to be located in the United States. Moreover, the statute requires that the Attorney General and the Director of National Intelligence conduct such acquisitions pursuant to targeting and minimization procedures that have been approved by the Foreign Intelligence Surveillance Court (FISC), a non-adversarial court authorized under FISA.

After the 2008 law went into effect, a wide range of litigants challenged Section 702 of FISA on First and Fourth Amendment grounds in federal court, seeking an order enjoining enforcement of the law. The litigants included a group of attorneys with clients with connections to terrorist-related cases, several journalists who have overseas sources in countries where terrorism may be ongoing, and human rights researchers who claimed to be seeking to talk to people subjected to torture in secret prisons overseas. The litigants had two theories for why they had suffered a sufficient injury such that they had standing to raise their claims in federal court. First, the plaintiffs argued that they would be injured in the future because the extensive monitoring authorized by Section 702 would allow interceptions of their conversations and would chill their speech and invade their privacy interests. Second, the plaintiffs also argued that because of their belief that they were being monitored, they had already been injured because they were required to take steps to protect their confidential contacts at allegedly considerable expense. For example, one plaintiff averred in a sworn statement that they had to travel to their contacts in person to avoid having their electronic or wired communications monitored. However, the litigants could not offer any sort of proof that their conversations were actually being targeted through the Section 702 surveillance.

In August 2009, a federal judge in New York City ruled that the litigants had not sufficiently alleged that they would be targeted by government surveillance and dismissed the case on standing grounds. Specifically, the court held that the plaintiffs had failed to establish standing because an injury for Article III purposes requires something more than an "abstract fear that [one's] communications will be monitored." On appeal to the Second Circuit Court of Appeals, the circuit court disagreed. The Second Circuit stated that to determine whether a plaintiff who has not yet been injured has standing to challenge a federal law or policy, a court needs to find that the law or policy creates an "objectively reasonable likelihood" of injury. With respect to the plaintiffs challenging Section 702 of FISA, the Second Circuit ruled that the plaintiffs had shown an "objectively reasonable likelihood" of being overheard because, "unlike most Americans," the plaintiffs engage in professional activities that make it reasonably likely that their privacy will be invaded and their conversations overheard. The Supreme Court granted certiorari to hear the case in May of last year and heard argument last October.

The Majority Opinion

On February 26, 2013, Justice Alito, writing for a five-member majority of the Court, reversed the Second Circuit and rejected the two theories of standing proposed by the plaintiffs. Before discussing the merits of each of the litigants' standing theories, the Court reasoned that, because of the separation of powers concerns that underlie the doctrine of Article III standing, an inquiry into standing must be "especially rigorous" when reaching the merits of a dispute that would require a court to opine on whether an action taken by another branch of the federal government would be unconstitutional. Relatedly, the Court also emphasized that standing will often be lacking in cases in which the judiciary reviews "actions of the political branches in the fields of intelligence gathering and foreign affairs." With those broad principles in mind, the Court turned to the plaintiffs' specific arguments as to why they had standing.

With respect to the plaintiff's "future injury" argument, the Court held that a future injury, for constitutional standing purposes, must be "certainly impending" or "imminent," and allegations that an injury is "possible" in the future are insufficient. Applying that test to the Clapper plaintiffs, the Court found that the litigants' claims that they would be targeted by surveillance authorized under Section 702 were too speculative to bestow Article III standing based on a future injury. The Court noted that the litigants' theory for how they would be injured in the future by Section 702 was based on a series of assumptions that all had to occur in order for them to have an injury that could be traced to the federal law and redressed by a favorable court ruling. Amongst the plaintiffs' assumptions, the Court noted that the Clapper litigants were assuming that (1) the government is thinking of imminently targeting the communication of the plaintiffs' foreign contacts; (2) the government would use Section 702, as opposed to other sources of authority, to engage in the surveillance; (3) the FISC would authorize such surveillance; (4) the government would actually succeed in eavesdropping on one of their contacts; and (5) the eavesdropping would actually capture the contents of the conversations of one of the litigants, injuring them. In other words, for the Court, the Clapper litigants' standing theory was based too much on a speculative chain of events that might never occur, and, because an injury for standing purposes must be "certainly impending," the plaintiffs could not satisfy the constitutional requirement for being allowed to sue.

In a footnote, the Court opined on the argument that, given that a lack of proof was fatal to the plaintiffs' standing, the government could help "resolve the standing inquiry by disclosing to a court" in private whether it was intercepting particular communications and what minimization procedures it was using. The Court rejected this suggestion because it was not the government's burden to prove standing and such proceedings would provide a means by which a terrorist could determine whether the government was conducting surveillance against a specific target.

The Court also rejected the argument that the plaintiffs had already been injured because they had incurred expenses in taking measures to avoid being monitored while talking with their foreign contacts. Specifically, Justice Alito stated that a plaintiff cannot "manufacture standing" by choosing to make expenditures on a hypothetical future harm or else an "enterprising plaintiff would be able to secure ... standing simply by making an expenditure based on a nonparanoid fear." The Court also noted that any expenses that the plaintiffs incurred to avoid government monitoring were not the product of Section 702, but of their own subjective fear of surveillance, and, as a result, failed to meet the second requirement of Article III standing that injury be caused by the challenged conduct.

The Dissenting Opinion

Justice Breyer filed a dissenting opinion for four members of the Court. The dissenting opinion's central disagreement with the majority opinion was with respect to the "certainly impending" standard for evaluating whether a plaintiff had standing to complain of a future injury. Specifically, the dissenters found that while the Court had used the language of "certainly impending" in the past, it was never meant to be a necessary standard by which to adjudge an injury-in-fact. Instead, akin to the Second Circuit's "objectively reasonable likelihood" of injury test, the dissenters argued that the Court should have used a standard of "reasonable probability" or "high probability" to determine "standing" instead of a standard that the injury must be "certainly impending." If the probabilistic standard were used in this case, the dissenters said, the challengers would have met it because the government had a strong motive and the capacity to engage in the interception of communications of the litigants.

Future of Litigation Challenging the Foreign Surveillance Practices

Four months after the Supreme Court's ruling in Clapper came the avalanche of news stories alleging that the U.S. intelligence community was engaged in broad intelligence gathering measures, including the capturing of a broad universe of records from particular companies. The question, raised by some, is whether recent media accounts, coupled with the government's acknowledgement of a vast surveillance program, breathe new life into the Clapper -like challenges to government surveillance.

On one hand, the ability of a plaintiff to muster enough evidence to establish standing has been arguably boosted by recent revelations about government surveillance efforts. For example, the ACLU's recent lawsuit against the government challenging the use of section 215 of the Patriot Act to cull telephone metadata alleges that the plaintiffs are either former recent or "current customers of Verizon ..." The ACLU Complaint, noting media reports that have published an order from the FISC directing Verizon to produce "all call detail records or 'telephony metadata'" of its customers, including those "wholly within the United States," alleges that as a customer of Verizon, the ACLU and other plaintiffs' records are covered by the court order and given to the government. Likewise, in its petition to the Supreme Court challenging the FISC order requiring Verizon to produce certain metadata, EPIC, a privacy advocacy group, also contends that it is a Verizon customer and subject to the FISC order. A lawsuit brought by former federal prosecutor Larry Klayman, which challenges both the telephony metadata gathering program and the PRISM program, makes a similar allegation. The newly filed legal challenges also note that the surveillance threatens confidential work that the litigants respectively undertake, such as communicating with potential "witnesses, informants, or sources." As such, the arguments of the new litigants on how they have been injured are more specific and theoretically less speculative than the arguments made by the plaintiffs in Clapper . For example, unlike the plaintiffs in Clapper , the ACLU plaintiffs and EPIC can prove that the government has obtained court approval and is using specific authority to acquire data that necessarily includes the data pertaining to the litigants' communications. Moreover, the ACLU's and EPIC's respective lawsuits are arguably distinguishable from the Clapper suit. The new lawsuits challenge a concrete application of a statute premised on past and future injuries. In Clapper , by contrast, the Supreme Court was only addressing litigation where the plaintiffs did not allege any past or ongoing interception of their communications, but only the possibility of future interception, which appears to strengthen the standing arguments for the newly filed lawsuits. Moreover, while the fact is that plaintiffs like the ACLU and EPIC are complaining of an injury that is arguably shared by the millions of other Verizon customers, that fact in and of itself does not make the claim a generalized grievance.

Nonetheless, while recent revelations in the press may have helped boost an argument for establishing standing, demonstrating Article III standing remains a difficult task, especially in light of Clapper . While the plaintiffs, such as those in the ACLU, Klayman, and EPIC cases, may be able to demonstrate that they use Verizon in their communications and that Verizon's data is the subject of a FISC order, the litigants are still arguably making a series of the same assumptions that troubled the Clapper court. For example, the plaintiffs in these newly filed cases still have "no actual knowledge of the Government's ... targeting practices," and are assuming not only that the government has been successful in acquiring the data in question but also that the government is actually using or it is "certainly impending" that the government will use targeting techniques that cause the specific injury alleged, an erosion of the confidentiality of certain communications. For example, the ACLU's complaint merely speculates that the information provided to the government " could readily be used to identify those who contact Plaintiffs for legal assistance ..." Similar statements were viewed as insufficient to establish standing in Clapper, as having the capability to injure cannot be equated with the concept that an injury is "certainly impending." An "individual's ... fear that, armed with the fruits of" the surveillance, the government "might in the future take some other and additional action detrimental to that individual" is not a "specific present objective" injury sufficient to demonstrate Article III standing.

While the plaintiffs and the petitioner in the newly filed litigation will likely argue that the general existence of a known surveillance program causes a chilling effect, resulting in an injury, it is questionable whether that injury in and of itself is sufficient to establish Article III standing. The Supreme Court in 1972 rejected the argument that standing can be crafted from the "very existence of ... [a] data-gathering system produc[ing] a constitutionally impermissible chilling effect." An "abstract injury" is not enough for standing, but instead a plaintiff must show that the injury is both "real and immediate." It is unclear whether claims that surveillance that is alleged to have the potential to erode the confidentiality of certain conversations is a sufficiently concrete and particularized injury necessary to demonstrate constitutional standing. Relatedly, where the injury alleged is of an "abstract and indefinite nature" and shared by "large numbers of Americans," the Court has found that the "political process, rather than the judicial process, may provide the more appropriate remedy for" such a "widely shared grievance."

Finally, as Clapper makes clear, any attempt by a plaintiff to try to obtain evidence to substantiate claims regarding the sufficiency of a particular injury will likely not go very far. The Clapper Court reiterated that it was the plaintiffs' burden to "prove their standing by pointing to specific facts." Attempts to obtain discovery of specific evidence to prove standing may face other obstacles, such as the state secrets doctrine. In addition, the Clapper court called requests for in camera review by a district court of evidence to determine if the state secrets doctrine is even applicable "puzzling" because of its potential to disclose to terrorists details about the actual targets of government surveillance. As a consequence, an affidavit from the government that the state secrets doctrine is applicable to any discoverable material may be sufficient to squash any efforts at jurisdictional discovery aimed at establishing standing. Given this and given the Clapper court's statement that the standing inquiry must be "especially rigorous" in cases seeking a court to "review actions of the political branches in the fields of intelligence gathering and foreign affairs," it appears that standing will remain an obstacle for litigants challenging government surveillance programs. As a consequence, the recent news accounts and disclosures by the government may not be enough to allow a federal court to reach the merits of the legality of certain government surveillance efforts.