AMNESTY INTERNATIONAL USA, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, the Nation Magazine, PEN American Center, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Plaintiffs-Appellants, v. James R. CLAPPER, Jr., in His Official Capacity as Director of National Intelligence,* Keith B. Alexander, in His Official Capacity as Director of the National Security Agency and Chief of the Central Security Service, Eric H. Holder, Jr., in His Official Capacity as Attorney General of the United States, Defendants-Appellees [2011]

638 F.3d 118 · Court of Appeals for the Second Circuit · United States

International Criminal Lawinternational-criminal-lawInternational Criminal LawStandingFourth AmendmentForeign Intelligence Surveillance Act

Issue

Do plaintiffs have standing to challenge the constitutionality of Section 702 of FISA based on a fear that their communications with foreign targets will be intercepted?

Held

The Second Circuit held that plaintiffs lacked standing because their alleged injuries were speculative; they could not show that the government had intercepted or would imminently intercept their communications under Section 702.

Exam use

Summary

Do plaintiffs have standing to challenge the constitutionality of Section 702 of FISA based on a fear that their communications with foreign targets will be intercepted?

Facts

Issue

Do plaintiffs have standing to challenge the constitutionality of Section 702 of FISA based on a fear that their communications with foreign targets will be intercepted?

Held

The Second Circuit held that plaintiffs lacked standing because their alleged injuries were speculative; they could not show that the government had intercepted or would imminently intercept their communications under Section 702.

Ratio Decidendi

To establish standing, a plaintiff must show an injury in fact that is concrete and particularized, and actual or imminent, not conjectural or hypothetical. Fear of surveillance alone, without evidence that the plaintiff has been or will be targeted, is insufficient.

Reasoning

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Reference to AMNESTY INTERNATIONAL USA, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, the Nation Magazine, PEN American Center, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Plaintiffs-Appellants, v. James R. CLAPPER, Jr., in His Official Capacity as Director of National Intelligence,* Keith B. Alexander, in His Official Capacity as Director of the National Security Agency and Chief of the Central Security Service, Eric H. Holder, Jr., in His Official Capacity as Attorney General of the United States, Defendants-Appellees (638 F.3d 118) strengthens a International Criminal Law answer because the case reflects the principle that To establish standing, a plaintiff must show an injury in fact that is concrete and particularized, and actual or imminent, not conjectural or hypothetical. Fear of surveillance alone, without evidence that the plaintiff has been or will be targeted, is insufficient. Applied to a problem question, the case should be used after identifying the issue as Do plaintiffs have standing to challenge the constitutionality of Section 702 of FISA based on a fear that their communications with foreign targets will be intercepted? The stronger essay move is to connect the material facts to the court's holding, then explain whether the present facts support the same conclusion or justify distinguishing the authority.

Underlying Concepts

  • Standing
  • Fourth Amendment
  • Foreign Intelligence Surveillance Act

Significance

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