The Circuit Split in the Surveillance Cases

By Larkin Reynolds
Thursday, March 24, 2011, 11:33 PM

The other day, Bobby posted a link to the the Second Circuit’s recent decision in Amnesty International v. Clapper, a case holding that plaintiffs challenging the constitutionality of provisions in the 2008 FISA Amendments Act (“FAA”) had standing to pursue their lawsuit. The panel of Judges Guido Calabresi, Robert Sack, and Gerard Lynch held that “[b]ecause standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing.”

The Second Circuit is, of course, not the first federal court of appeals that has considered whether plaintiffs have standing to challenge warrantless wiretapping. Back in July 2007, the Sixth Circuit in ACLU v. NSA, which involved a similar group of plaintiffs, came to a very different conclusion with respect to the pre-FAA counterterrorism surveillance program known as the Terrorist Surveillance Program (“TSP”).

The Second Circuit’s decision, which today Orin Kerr discusses here, seems to create an important circuit split pertaining to standing doctrine. The two cases seem to address a very similar issue. The details, of course, differ. In the more recent case, the Second Circuit confronted an act of Congress. In the earlier case, the Sixth Circuit was looking at an administration policy. But both plaintiffs were attempting to challenge programs of warrantless surveillance by asking their respective courts for injunctive relief. Neither set had proof that their communications had actually been monitored; in fact, neither group even alleged, much less offered evidence of, such surveillance. In both cases, the plaintiffs claimed standing on the basis of harms stemming from their belief that surveillance would occur.

The Second Circuit panel did not frame its opinion overtly as an argument with its sister circuit. Indeed, while the general tension between the cases is clear, the Second Circuit panel makes a half-hearted effort to distinguish away the Sixth Circuit case on factual grounds, and this effort only comes in a footnote on pages 61 and 62 of the 63-page opinion. There the panel writes:

In ACLU v. NSA, the plaintiffs challenged a narrow surveillance program that monitored particular individuals the government suspected were associated with al Qaeda. 493 F.2d at 647 (Batchelder, J., lead opinion). The FAA, by contrast, authorizes a considerably broader surveillance program. This fact increases the likelihood that the instant plaintiffs will be harmed in the future, which is a key consideration in determining whether the plaintiffs should have standing to challenge the underlying statute.

The distinction is frankly unpersuasive. And when viewed against the rest of the opinion, this factual distinction does not seem to be what drives the different outcome either. For the most part, the TSP plaintiffs had tied the risk of surveillance in their case to their communications with individuals who might be targeted by the TSP protocols. They had offered publicly available information about the TSP stating that: “(1) [the government] eavesdrops, (2) without warrants, (3) on international telephone and email communications in which at least one of the parties is a suspected al Qaeda affiliate." While the plaintiff group in the TSP case did not purport to be communicating with Al Qaeda suspects (the group expressly targeted by the TSP), the court understood their claim to be that they "communicate with individuals located overseas [who they] believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP" (emphasis added). This doesn't seem very different from what the plaintiffs in the more recent suit allege in terms of the types of links between the plaintiffs and the surveillance targets. True, as the Second Circuit noted, the group of targets is likely larger in the FAA group than in the TSP group. But is it meaningfully larger in terms of its ratio to the plaintiff group? Do the details in the declarations provided by the plaintiffs (alleging details about their communication patterns, preferences, etc.) truly lead to the difference between establishing standing and not? Probably not, though the Second Circuit's footnote would imply that such factors are just as important as any other characteristic of the case.

What's driving the different outcome here is a disagreement about the law, and specifically about interpretations of two relevant Supreme Court cases. The first of these is Laird v. Tatum, a Supreme Court a case involving secret United States Army surveillance that plaintiffs alleged violated their First Amendment rights. That case was, as the Second Circuit recognized, the “only Supreme Court precedent in which a plaintiff who had not been surveilled claimed standing to challenge a surveillance scheme.” The other case, City of Los Angeles v. Lyons, is also an apt Supreme Court precedent. In Lyons, the Court held that a plaintiff lacked standing to seek injunctive relief from the enforcement of a police choke-hold policy that, he feared, placed him at risk of harm from future police conduct. But the courts read these cases very differently--and that, not the facts of the cases, is what really separates them. To put the matter bluntly, both of these opinions can't be right, the Second Circuit's footnote notwithstanding.

Diving into the facts and the reasoning of the Sixth Circuit opinion, then, we can start with the plaintiffs, who included “journalists, academics, and lawyers who regularly communicate with individuals located overseas, who the plaintiffs believed were the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the terrorist surveillance program (‘TSP’).” They based their understanding of the program’s operation on the publicly available facts listed above (that “(1) [the government] eavesdrops, (2) without warrants, (3) on international telephone and email communications in which at least one of the parties is a suspected al Qaeda affiliate”) and they alleged violations of the First and Fourth Amendments and the Separation of Powers principle. They also made several statutory arguments that we can cabin for the purposes of this post.

The plaintiffs alleged three types of injuries. First was an inability to communicate with their overseas contacts by telephone or email as a consequence of their self-governing ethical obligations. The injury manifests, they claimed, in both monetary and non-monetary ways. Their second injury was that their overseas contacts, clients, witnesses, and sources were also unwilling to communicate by telephone or email, as a result of their fear that the NSA will intercept the communications. Third, plaintiffs claimed injury from the NSA’s violation of their legitimate expectation of privacy in their overseas telephone and email communications.

Judge Alice Batchelder, who wrote the lead opinion for the court, first discussed an undisputed point of law: the elements of standing doctrine. Article III standing requires three elements: (1) injury in fact (2) a causal relationship between the injury and the challenged conduct; and (3) a likelihood that the injury will be redressed by a favorable decision (“redressability”). Regarding the injury element, Judge Batchelder wrote essentially that if the Supreme Court failed to find a sufficient injury in Laird, then it would be foolish to find the plaintiffs in the TSP case had any more of an injury. The Supreme Court in Laird had held that its plaintiffs, subjects of secret United States Army surveillance, may have suffered a “subjective chill,” but had not “alleged a sufficiently concrete, actual, and imminent injury to entitle them to standing.” Something “more” was necessary. That “something more,” demanded in Laird, was still not met in the instant case either. The alleged “chilling,” she wrote, resulted from “purely speculative” fears; the plaintiffs had still alleged only a “subjective apprehension and a personal (self-imposed) unwillingness to communicate,” which fall squarely within Laird. In fact, the court wrote, the TSP plaintiffs claimed injury that was “even less concrete, actual, or immediate than the injury in Laird.

The Sixth Circuit also found that there was too attenuated a causal link between the injury alleged and the government policy. For standing to exist, an injury must be “fairly traceable” to the government action, in the sense that the injury could not be so subjective that the injury results from a plaintiff’s “unreasonable decision . . . to bring about a harm that he knew to be avoidable.”  And, in this case, the plaintiffs’ claim that their actions were due to the refusal by their overseas contacts to communicate by telephone or email meant that any injury was not at the government’s hands. The Sixth Circuit thus concluded that there was a “disrupt[ion]” in the causal chain caused “by the independent decisions of the third-party overseas contacts.” It also found proof of the redressability element lacking, and Judge Batchelder explained that a claim that the requested injunctive relief would “entice the plaintiffs and their contacts to “freely engage in conversations and correspond via email without concern” was “at best, be termed only speculative.” “[I]t is just as likely (if not more likely) that, even with the imposition of a warrant requirement,” she wrote, “the plaintiffs’ current situation will not change [and] their fears will not be abated.”

The court then analyzed standing with regard to the alleged Fourth Amendment (expectation of privacy) violation and briefly disposed of it. First, the court wrote that Fourth Amendment rights are “personal rights” which, unlike First Amendment rights, may not be asserted vicariously. Judge Batchelder then concluded: “The plaintiffs do not, and cannot, assert that any of their own communications have ever been intercepted. Instead, they allege only a belief that their communications are being intercepted, based on their own assessment of their overseas contacts as people who are likely to fall within the NSA’s broad, public description of its targets. As acknowledged by plaintiffs’ counsel at oral argument, it would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs themselves have been subjected to an illegal search or seizure.” The court also made fairly quick work of the plaintiffs’ arguments for standing to challenge the program on separation-of-powers grounds, writing that it cannot exceed its allotted authority “in order to condemn the President or Congress for exceeding theirs.”

In this week’s Second Circuit case, the plaintiffs were very similar to those in the Sixth Circuit dispute: “attorneys, journalists, and labor, legal, media, and human rights organizations." They, like the Sixth Circuit plaintiffs, claimed their work "require[d] international communications with individuals they believe the government will likely monitor under the FAA.” And they similarly alleged violations of the First and Fourth Amendments as well as the Separation of Powers principle. Unlike under the TSP, however, they did not have to base their claims on media reports of the program’s operation. Section 702 of the FAA spells out the procedure warrantless electronic surveillance of non-U.S. persons believed to be located outside the United States. And the claimed injuries were similar as well: “The plaintiffs alleged that they feared that under the FAA the government would intercept their sensitive international communications that were necessary to carrying out their jobs, and that they therefore had to take costly and burdensome measures to protect the confidentiality of those communications.”

Judge Lynch, writing for himself and Judges Sack and Calabresi, first noted the plaintiffs' two claimed types of injuries: the first—the possibility of being monitored in the future—raised for the court “a question of injury in fact, because probabilistic injuries constitute injuries in fact only when they reach a certain threshold of likelihood.” Even though the Laird plaintiffs were held to lack standing, Judge Lynch wrote, that did not “imply that the instant plaintiffs similarly have failed to allege injury. Any statement in Laird of a general rule applicable to all surveillance cases could only be dictum.”

He then turned to focus on the plaintiffs’ second theory of injury—namely, that they had incurred additional costs to communicate without threat of surveillance. The court described this as “the most mundane of injuries in fact.” Instead of interpreting the harm in question as an ethereal chilling effect that manifested as a choice between incurring costs or substandard performance, the court wrote treated the plaintiffs as having “already incurred professional and economic costs to avoid interception.” This is sufficient to satisfy the injury requirement, in Judge Lynch’s view.

He also found a more direct causal link than the Sixth Circuit panel did, writing that because “the plaintiffs’ fears were reasonable even under the stringent reasonableness standards found in future-injury cases, and because the plaintiffs incurred these professional and economic costs as a direct result of that reasonable fear, their present injuries in fact clearly satisfy the requirements for standing.”

The government argued that the plaintiffs needed to show it was “effectively certain” that they would be monitored. That argument was, in Judge Lynch’s view, overstated. He analogized the standard to other cases where plaintiffs needed to show a “realistic danger” of “direct injury,” and though he did not invoke those standards in the instant case wrote that the court would consider “whether a plaintiff’s present injury resulted from some irrational or otherwise clearly unreasonable fear of future government action that is unlikely to take place.” Implying that a disconnect of that sort would break the necessary causal chain, he went on to analyze Lyons­—the case involving the LAPD choke-hold policy. He wrote that

Although the plaintiff in Lyons lacked standing, that case clearly articulated the principle that a plaintiff may obtain standing by showing a sufficient likelihood of future injury. Indeed, the Court stated that Lyons would have established standing if he had been able to allege facts that would have made his injury sufficiently likely--such as another encounter with the police or a city policy authorizing police officers to engage in the conduct he feared.

Then Judge Lynch quoted  Lyons in a footnote:

In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner.

Later in the opinion, Judge Lynch goes on for pages discussing the Laird case, where "[the plaintiffs] claimed only that they might be injured if the information lawfully collected by the military were misused in some unspecified way at some unspecified point in the future, and they alleged that the surveillance scheme had a chilling effect, while essentially admitting that they themselves had not been chilled, and that the program had not altered their behavior in any way."  The TSP plaintiffs' case is simply different: "By contrast, the instant plaintiffs clearly have alleged specific and concrete injuries."

Put simply, these cases are not reconcilable--at least not in any broad sense--and the Second Circuit's resort to very marginal factual distinctions seem to paint but a thin veneer over a pretty profound difference in outlook on an important point of law.