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Supreme Court rejects FISA Amendments Act challenge

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The Supreme Court dismissed a challenge to the constitutionality of warrantless international communications surveillance in a Feb 26 opinion ruling that plaintiffs lack standing. 

In a 5-to-4 decision (.pdf) authored by Samuel Alito and joined by other conservative justices, the court majority overturned in Amnesty et al v. Clapper a Second District Court of Appeals opinion (.pdf) that plaintiffs have standing since they have "good reason to believe that their communications, in particular, will fall within the scope of the broad surveillance" permitted by the FISA Amendments Act.

The act, which gained a 5 year extension through 2017 in December following President Obama's approval of a reauthorization bill, permits the intelligence community to collect communications involving non-U.S. persons reasonably believed to be located abroad without specifying to the Foreign Intelligence Surveillance Court specific targets or facilities through a certification submitted by the director of national intelligence and attorney general that the purpose of the surveillance is collection of foreign intelligence information.

Opposition to the act stems in large measure from the extent to which Americans' communications get swept up in the process. The near impossibility of knowing in an unclassified setting whether a particular American's communications have been affected by the law has made challenging it difficult, especially since the law is structured around the targeting of foreigners.

"Respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired," Alito wrote of the plaintiffs, which included human rights researchers, journalists and lawyers. In addition, even if they could demonstrate that the intelligence community targets their foreign contacts, the plaintiffs can't show that their communications would be surveilled under the FISA Amendments Act rather than another authority, Alito said. "The Government has numerous other methods of conducting surveillance, none of which is challenged here," he added.

Additional uncertainty also erodes plaintiffs' standing, too, Alito said, such as whether the Foreign Intelligence Surveillance Court would permit the surveillance, whether if it did the intelligence community could capture the communications of those foreign contacts and whether, even if it did, the plaintiffs' communications would be likewise captured.

Alito also dismissed the argument that the plaintiffs have already been injured by the law due to the countermeasures they've undertaken due to belief that their contacts are under FISA Amendments Act surveillance. "Respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending," he wrote.

The ruling, Alito asserted, insulates the act from another challenge, since were the federal government to use information collected under its authority in a court case, the person affected could mount a case--a statement greeted with skepticism by the American Civil Liberties Union attorney who argued the case for the plaintiffs. "Justice Alito's opinion for the court seems to be based on the theory that the FISA Court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come," said ACLU Deputy Legal Director Jameel Jaffer in a statement.

In a minority opinion written by Justice Stephen Breyer joined by all three other dissenters, Breyer said he is convinced that there exists a "very high likelihood" that the government will use the FISA Amendments Act to intercept communications involving the plaintiffs' foreign contacts, writing that the court has "often found standing where the occurrence of the relevant injury was far less certain than here."

For more:
- download the majority and minority opinion (.pdf)
- go to the Supreme Court webpage for Amnesty et al v. Clapper

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