Clapper v. Amnesty International USA

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Clapper v. Amnesty International USA
Case Title Clapper v. Amnesty International, 568 U.S. 398 (2013)
Date 2013/02/26
Appealed Yes
Personal Information
Link to Ruling
Country/Jurisdiction United States
State or Province
Regulatory Bodies
Decided Yes
Arbitrator US Supreme Court
Related Laws Foreign Intelligence Surveillance Act of 1978, FISA Amendments Act of 2008, Constitution - Amendment III, Constitution - Amendment I, Constitution - Amendment IV

Short Summary

Clapper v. Amnesty International, 568 U.S. 398 (2013) is a United States Supreme Court case in which the Court held that Amnesty International USA and others lacked standing to challenge 50 U.S.C. § 1881a (also known as Section 702) of the Foreign Intelligence Surveillance Act as amended by the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008.


The issue was whether respondents have Article III standing to seek prospective relief under the FISA. Several groups, including attorneys, journalists, and human rights organizations, brought a facial challenge to a provision of the Foreign Intelligence Surveillance Act (FISA). Clapper was a challenge to the FISA Amendments Act of 2008, which empowers the Foreign Intelligence Surveillance Court to authorize surveillance without a showing of probable cause that the target of the surveillance is an agent of a foreign power. The government need only demonstrate that the surveillance targets “persons reasonably believed to be located outside the United States” and seeks “foreign intelligence information.” The plaintiffs alleged that they sustained greater inconvenience and higher costs because of the need to conduct secure communications with parties overseas whom the U.S. government had probably targeted for surveillance. The challenge was brought against James Clapper, Director of National Intelligence. The provision creates new procedures for authorizing government electronic surveillance of non-U.S. persons outside the U.S. for foreign intelligence purposes. The groups argue that the procedures violate the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers. The new provisions would force these groups to take costly measures to ensure the confidentiality of their international communications. The District Court for the Southern District of New York granted summary judgment for the government, holding that the groups did not have standing to bring their challenge. The groups only had an abstract subjective fear of being monitored and provided no proof that they were subject to the FISA. The U.S. Court of Appeals for the Second Circuit reversed, holding that the groups had standing based on a reasonable fear of injury and costs incurred to avoid that injury.


Justice Samuel A. Alito, writing for a 5-4 majority, reversed and remanded for further proceedings. The Court held that the respondents did not have standing under Article III of the U.S. Constitution because no injury occurred. Claiming a reasonable likelihood that their communications would be intercepted under FISA is not enough to show future injury for standing purposes. The Court also refused to acknowledge a present injury stemming from the respondents' choice to take costly measures to protect their confidential communications.

Justice Stephen G. Breyer dissented, arguing that the future harm to respondents is not speculative and therefore should be sufficient to establish standing. Since there is a high probability that the government will intercept at least some of the respondents' communications, the respondents should have standing to bring the suit. Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.