U.S. Sup. Ct.
11-1025
Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U. S. C. §1881a, added by the FISA Amendments Act of 2008, permits the Attorney General and the Director of National Intelligence to 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. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Courts (FISC) approval. Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Respondentsattorneys and human rights, labor, legal, and media organizationsare United States persons who claim that they engage in sensitive international communications with individuals who they believe are likely targets of §1881a surveillance. On the day that the FISA Amendments Act was enacted, they filed suit, seeking a declaration that §1881a is facially unconstitutional and a permanent injunction against §1881a-authorized surveillance. The District Court found that respondents lacked standing, but the Second Circuit reversed, holding that respondents showed (1) an objectively reasonable likelihood that their communications will be intercepted at some time in the future, and (2) that they are suffering present injuries resulting from costly and burdensome measures they take to protect the confidentiality of their international communications from possible §1881a surveillance.
