Caveat Vendor

Supreme Court: Speculative Spying Not Enough for Standing

March 01, 2013

Devon Winkles

The Supreme Court ruled 5-4 this week that Amnesty International did not have standing to challenge 2008 FISA amendments that authorized surveillance on non-U.S. persons located outside of the United States. The ruling, which reversed a Second Circuit decision, will make it more difficult to challenge the surveillance provision without alleging that actual surveillance of one’s communications has taken place.

Justice Alito, writing for the conservative majority of the court, stated that Amnesty International’s theory of future injury was too speculative to satisfy the requirement that threatened injury must be “certainly impending.” There are a series of outcomes that had to be met—for instance, the government would have to target the communications in question, the Foreign Intelligence Surveillance Court would have to review the surveillance procedures, and the government would have to succeed in intercepting the communications—before the “highly speculative” injury became reality. Additionally, Amnesty International could not establish that any injury was fairly traceable to the challenged statute, 50 U.S.C. §1881a, because there are other means, such as other FISA provisions, by which the government could engage in surveillance of its communications.

Addressing Amnesty International’s alternative argument, the Court ruled that Amnesty International’s decision to take measures to protect the confidentiality of its international communications was insufficient to establish present injury because, as the Court had already established, the harm was not certainly impending and not fairly traceable to §1881a.

Justice Breyer, joined by three other justices, dissented. The dissenters argued that the harm was not too speculative to support standing in the declaratory judgment action. They asserted that, contrary to the majority’s opinion, “certainty is not, and never has been, the touchstone of standing,” and that the prospect of action that is “reasonably likely” or “highly likely” is sufficient. The dissenters believed that at least some of the plaintiffs in the case met that threshold.

The FISA amendments implicate substantial national security concerns and were designed to improve the government’s ability to detect planned acts of terror and to protect the homeland. Nothing in the Court’s decision addresses the policy implications of its decision, but the upshot of the Court’s ruling is to make it extremely difficult for anyone to challenge the FISA amendments. Only someone who can establish definitively that his or her communications were intercepted under authority of the statute will have standing.

Editor's Note: The decision stands as a stark example of how a technical (but important) legal doctrine – in this case, standing – can advance or frustrate specific substantive results. The decision effectively establishes a near-immunity to judicial scrutiny of governmental action under the statute. I suspect, given the subject matter, that net impact is one that aligns comfortably with each individual justice’s substantive inclinations. (I couldn’t resist the observation: this is what exposure to Critical Legal Studies in law school does to a lawyer….)