Supreme Court Granted Cert in Clapper v. Amnesty International

Published On May 21, 2012 | By Jake Sommer | Privacy
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Today, The Supreme Court agreed to review the Second Circuit’s decision which found that plaintiffs, a group of attorneys, journalists, legal, media, and human rights organizations, had standing to challenge the FISA Amendments Act of 2008 (the “FAA”), 50 U.S.C. 1881a. The issue before the Supreme Court is whether the plaintiffs lack Article III standing to prospectively challenge the FAA prior to being the target of any surveillance authorized under the statute.

The Question Presented for Review by the Petitioners was:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)—referred to here as Section 1881a—allows the Attorney General and Director of National Intelligence to authorize jointly the “targeting of [non-United States] persons reasonably believed to be located outside the United States” to acquire “foreign intelligence information,” normally with the Foreign Intelligence Surveillance Court’s prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Respondents are United States persons who may not be targeted for surveillance under Section 1881a. Respondents filed this action on the day that Section 1881a was enacted, seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a. The question presented is:

Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using Section 1881aauthorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.

The Question Presented by Respondents in Opposition to Cert was:

Whether the court of appeals correctly held that plaintiffs–respondents have standing to challenge certain provisions of the FISA Amendments Act of 2008 based on their showing, through uncontroverted affidavits, that: (i) they have already suffered specific present objective injuries that are fairly traceable to those provisions, and (ii) they have an actual and well-founded fear that their communications will be monitored under those provisions in the future.

About The Author

Jacob Sommer's practice focuses on legal issues related to Internet-based services and social networking, with a focus on protecting client's rights in litigation or government investigations involving the Copyright Act, Lanham Act, Digital Millennium Copyright Act ("DMCA"), Electronic Communications Privacy Act (“ECPA”), the Wiretap and Communication Acts, CAN-SPAM, FISA and federal and state laws governing Internet gambling. He also helps social networks, search engines, e-mail providers, ISPs and other clients fulfill their compliance obligations pertaining to the discovery and disclosure of customer and subscriber information.

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