USCA Case #14-5004
Document #1570210
Filed: 08/28/2015
4
evaluation of comparable inferences and cuts strongly against
plaintiffs’ claim that they have a substantial likelihood of
prevailing as to standing. There, a group of US-based
“attorneys and human rights, labor, legal, and media
organizations” challenged the surveillance authorized by the
FISA Amendments Act of 2008. Id. at 1145. The statute
empowered the Attorney General and the Director of National
Intelligence to jointly seek an order from the FISC
authorizing “the targeting of persons reasonably believed to
be located outside the United States to acquire foreign
intelligence information” for a period of up to one year. 50
U.S.C. § 1881a. Plaintiffs claimed they were injured by the
surveillance because their work required them “to engage in
sensitive and sometimes privileged telephone and e-mail
communications with colleagues, clients, sources, and other
individuals located abroad” and that “some of the people with
whom they exchange foreign intelligence information [we]re
likely targets of surveillance under § 1881a” because they
communicate with “people the Government ‘believes or
believed to be associated with terrorist organizations,’ ‘people
located in geographic areas that are a special focus’ of the
Government’s counterterrorism or diplomatic efforts, and
activists who oppose governments that are supported by the
United States Government.” 133 S. Ct. at 1145.
But as the Court observed, the Clapper plaintiffs had “no
actual knowledge of the Government’s § 1881a targeting
practices” and accordingly “merely speculate[d] and ma[d]e
assumptions about whether their communications with their
foreign contacts will be acquired under § 1881a.” Id. at 1148.
The premises for their speculation were hardly trivial. They
claimed (and it was not disputed) (1) that they engaged in
communications eligible for surveillance under the disputed
section, (2) that the government had a strong motive to
intercept these particular communications because of the
subject matter and identities involved, (3) that the government
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