The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge:
Amnesty International USA v. Clapper
Before: CALABRESI, SACK, AND LYNCH, Circuit Judges.
Appellants - attorneys, journalists, and labor, legal, media, and human rights 2 organizations - facially challenged the constitutionality of Section 702 of the Foreign 3 Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. § 1881a, which was added to 4 FISA by Section 101(a)(2) of the FISA Amendments Act of 2008 (the "FAA"). The 5 district court (John G. Koeltl, Judge) awarded summary judgment in favor of appellees, 6 finding that appellants lacked standing. We conclude that on the facts accepted by 7 appellees for purposes of summary judgment, appellants have established their standing 8 to sue.
Attorneys, journalists, and labor, legal, media, and human rights organizations 36 brought this action facially challenging the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), which was added to FISA by Section 2 101(a)(2) of the FISA Amendments Act of 2008 (the "FAA"), and codified at 50 U.S.C. 3 § 1881a. Section 702 creates new procedures for authorizing government electronic 4 surveillance targeting non-United States persons outside the United States for purposes of 5 collecting foreign intelligence. The plaintiffs complain that the procedures violate the 6 Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle 7 of separation of powers because they "allow the executive branch sweeping and virtually 8 unregulated authority to monitor the international communications . . . of law-abiding U.S. 9 citizens and residents."
The merits of the plaintiffs' claims are not before us. The only issue presented by 11 this appeal is whether the plaintiffs are legally in a position to assert these claims in a 12 federal court, not whether the claims are to any degree valid. Their merit is an issue for 13 another court on another day. The district court (Koeltl, J.) granted the government 14 summary judgment because it found that the plaintiffs lacked standing. On appeal, the 15 plaintiffs argue that they have standing because the FAA's new procedures*fn2 cause them to 16 fear that their communications will be monitored, and thus force them to undertake costly 17 and burdensome measures to protect the confidentiality of international communications 18 necessary to carrying out their jobs. Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established 2 that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that 3 they have standing. We therefore reverse the district court's judgment.
I. Statutory Scheme at Issue
In 1978, Congress enacted FISA to establish procedures under which federal 7 officials could obtain authorization to conduct electronic surveillance for foreign 8 intelligence purposes, including surveillance of communications between persons located 9 within the United States and surveillance of communications between persons located 10 within the United States and persons located outside the United States.*fn3 See 50 U.S.C.
§§ 1801(f), 1804(a)(6)(A). The 2008 FAA amends FISA. It leaves much of the 2 pre-existing surveillance authorization procedure intact, but it creates new procedures for 3 the authorization of foreign intelligence electronic surveillance targeting non-United States 4 persons located outside the United States.*fn4 See id. § 1881a; see also 154 Cong. Rec. S227, 5 228 (daily ed. Jan. 24, 2008) (statement of Sen. Rockefeller) ("[W]e wanted to ensure that 6 activities authorized by this bill are only directed at persons outside the United States. . . 7 For individuals inside the United States, the existing procedures under FISA continue to 8 apply."). The plaintiffs complain that the new procedures unlawfully permit broader 9 collection of intelligence with less judicial oversight.
A. Surveillance Authorization Procedures Prior to the FAA
FISA established procedures requiring federal officials to obtain authorization to 3 conduct electronic surveillance for foreign intelligence purposes. It created the Foreign 4 Intelligence Surveillance Court ("FISC"), to which the government had to apply for 5 authorization to conduct foreign intelligence surveillance. See 50 U.S.C. §§ 1803, 1804.
To obtain authorization, a federal officer had to submit an application, approved by 7 the Attorney General, that included: the identity of the officer making the application; the 8 identity, if known, or a description of, the individual to be monitored by the surveillance 9 ("the target"); the bases for believing both that the target was a foreign power or an agent 10 of a foreign power, and that a foreign power or an agent of a foreign power was using or 11 was about to use each of the facilities at which the surveillance was directed; proposed 12 minimization procedures; the nature of the information sought and the type of 13 communications or activities to be surveilled; a certification that a significant purpose of 14 the surveillance was to obtain foreign intelligence information, and that the information 15 could not reasonably be obtained by normal investigative techniques; the means by which 16 the surveillance would be effected; a description of any previous surveillance applications; 17 and the period during which the surveillance was to be maintained. Id. § 1804(a)(1)-(9).
Before approving an application, a FISC judge*fn5 had to find that: the application met 19 the above criteria; there was probable cause to believe both that the target was a foreign power or an agent of a foreign power and that each of the facilities or places at which the 2 electronic surveillance was directed was being used, or was about to be used, by a foreign 3 power or an agent of a foreign power; and the government's proposed minimization 4 procedures met the standards defined in § 1801(h).*fn6 Id. § 1805(a).
A FISC judge who approved an application was required to enter an individualized ex parte order that specified (among other things): the identity, if known, or a description of the target; the nature and location of the places to be monitored; the type of information 2 sought to be acquired; the means of surveillance, and the time period for which 3 surveillance was approved. Id. § 1805(c)(1). The order also had to direct the government 4 to follow the approved minimization procedures. Id. § 1805(c)(2)(A). During the 5 authorized surveillance period, the FISC could monitor compliance with these 6 minimization procedures "by reviewing the circumstances under which information 7 concerning United States persons was acquired, retained, or disseminated." Id.
B. Surveillance Authorization Procedures After the FAA
The FAA leaves much of the FISA framework intact, but the new Section 702 11 creates new procedures for the authorization of foreign intelligence surveillance targeting 12 non-United States persons located outside the United States.
13 The FAA, in contrast to the pre-existing FISA scheme, does not require the 14 government to submit an individualized application to the FISC identifying the particular 15 targets or facilities to be monitored. Instead, the Attorney General ("AG") and Director of 16 National Intelligence ("DNI") apply for a mass surveillance authorization by submitting to 17 the FISC a written certification and supporting affidavits attesting generally that "a 18 significant purpose of the acquisition is to obtain foreign intelligence information" and that 19 that information will be obtained "from or with the assistance of an electronic 20 communication service provider." 50 U.S.C. § 1881a(g)(2)(A)(v), (vi). The certification 1 must also attest that adequate targeting and minimization procedures have been approved 2 by the FISC, have been submitted to the FISC for approval, or are being submitted with 3 the certification. Id. § 1881a(g)(2)(A)(i), (ii). "Targeting procedures" are procedures 4 designed to ensure that an authorized acquisition is "limited to targeting persons 5 reasonably believed to be located outside the United States," and is designed to "prevent 6 the intentional acquisition of any communication as to which the sender and all intended 7 recipients are known at the time of the acquisition to be located in the United States." Id.
8 § 1881a(d)(1), 1881a(g)(2)(A)(I). "Minimization procedures" for electronic surveillance 9 under the FAA must meet the definition of minimization procedures for electronic 10 surveillance under FISA, set out in 50 U.S.C. § 1801(h). The government's certification 11 must further attest that the surveillance procedures, which must be included with the 12 certification, comply with the Fourth Amendment. Id. § 1881a(g)(2).
In addition, the certification must attest that the surveillance complies with statutory limitations providing that it:
(1) may not intentionally target any person known at the time of acquisition to be located in the United States;
(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
(3) may not intentionally target a United States person reasonably believed to be located outside the United States;
(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.
50 U.S.C. § 1881a(b); see also id. § 1881a(g)(2)(A)(vii).
The FISC must review the government's certification, and targeting and 10 minimization procedures, and if it finds that the certification includes all of the required 11 elements, it must issue an order authorizing the government to conduct the requested 12 surveillance. Id. § 1881a(i)(2), 1881a(i)(3)(A). At that point, the AG and DNI "may 13 authorize jointly, for a period of up to 1 year . . . , the targeting of persons reasonably 14 believed to be located outside the United States to acquire foreign intelligence 15 information." Id. § 1881a(a).*fn7
If the FISC rejects an application, the government may appeal the denial to the 17 Court of Review. Id. § 1881a(i)(4)(A). During the pendency of that appeal, including any 18 subsequent rehearing en banc, the government may continue to conduct the requested 19 surveillance. Id. § 1881a(i)(4)(B).
Under the FAA, in contrast to the pre-existing FISA scheme, the FISC may not 21 monitor compliance with the targeting and minimization procedures on an ongoing basis. 22 Instead, that duty falls to the AG and DNI, who must submit their assessments to the FISC, as well as the congressional intelligence committees and the Senate and House Judiciary 2 Committees. Id. § 1881a(l)(1). In its summary judgment submissions, the government 3 asserted that "[s]hould such reporting reveal particular minimization procedures to be 4 ineffective in any respect, the FISC has the authority to disapprove such procedures in 5 future § 1881a proceedings." Defs.' Mem. in Opp'n to Pls.' Mot. for Summ. J. at 52-53, 6 Amnesty Int'l USA v. McConnell, 646 F. Supp. 2d 633 (S.D.N.Y. 2009) (No. 08 Civ. 7 6259). But the government has not asserted, and the statute does not clearly state, that the 8 FISC may rely on these assessments to revoke earlier surveillance authorizations.
The head of each element of the intelligence community acquiring communications 10 by means of authorized surveillance also must review the ongoing surveillance procedures 11 by conducting "an annual review to determine whether there is reason to believe that 12 foreign intelligence information has been or will be obtained from the acquisition." 50 U.S.C. § 1881a(l)(3)(A). These reviews of authorized acquisitions must indicate how 14 many United States persons were overheard or were referred to in intercepted 15 communications that were collected under surveillance designed to target non-United 16 States persons.*fn8 The relevant intelligence heads who conduct such annual reviews must 17 use them "to evaluate the adequacy of the minimization procedures," id. § 1881a(l)(3)(B), and they must provide these annual reviews to the FISC, the AG, the DNI, the 2 congressional intelligence committees, and the Senate and House Judiciary Committees, id. § 1881a(l)(3)(C).
C. Comparison of Pre- and Post-FAA Surveillance Authorization Procedures
The plaintiffs highlight two differences between the pre- and post-FAA surveillance 6 authorization procedures. First, whereas under the pre-existing FISA scheme the 7 government had to submit an individualized application for surveillance identifying the 8 particular target, facility, type of information sought, and procedures to be used, under the 9 FAA, the government need not submit a similarly individualized application - it need not 10 identify the particular target or facility to be monitored. Compare 50 U.S.C. § 1805(c)(1), 11 with id. § 1881a(d)(1), 1881a(g)(4). Second, whereas under the pre-existing FISA scheme 12 the FISC had to find probable cause to believe both that the surveillance target is a 13 "foreign power" or agent thereof and that the facilities to be monitored were being used or 14 about to be used by a foreign power or its agent, under the FAA the FISC no longer needs 15 to make any probable-cause determination at all. Instead, the FISC simply verifies that the 16 government has made the proper certifications. Compare 50 U.S.C. § 1805(a)(2)(A), with 17 id. § 1881a(i)(3)(A).
In practice, these new authorization procedures mean that surveillance orders can 19 be significantly broader under the FAA than they previously could have been. Prior to the 20 FAA, surveillance orders could only authorize the government to monitor specific 1 individuals or facilities. Under the FAA, by contrast, the plaintiffs allege that an 2 acquisition order could seek, for example, "[a]ll telephone and e-mail communications to 3 and from countries of foreign policy interest - for example, Russia, Venezuela, or Israel - 4 including communications made to and from U.S. citizens and residents." Moreover, the 5 specific showing of probable cause previously required, and the requirement of judicial 6 review of that showing, have been eliminated. The government has not directly 7 challenged this characterization.*fn9
8 An additional distinction concerns who monitors compliance with statutory 9 limitations on the surveillance procedures. The pre-existing FISA scheme allowed ongoing 10 judicial review by the FISC. Id. § 1805(d)(3). But under the FAA, the judiciary may not 11 monitor compliance on an ongoing basis; the FISC may review the minimization 12 procedures only prospectively, when the government seeks its initial surveillance 13 authorization. Rather, the executive - namely the AG and DNI - bears the responsibility 14 of monitoring ongoing compliance, and although the FISC receives the executive's 15 reports, it cannot rely on them to alter or revoke its previous surveillance authorizations.
Compare 50 U.S.C. § 1805(d)(3), with id. § 1881a(g)(2)(A)(i), (ii), 1881a(l).
The plaintiffs are attorneys and human rights, labor, legal, and media organizations 3 whose work requires international communications with individuals they believe the 4 government will likely monitor under the FAA.*fn10 The plaintiffs sued the DNI, the AG, and 5 the Director of the National Security Agency ("NSA") in their official capacities 6 (collectively, "the government").
On July 10, 2008, the same day Congress enacted the FAA, the plaintiffs filed their 9 complaint alleging that the FAA "allows the executive branch sweeping and virtually 10 unregulated authority to monitor the international communications . . . of law-abiding U.S. 11 citizens and residents." The plaintiffs alleged that they feared that under the FAA the 12 government would intercept their sensitive international communications that were 13 necessary to carrying out their jobs, and that they therefore had to take costly and 14 burdensome measures to protect the confidentiality of those communications. They 15 sought declaratory and injunctive relief, alleging that the FAA facially violates the Fourth 16 Amendment, the First Amendment, Article III of the Constitution, and the principle of 17 separation of powers.
C. Summary Judgment Filings
In September and October 2008, the parties cross-moved for summary judgment.
The plaintiffs sought a declaration that the FAA is unconstitutional. The government, in 2 addition to defending the FAA's constitutionality on the merits, argued that the plaintiffs 3 lacked standing to challenge the facial validity of the statute, contending that the Act could 4 be challenged only by persons who had been electronically surveilled in accordance with 5 its terms and the plaintiffs could not show that they had been so surveilled. The plaintiffs 6 advanced what they characterized as two independent bases for standing to challenge the 7 FAA's constitutionality: first, that they have an actual and well-founded fear that their 8 communications will be ...