## Facts

- Congress enacted FISA §702 (50 U.S.C. §1881a), authorizing the Attorney General and Director of National Intelligence, with FISC oversight, to target non-U.S. persons reasonably believed to be located abroad to acquire foreign intelligence information.
- Attorneys, journalists, and human-rights organizations regularly communicated with individuals abroad whom they believed could be surveillance targets under §702.
- The plaintiffs sought declaratory and injunctive relief, alleging that §702 surveillance would likely intercept their communications and that the statute violated the First and Fourth Amendments and separation-of-powers principles.
- To reduce the risk of interception and protect confidentiality, plaintiffs undertook costly measures (e.g., adopting secure communications practices and traveling for in-person meetings instead of using phone or email).
- The district court granted summary judgment for the government, concluding plaintiffs lacked Article III standing because their asserted fear of interception was speculative.
- The court of appeals reversed, finding standing based on an “objectively reasonable likelihood” of interception and present burdens from the plaintiffs’ protective measures.

## Issues

1. Whether plaintiffs had Article III standing to seek prospective relief against FISA §702 based on an asserted likelihood that their communications would be intercepted in the future.
2. Whether plaintiffs could establish injury in fact through present costs incurred to avoid a feared future surveillance harm.

## Decision

- The Supreme Court reversed (5–4) and remanded, holding that plaintiffs lacked Article III standing.
- The Court ruled the alleged future injury was not “certainly impending” because it depended on a speculative chain of contingencies, including discretionary decisions by independent actors and institutions.
- The Court rejected the court of appeals’ “objectively reasonable likelihood” standard as inconsistent with the required imminence for threatened injury.
- The Court held plaintiffs could not create standing by incurring costs in response to fears of a hypothetical future harm that was not certainly impending.
- The Court also noted causation concerns because any future interception might occur under surveillance authorities other than §702, weakening traceability to the challenged statute.

## Legal Principles

- Article III standing requires (1) an injury in fact that is concrete, particularized, and actual or imminent; (2) traceability to the challenged conduct; and (3) redressability.
- “Allegations of possible future injury are not sufficient”; threatened injury must be “certainly impending” to qualify as injury in fact.
- Standing is not established by a plaintiff’s self-imposed expenditures taken to avoid a non-imminent, speculative risk.
- Courts generally will not accept standing theories that depend on predicting how independent decisionmakers will exercise discretion.
- Standing requirements apply in national-security and foreign-intelligence cases; secrecy does not relax Article III limits.

## Conclusion

The Court held that a pre-enforcement challenge to FISA §702 failed for lack of standing where plaintiffs could not show a certainly impending interception of their communications and could not rely on precautionary costs undertaken to mitigate a speculative risk.


Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)