Standing in Surveillance Case Questioned by Alito, Roberts, Scalia
Conservative Supreme Court justices questioned Amnesty International’s claim that it had standing to sue the federal government because the nonprofit and a broad group of lawyers, journalists and others faced a “substantial risk” of privacy invasion when their conversations with people abroad were monitored by the U.S. government. Those were among the questions Justices Antonin Scalia and Samuel Alito and Chief Justice John Roberts asked at oral argument Monday in Clapper v. Amnesty International USA. The case is over whether a broad group of lawyers, journalists and organizations suffered sufficient injury to establish standing by being compelled to take precautionary measures because they had reason to believe communications with people outside America were being monitored.
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American citizens should be able to sue the government in federal court over international communications surveillance laws, ACLU attorney Jameel Jaffer argued for Amnesty International. The law at the center of the case is the FISA Amendments Act (FAA). The FAA expands the powers granted to the federal government in the Foreign Intelligence Surveillance Act (FISA) to target individuals abroad and monitor their communications, including those with American citizens, such as lawyers or journalists working with suspected terrorists. The FAA could make people who communicate with potential surveillance targets abroad wary, Justice Elena Kagan said. They will ask themselves if they're likely to be overheard and what they can do to prevent it, she said: “This statute makes them think about these questions in an entirely different way.” The law could encourage individuals to abandon the types of communication they usually use, such as email, she said.
The respondents face “a substantial risk that their communications will be acquired under the act,” said Jaffer. “Our plaintiffs have reason to believe that their communications will be monitored under the statute” because they communicate with potential surveillance targets abroad, he said. Before the FAA was enacted, American citizens would only need to take precautions when communicating with people who were known to be suspected terrorists and FISA targets, he said, but the FAA erased the probable cause requirement, expanding the government’s surveillance powers. To avoid surveillance and maintain confidentiality -- often necessary for communication between lawyers and their clients or journalists and their sources -- American citizens adopt costly and burdensome precautions, Jaffer said, such as traveling to speak with a foreign citizen, rather than communicating via email or phone. Other than traveling to communicate in person, Justice Ruth Bader Ginsburg asked, what precautions are the respondents taking? Most other precautions have “no dollar cost, but there is a professional cost,” Jaffer said.
Justice Stephen Breyer asked of such monitoring: “If they aren’t wiretapping the people described here, who are they wiretapping?” If the government has been granted that authority, it’s likely the government is exercising it, said Justice Anthony Kennedy: “It’s hard for me to think that the government isn’t using all of its powers … to protect this country."
"Our standard is certainly impending” risk, as opposed to the substantial risk Jaffer described, Roberts said. “I don’t think the courts settled on ‘certainly impending'” as the standard, Jaffer responded. The substantial risk of compromised confidentiality had “effectively compelled” those affected to take the precautions they did, he said. Alito and Scalia asked if, by taking preventative measures to a risk that was less than certainly impending, respondents took on injury to establish standing that would not have existed otherwise. Precautions “would have to be a reasonable reaction to the risk,” Jaffer said. “If there’s a distance between [the certainly impending standard and the substantial future risk standard], it’s a pretty narrow distance."
To establish standing, damage must have already occurred or be “certainly impending,” said Solicitor General Donald Verrilli, arguing on behalf of Director of National Intelligence James Clapper. The FAA only expands the government’s authority to conduct surveillance of international communications, Verrilli said, and individuals can only speculate if their communications are being monitored. That the respondents took potentially costly preventative measures to evade possible surveillance “doesn’t change the injury,” he said. “It’s still speculative."
Under the FAA, the surveillance of American citizens is “incidental,” said Roberts, because the law is aimed at gathering foreign intelligence information by targeting communications from individuals in other countries. That may be the law’s aim, Jaffer said, but the surveillance of communications from American citizens to individuals abroad is allowed by the law and not incidental. “You're right that our communications are not being targeted,” he said. “But they are being monitored.”