568 U.S. 398 (2013)
In 1978, Congress enacted the Foreign Intelligence Surveillance Act to authorize and regulate governmental electronic surveillance of communications for foreign intelligence purposes.1 After the September 11 attacks, President George W. Bush authorized the National Security Agency to conduct warrantless wiretapping of telephone and email communications where one participant was reasonably believed to be a member or agent of al Qaeda or an affiliated terrorist organization.2 In January 2007, the Foreign Intelligence Surveillance Court issued orders.3 Those orders authorized the Government to target international communications into or out of the United States where there was probable cause to believe that one participant was a member or agent of al Qaeda or an associated terrorist organization.4 After a FISC judge narrowed the authorization, the Executive asked Congress to amend FISA.5
In 2008, Congress enacted the FISA Amendments Act, which added Section 702.6 That section permits the Attorney General and the Director of National Intelligence to jointly authorize the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.7 The authorization lasts for up to one year and requires FISC approval of targeting and minimization procedures.8 Section 702 does not require a showing of probable cause that the target is a foreign power or agent of a foreign power.9 It also does not require specification of the particular facilities or places at which surveillance will occur.10
Respondents are attorneys and human rights, labor, legal, and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with colleagues, clients, sources, and other individuals located abroad.11 This includes people the Government believes or believed to be associated with terrorist organizations, people located in geographic areas that are a special focus of the Government's counterterrorism or diplomatic efforts, and activists who oppose governments supported by the United States.12 Respondents allege that some of the individuals with whom they communicate are likely targets of surveillance under Section 702.13
On the day the FISA Amendments Act was enacted, respondents filed this action in the Southern District of New York.14 They sought a declaration that Section 702 is unconstitutional on its face and a permanent injunction against its use.15 Respondents asserted two theories of Article III standing.16 First, there is an objectively reasonable likelihood their communications will be acquired under Section 702 at some point in the future.17 Second, the risk of such surveillance has already forced them to take costly and burdensome measures to protect the confidentiality of their international communications.18
After both sides moved for summary judgment, the district court held that respondents lack standing.19 The Second Circuit reversed.20 It concluded that respondents had standing both because of the objectively reasonable likelihood of future interception and because they were already suffering present economic and professional harms stemming from a reasonable fear of future harmful government conduct.21 The Second Circuit denied rehearing en banc by an equally divided vote.22 The Supreme Court granted certiorari in 2012 to address the standing issue.23
Whether respondents have Article III standing to challenge Section 702 of the Foreign Intelligence Surveillance Act on the ground that there is an objectively reasonable likelihood their communications will be acquired under that section in the future?24
To establish Article III standing, plaintiffs must demonstrate an injury in fact that is concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.25 Threatened injury must be imminent, and allegations of possible future injury are not sufficient.26
No. The established facts show that respondents are attorneys and organizations whose work requires communications with individuals abroad who may be targets of surveillance under Section 702.27 Respondents' theory rests on a highly speculative chain of possibilities that the Government will target their foreign contacts under Section 702 rather than other authorities, obtain FISC approval, succeed in interception, and incidentally acquire respondents' own communications.28 The facts establish no evidence that respondents' communications have been monitored or that the Government has sought FISC approval for surveillance of their contacts, rendering the asserted future injury too attenuated to satisfy the imminent injury requirement.29
Respondents lack Article III standing to challenge Section 702 based on the likelihood of future acquisition of their communications.30
Related opinions on this issue
Justice Breyer dissents on this issue, contending that the likelihood of interception is very high rather than speculative.31 He relies on the similarity of the communications to those authorized by Section 702, the strong motives of both the plaintiffs to engage in such discussions and the Government to monitor them, the Government's past interception of similar communications involving one respondent's client, and the Government's technological capacity to conduct the surveillance.32 Breyer concludes that commonsense inferences establish a probability sufficient for standing under precedents recognizing realistic dangers and substantial risks.33
Whether respondents have Article III standing to challenge Section 702 because the risk of surveillance under that section has already caused them to incur present costs and burdens to protect the confidentiality of their international communications?34
No. The established facts indicate that respondents have undertaken costly and burdensome measures to protect the confidentiality of their communications due to the perceived risk of surveillance under Section 702.37 Because the threatened future injury is not imminent, these self-inflicted expenditures do not constitute injury fairly traceable to the statute.38 The facts further show that respondents had similar incentives to take protective measures even before Section 702 was enacted, confirming that the costs arise from subjective fear rather than imminent government action under the new provision.39
Respondents lack Article III standing to challenge Section 702 based on present costs incurred to avoid potential surveillance.40