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
- 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.
- 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.