Clapper v. Amnesty Int'l USA

Whether a belief that legislation might result in future injury coupled with the funds expended in an effort to prevent that future injury is sufficient to meet the injury in fact requirement for Article III standing.

Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA) in order to regulate governmental use of communications "for surveillance of 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 challenged the constitutionality of § 702, and 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 due to the “costly and burdensome measures” undertaken in an effort to protect the confidentiality of their communications and that "expenditure of funds" is an injury in fact and it is not unreasonable for the respondents to incur these costs because the fear is not "fanciful, paranoid, or otherwise unreasonable."

Petitioners argue that Respondents lack standing because they “proffered no evidence” that the US government would intercept their international communications through § 702-authorized measures and failed to show that the court was capable of providing relief.