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Wednesday, July 10, 2013

Foreign Surveillance and the Future of Standing to Sue Post-Clapper

Andrew Nolan
Legislative Attorney

Recent news accounts (and government responses to those news accounts) have indicated that the government is reportedly engaged in a surveillance program that gathers vast amounts of data, including records regarding the phone calls, emails, and Internet usage of millions of individuals. The disclosures to the media reportedly suggest that specific telecommunication companies have been required to disclose certain data to the government as part of the intelligence community’s surveillance efforts.

The recent controversy over the reports of government targeting efforts comes months after the Supreme Court ruled in a case called Clapper v. Amnesty International. In Clapper, the Court dismissed a facial constitutional challenge to section 702 of the Foreign Intelligence Surveillance Act on constitutional standing grounds. Specifically, the Clapper court found that the litigants, a group of attorneys and human rights activists who argued that their communications with clients could be the target of foreign intelligence surveillance, could not demonstrate they would suffer a future injury that was “certainly impending,” the requirement the majority of the Court found to be necessary to establish constitutional standing when asking a court to prevent a future injury.

Notwithstanding the Clapper decision, in light of the recent revelations about the government’s intelligence gathering methods, several lawsuits have been filed by individuals who are customers of the companies allegedly subject to court orders requiring the disclosure of data to the government. The litigants in these newly filed lawsuits would appear to have a stronger argument for how they have been injured than the plaintiffs in Clapper did. Notably, unlike the Clapper plaintiffs, the litigants in these new lawsuits have evidence that the government is actually using its authority to gather data that is pertinent to the plaintiffs. However, the plaintiffs in these lawsuits may still have significant difficulties in establishing standing, as they have arguably not alleged that they have been specifically targeted by the government or injured in any concrete and particularized way by the government’s conduct. Moreover, gathering evidence to prove an injury will be difficult because of evidentiary privileges protecting the government information. As a consequence, litigation challenging the government surveillance programs that are the topic of recent media accounts may have the same difficulties found in the Clapper litigation.

Date of Report: June 14, 2013
Number of Pages: 15
Order Number: R43107
Price: $29.95

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