Clapper v. Amnesty International USA: Allowing the FISA Amendments Act of 2008 to Turn “Incidentally" into “Certainly”

Liz Clark Rinehart

In February 2013, the Supreme Court of the United States decided Clapper v. Amnesty International USA, which considered whether United States persons who frequently interacted with foreign nationals living abroad had standing to challenge the constitutionality of 50 U.S.C. Section 1881a, a controversial part of the Foreign Intelligence Surveillance Act (“FISA”). Added through Section 702 of the FISA Amendments Act of 2008, Section 1881a expanded the scope of FISA surveillance the Foreign Intelligence Surveillance Court (“FISC”) could authorize while simultaneously reducing judicial power to oversee and supervise the surveillance. In Amnesty International, the plaintiffs claimed the government was highly likely to intercept their conversations using Section 1881a surveillance due to their numerous international contacts. The Court held that the plaintiffs lacked standing, however, because they could not show the government had intercepted their conversations or that government interception was “certainly impending.” Because the plaintiffs could not show a certainly impending injury through government interception, the Court also denied standing based on the costs the plaintiffs incurred to prevent the interception of their communications.