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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Supreme Court Hears Oral Argument on Standing Issue in Challenge to FISA Amendments Act of 2008

Posted in International, United States

By Alex Berengaut

On Monday, October 29, the Supreme Court heard oral argument in Clapper v. Amnesty International (No. 11-1025), a challenge brought by the American Civil Liberties Union (ACLU) against the FISA Amendments Act (FAA) of 2008.  The FAA amended the Foreign Intelligence Surveillance Act (FISA) of 1978 by authorizing new procedures for electronic surveillance targeting non-United States persons located outside the United States.  The suit was brought on behalf of attorneys, journalists, and labor, legal, media, and human rights organizations who feared that under the FAA, the government would intercept their international communications without an individualized warrant and in violation of the Fourth Amendment.  The Plaintiffs based this argument on the fact that the FAA, unlike FISA, permits the government to apply for mass surveillance authorizations pursuant to certified “targeting procedures.” 

The issue before the Court on Monday was not the merits of Plaintiffs’ claim.  Rather, the question was whether the Plaintiffs lacked standing to seek relief because, as the Court put it, “they proffered no evidence that the United States would imminently acquire their international communications” using the FAA.  In March 2011, a panel of the Second Circuit concluded that Plaintiffs did have standing to challenge the law, and in September 2011, the full Second Circuit declined to revisit the case en banc in an evenly divided 6-6 vote.

During Monday’s oral argument, several Justices reportedly seemed sympathetic to the argument that Plaintiffs did have standing because they incurred costs (such as traveling internationally for face-to-face meetings) based on a fear that their international communications would be monitored under the FAA.  Justice Sotomayor, in particular, appeared concerned that if the Court rejected Plaintiffs’ standing argument, then no one would have standing to challenge the law.  Solicitor General Donald B. Verrilli Jr., who appeared for the government, sought to address this concern by explaining that there might be standing if the government attempted to introduce FAA intercepts in a criminal proceeding.  As Justice Ginsburg pointed out, though, this scenario is relatively unlikely because the FAA is designed for intelligence gathering, not law enforcement.