Clapper v. Amnesty International USA

Neither the possibility of future injury nor the choice to spend money to minimize the possibility of future injury is sufficient to “satisfy the well-established requirement that threatened injury must be ‘certainly impending.’”

Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA) in order to "authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes.” In 2008 Congress amended the Act and added §702 (codified at 50 U.S.C. §1881a) which allows government electronic surveillance to target “non-United States persons who are believed to be outside the United States in order to obtain foreign intelligence information.”

Respondents, who “engage in sensitive international communications with individuals who they believe are likely targets of surveillance under §1881a” challenged §1881a’s constitutionality. Respondents alleged that there was an “objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future” but the District Court found that they lacked standing because fear of injury does not meet the “injury in fact” requirement. The Court of Appeals for the Second Circuit found that Respondents had standing because they had undertaken “costly and burdensome measures” in an effort to protect the confidentiality of their communications and that an “expenditure of funds” was an injury in fact.

In a 5-4 decision, the Supreme Court ruled that Respondents lacked standing because their theory of future injury did not meet the “certainly impending” requirement established in Whitmore v. Arkansas, 495 U.S. 149 (1990), and that even if they could prove that the threatened injury was “certainly impending” it would be speculative to say that §1881a was the reason for that future injury. Furthermore, the Court held that the present injury claimed was for "expenditures based on hypothetical future harm" that were anticipatory of a “non-imminent harm.”