This week, in a 5-4 decision in Clapper et al. v. Amnesty International USA et al., the United States Supreme Court rejected two theories of Article III standing presented by a group of attorneys, human rights, labor, legal, and media organizations who sought a declaration that surveillance under section 1881a of the Foreign Intelligence Surveillance Act (“FISA”) is unconstitutional as well as an injunction against section 1881a-authorized surveillance.
These respondents argued first that, because their work requires them to engage in sensitive and/or privileged communications with individuals located abroad who are likely targets of surveillance, there was an objectively reasonable likelihood that their communications would be acquired under section 1881a at some point in the future, thus causing them injury. (Section 1881a, which was added by the FISA Amendments Act of 2008, authorizes, under certain circumstances, the government surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States). Second, the respondents maintained that the risk of surveillance under section 1881a is so substantial that they had been forced to take costly and burdensome measures to protect the confidentiality of their communications that constitute present injury and are fairly traceable to section 1881a.
The Supreme Court rejected each of these arguments holding (1) that respondents’ “highly attenuated chain of possibilities” and theory of future injury was too speculative to satisfy the well-established Article III standing requirement that threatened injury be “certainly impending” and, moreover, that they could not establish that the injury was fairly traceable to section 1881a; and (2) that the respondents “cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending.”
In a dissent written by Justice Breyer, four justices took the position that the harm claimed by the respondents was not speculative, indeed, that “it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen.”
Beyond the immediate implications as to the ability to challenge the U.S. government’s international surveillance powers, this ruling may impact plaintiffs’ ability to establish standing in privacy and data breach litigation that is predicated on theoretical future harms and the measures consumers take to prevent those harms from occurring. For example, the Supreme Court’s ruling may undermine decisions such as the Ninth Circuit’s holding in Starbucks, which found standing following a data breach based on an increased risk of identity theft. As we have written about here and here, courts typically have been reluctant to find standing based on speculative injuries in privacy litigation relating to data use and disclosure practices outside of the data breach context.