What do human rights advocates have in common with Barnes & Noble credit and debit card customers?
There’s no punchline response to that question (or at least none that I could think of). The answer instead lies in the U.S. Constitution’s strictures on who may bring a claim in federal court – and in the collateral consequences of the U.S. Supreme Court’s latest interpretation of standing, in a 2013 case called Clapper v. Amnesty International.
As you’ve probably guessed, that’s where the human rights advocates come in. After Congress passed amendments to the Foreign Intelligence Surveillance Act in 2008, the American Civil Liberties Union and outside lawyers from Proskauer Rose sued James Clapper, the Director of National Intelligence, on behalf of a group of U.S. lawyers, journalists and human rights groups who alleged that the FISA amendments violated their First and Fourth Amendment rights. The new law made it easier for the government to obtain permission to wiretap intelligence targets outside of the United States. The plaintiffs said their work required them to engage in international phone and Internet communications with likely targets of the stepped-up surveillance, and that the FISA amendments would permit the National Security Agency to access their communications illegally. They sought a declaration that the sweeping, warrantless wiretapping permitted under the new law was a breach of their constitutional free speech and privacy rights.
A threshold issue in their case was whether they satisfied the requirements for bringing a federal-court suit under Article III of the Constitution. U.S. judges, as you know, do not issue strictly advisory rulings but only have jurisdiction over actual controversies. In the Amnesty case, U.S. District Judge John Koeltl of Manhattan said that the human rights groups did not have standing to sue because their injury was only theoretical: They couldn’t show their communications had been monitored or that such monitoring had even been authorized. The 2nd Circuit Court of Appeals reversed Koeltl, holding that the plaintiffs had shown a “realistic danger” that their phone calls or emails would be intercepted. The appeals court also found standing based on the expenses the groups had incurred to preserve the confidentiality of their communications.
The Supreme Court found both of the 2nd Circuit’s rationales to be inadequate. In an opinion in February that clarified the court’s interpretation of standing, Justice Samuel Alito said that you can’t sue based on speculation about what might occur. Standing depends on an actual injury or “certainly impending” injury, Alito wrote, and cannot be satisfied through “a highly attenuated chain of possibilities.” Alito also said that plaintiffs can’t establish standing by spending money to ward off feared injury. “If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a non-paranoid fear,” he wrote. “(Plaintiffs) cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.”