By: Jenn Ebling
The article references a Supreme Court opinion, which can be accessed here: http://www.supremecourt.gov/opinions/12pdf/11-1025_ihdj.pdf
On February 26, 2013, the Supreme Court ruled in Clapper v. Amnesty International USA that American citizens who cannot prove they were subject to government surveillance because the government refuses to divulge details about its surveillance practices lack standing to challenge the constitutionality of the Foreign Intelligence Surveillance Act (FISA).
In 2009, the district court of the Southern District of New York rejected the plaintiffs’ claim that the 2008 amendments to FISA had authorized broad surveillance in violation of their constitutional rights on the grounds that the plaintiffs lacked standing because they could not show a particularized or concrete injury. In 2011, the 2nd U.S. Circuit Court of Appeals overturned the district court’s opinion and concluded that plaintiffs had standing based on a “reasonable fear of future injury.” The Supreme Court rejected the circuit court’s rationale on the basis that such fear of future injury is too speculative to support standing.
Though the court was careful to note that a plaintiff could establish standing to challenge the law by proving she had been the subject of surveillance, it is difficult to imagine how a plaintiff could do so in practice given the government’s secrecy about its surveillance practices.