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.

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Photo of David Fagan David Fagan

David Fagan co-chairs the firm’s top ranked practices on cross-border investment and national security matters, including reviews conducted by the Committee on Foreign Investment in the United States (CFIUS), and data privacy and cybersecurity.

Mr. Fagan has been recognized by Chambers USA and…

David Fagan co-chairs the firm’s top ranked practices on cross-border investment and national security matters, including reviews conducted by the Committee on Foreign Investment in the United States (CFIUS), and data privacy and cybersecurity.

Mr. Fagan has been recognized by Chambers USA and Chambers Global for his leading expertise on bet-the-company CFIUS matters and has received multiple accolades for his work in this area, including twice being named Dealmaker of the Year by The American Lawyer for 2016 and 2019. Clients laud him for providing “excellent advice,” “know[ing] everything there is to know about CFIUS” and being “extremely well regarded” by key regulators. (Chambers USA)

In the foreign investment and national security area, Mr. Fagan is known for his work on matters requiring the mitigation of foreign ownership, control or influence (FOCI) under applicable national industrial security regulations, including for many of the world’s leading aerospace and defense firms, private equity firms, and sovereign investors, as well as telecommunications transactions that undergo a public safety, law enforcement, and national security review by the group of agencies known as “Team Telecom.”

Mr. Fagan’s practice covers representations of both foreign and domestic companies before CFIUS and related national security regulators. The representations encompass matters in which the principal assets are in the United States, as well as those in which there is a smaller U.S. nexus but where solving for the CFIUS issues – including through proactive mitigation and carve-outs – is a critical path for the transaction. Mr. Fagan is also routinely called upon to rescue transactions that have run into challenges in CFIUS, and to negotiate solutions with the U.S. government that protect national security interests, while preserving shareholder and U.S. business interests.

Reflecting his work on U.S.-China investment issues and his experience on complex U.S. national security matters intersecting with China, Mr. Fagan is regularly engaged by multi-national companies, including the world’s leading technology companies, to advise on strategic legal projects, including supply chain matters, related to their positioning in the emerging competition between the U.S. and China. Mr. Fagan also has testified before a congressional commission regarding U.S. national security, trade, and investment matters with China.

In the privacy and data security area, Mr. Fagan has counseled companies on responding to some of the most sophisticated documented cyber-based attacks on their networks and information, including the largest documented infrastructure attacks, as well as data security incidents involving millions of affected consumers. He has been engaged by boards of directors of Fortune 500 companies to counsel them on cyber risk and to lead investigations into cyber attacks, and he has responded to investigations and enforcement actions from the Federal Trade Commission (FTC) and state attorneys general. Mr. Fagan has also helped clients respond to ransomware attacks, insider theft, vendor breaches, hacktivists, state-sponsored attacks affecting personal data and trade secrets, and criminal organization attacks directed at stealing personal data, among other matters.

In addition, he routinely counsels clients on preparing for and responding to cyber-based attacks on their networks and information, enhancing their supply chain and product development practices, assessing their security controls and practices for the protection of data, developing and implementing information security programs, and complying with federal and state regulatory requirements. He also frequently advises clients on transactional matters involving the transfer of personal data.