Nature of the Case
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Facts
Under 50 U.S.C. §1881a, the Attorney General and the Director of National Intelligence may acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States. All they need do is obtain the Foreign Intelligence Surveillance Court's (FISC) approval. Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Ps (attorneys and human rights, labor, legal, and media organizations) are United States persons who claim that they engage in sensitive international communications with individuals who they believe are likely targets of §1881a surveillance. Ps sought a declaration that §1881a is unconstitutional, as well as an injunction against §1881a-authorized surveillance. Ps assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future. Unlike traditional FISA, §1881a does not require the government, to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur. Surveillance under §1881a may not be intentionally targeted at any person known to be in the United States or any U.S. person reasonably believed to be located abroad. §§1881a(b)(1)-(3). Acquisitions under §1881a must comport with the Fourth Amendment. Surveillance under §1881a is subject to congressional oversight and several types of Executive Branch review. Minimization procedures must adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U.S. persons, as appropriate. The Foreign Intelligence Surveillance Court's role includes determining whether the Government's certification contains the required elements and it assesses whether the targeting procedures are “reasonably designed” (1) to “ensure that an acquisition . . . is limited to targeting persons reasonably believed to be located outside the United States” and (2) to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known . . . to be located in the United States.” Ps claim injury in that §1881a compromises their ability to locate witnesses, cultivate sources, obtain information, and communicate confidential information to their clients. Ps claim that threat of surveillance will compel them to travel abroad in order to have in-person conversations. In addition, Ps declare that they have undertaken “costly and burdensome measures” to protect the confidentiality of sensitive communications. The District Court held that respondents do not have standing. A panel of the Second Circuit reversed. Ps had standing due to the objectively reasonable likelihood that their communications will be intercepted at some time in the future. The court also held that Ps established that they are suffering “present injuries in fact--economic and professional harms--stemming from a reasonable fear of future harmful government conduct.” The Supreme Court granted certiorari.
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