Foreign Surveillance and the Future of Standing to Sue Post- Clapper

by Sabrina I. Pacifici on July 14, 2013

CRS – Foreign Surveillance and the Future of Standing to Sue Post-Clapper – Andrew Nolan, Legislative Attorney, July 10, 2013

“Recent news accounts (and government responses to those news accounts) have indicated that the government is reportedly engaged in a surveillance program that gathers vast amounts of data, including records regarding the phone calls, emails, and Internet usage of millions of individuals. The disclosures to the media reportedly suggest that specific telecommunication companies have been required to disclose certain data to the government as part of the intelligence community’s surveillance efforts. The recent controversy over the reports of government targeting efforts comes months after the Supreme Court ruled in a case called Clapper v. Amnesty International. In Clapper, the Court dismissed a facial constitutional challenge to section 702 of the Foreign Intelligence Surveillance Act on constitutional standing grounds. Specifically, the Clapper
court found that the litigants, a group of attorneys and human rights activists who argued that their communications with clients could be the target of foreign intelligence surveillance, could not demonstrate they would suffer a future injury that was “certainly impending,” the requirement the majority of the Court found to be necessary to establish constitutional standing when asking a court to prevent a future injury.”

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