· No. In the Supreme Court of the United States JAMES R. CLAPPER, JR., DIRECTOR OF NATIONAL INTELLIGENCE, ET AL., PETITIONERS v. AMNESTY INTERNATIONAL USA ET AL. ON PETITION FOR

No.

In the Supreme Court of the United States

JAMES R. CLAPPER, JR., DIRECTOR OF NATIONALINTELLIGENCE, ET AL., PETITIONERS

v.

AMNESTY INTERNATIONAL USA ET AL.

ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

APPENDIX TO THEPETITION FOR A WRIT OF CERTIORARI

(VOLUME 1)

DONALD B. VERRILLI, JR.Solicitor General

Counsel of RecordTONY WEST

Assistant Attorney GeneralEDWIN S. KNEEDLER

Deputy Solicitor GeneralANTHONY A. YANG

Assistant to the SolicitorGeneral

DOUGLAS N. LETTERDANIEL J. LENERZ

Attorneys Department of JusticeWashington, D.C. [email protected](202) 514-2217

TABLE OF CONTENTSPage

Volume 1

Appendix A – Court of Appeals Opinion (Mar. 21,2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix B – District Court Opinion (Aug. 20,2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62a

Appendix C – Order denying rehearing (Sept. 21,2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114a

Volume 2

Appendix D – Complaint (filed July 10, 2008) . . . . . . . 197a

Appendix E – Declaration of Jameel Jaffer(filed Sept. 12, 2008) . . . . . . . . . . . . . . . 243a

Exhibit A – James Risen & Eric Lichtblau,Bush Lets U.S. Spy on CallersWithout Courts, New YorkTimes (Dec. 16, 2005) . . . . . . . . . . . 247a

Exhibit B – The President’s Radio Address,41 Weekly Comp. Pres. Docs1880 (Dec. 17, 2005) . . . . . . . . . . . . . 262a

Exhibit C – Excerpts from The President’s News Conference, 41 WeeklyComp. Pres. Docs 1885 (Dec. 19,2005) . . . . . . . . . . . . . . . . . . . . . . . . . 266a

Exhibit D – Press Briefing by AttorneyGeneral Alberto Gonzales andGeneral Michael Hayden,Principal Deputy Director forNational Intelligence (Dec. 19,2005) . . . . . . . . . . . . . . . . . . . . . . . . . 272a

(I)

II

Table of Contents—Continued: Page

Exhibit E – Excerpts from Remarks by General Michael V. Hayden atthe National Press Club (Jan.23, 2006) (full text available athttp://www.dni.gov/speeches/printer_friendly/20060123_speech_print.htm) . . . . . . . . . . . . . . 294a

Exhibit F – Letter from Attorney General Alberto R. Gonzales to SenatorPatrick Leahy and SenatorArlen Specter (dated Jan. 17,2007) . . . . . . . . . . . . . . . . . . . . . . . . . 312a

Exhibit G – Chris Roberts, Transcript: Debate on the Foreign Intel-ligence Surveillance Act, ElPaso Times (Aug. 22, 2007) . . . . . . 315a

Exhibit H – Mike McConnell, A Law Terrorism Outran: We Need aFISA For the 21st Century,Washington Post (May 21, 2007) . . 331a

Appendix F – Declaration of Naomi Klein (filedSept. 12, 2008) . . . . . . . . . . . . . . . . . . . . . 334a

Appendix G – Declaration of Joanne Mariner(filed Sept. 12, 2008) . . . . . . . . . . . . . . . 340a

Appendix H – Declaration of Sylvia Royce (filedSept. 12, 2008) . . . . . . . . . . . . . . . . . . . . . 348a

Appendix I – Declaration of John Walsh (filedSept. 12, 2008) . . . . . . . . . . . . . . . . . . . . . 354a

Appendix J – Declaration of Christopher L.Hedges (filed Dec. 15, 2008) . . . . . . . . . 363a

III

Table of Contents—Continued: Page

Appendix K – Declaration of Scott McKay (filedDec. 15, 2008) . . . . . . . . . . . . . . . . . . . . . 368a

Appendix L – Declaration of Professor StephenGillers (filed Dec. 15, 2008) (ExhibitA omitted) . . . . . . . . . . . . . . . . . . . . . . . . 376a

Appendix M – Declaration of Steven M. Bellovin(filed Dec. 15, 2008) . . . . . . . . . . . . . . . . 389a

Appendix N – Statement of Undisputed Facts inSupport of Respondents’ Motion forSummary Judgment (filed Sept. 12,2008) . . . . . . . . . . . . . . . . . . . . . . . . . 396a

Appendix O – Petitioners’ Response to Respond-ents’ Statement of UndisputedFacts (filed Oct. 28, 2008) . . . . . . . . . . . 402a

Appendix P – Respondents’ Supplemental State-ment of Undisputed Facts (filed Dec. 12, 2008) . . . . . . . . . . . . . . . . . . . . . 410a

Appendix Q – Statutory Provisions . . . . . . . . . . . . . . . 415a

APPENDIX A

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

No. 09-4112-cv

AMNESTY INTERNATIONAL USA, GLOBAL FUNDFOR WOMEN, GLOBAL RIGHTS, HUMAN RIGHTSWATCH, INTERNATIONAL CRIMINAL DEFENCE

ATTORNEYS ASSOCIATION, THE NATION MAGAZINE,PEN AMERICAN CENTER, SERVICE EMPLOYEES

INTERNATIONAL UNION, WASHINGTON OFFICE ONLATIN AMERICA, DANIEL N. ARSHACK, DAVID NEVIN,

SCOTT MCKAY, SYLVIA ROYCE,PLAINTIFFS-APPELLANTS

v.

JAMES R. CLAPPER, JR., IN HIS OFFICIAL CAPACITYAS DIRECTOR OF NATIONAL INTELLIGENCE,*

KEITH B. ALEXANDER, IN HIS OFFICIAL CAPACITYAS DIRECTOR OF THE NATIONAL SECURITY AGENCY

AND CHIEF OF THE CENTRAL SECURITY SERVICE,ERIC H. HOLDER, JR., IN HIS OFFICIAL CAPACITYAS ATTORNEY GENERAL OF THE UNITED STATES,

DEFENDANTS-APPELLEES

Argued: Apr. 16, 2010 Decided: Mar. 21, 2011

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), JamesR. Clapper, Jr., the Director of National Intelligence is automaticallysubstituted as a defendant herein for his predecessor. The Clerk ofCourt is directed to amend the caption to read as shown above.

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Before: CALABRESI, SACK, and LYNCH, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

Attorneys, journalists, and labor, legal, media, andhuman rights organizations brought this action faciallychallenging the constitutionality of Section 702 of theForeign Intelligence Surveillance Act of 1978 (“FISA”),which was added to FISA by Section 101(a)(2) of theFISA Amendments Act of 2008 (the “FAA”), and codi-fied at 50 U.S.C. § 1881a. Section 702 creates new pro-cedures for authorizing government electronic surveil-lance targeting non-United States persons outside theUnited States for purposes of collecting foreign intelli-gence. The plaintiffs complain that the procedures vio-late the Fourth Amendment, the First Amendment, Ar-ticle III of the Constitution, and the principle of separa-tion of powers because they “allow[] the executivebranch sweeping and virtually unregulated authority tomonitor the international communications . . . of law-abiding U.S. citizens and residents.”

The merits of the plaintiffs’ claims are not before us.The only issue presented by this appeal is whether theplaintiffs are legally in a position to assert these claimsin a federal court, not whether the claims are to any de-gree valid. Their merit is an issue for another court onanother day. The district court (Koeltl, J.) granted thegovernment summary judgment because it found thatthe plaintiffs lacked standing. On appeal, the plaintiffsargue that they have standing because the FAA’s newprocedures1 cause them to fear that their communica-

1 Throughout this opinion, references to the FAA’s new procedureschallenged by the plaintiffs refer to the procedures set forth in Section702.

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tions will be monitored, and thus force them to under-take costly and burdensome measures to protect theconfidentiality of international communications neces-sary to carrying out their jobs. Because standing maybe based on a reasonable fear of future injury and costsincurred to avoid that injury, and the plaintiffs have es-tablished that they have a reasonable fear of injury andhave incurred costs to avoid it, we agree that they havestanding. We therefore reverse the district court’s judg-ment.

BACKGROUND

I. Statutory Scheme at Issue

In 1978, Congress enacted FISA to establish proce-dures under which federal officials could obtain au-thorization to conduct electronic surveillance for foreignintelligence purposes, including surveillance of commu-nications between persons located within the Uni-ted States and surveillance of communications betweenpersons located within the United States and per-sons located outside the United States.2 See 50 U.S.C.

2 FISA defined electronic surveillance to include:

(1) the acquisition by an electronic, mechanical, or other surveillancedevice of the contents of any wire or radio communication sent by orintended to be received by a particular, known United States personwho is in the United States, if the contents are acquired by intention-ally targeting that United States person, under circumstances inwhich a person has a reasonable expectation of privacy and a warrantwould be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillancedevice of the contents of any wire communication to or from a personin the United States, without the consent of any party thereto, if suchacquisition occurs in the United States, but does not include theacquisition of those communications of computer trespassers that

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§§ 1801(f ), 1804(a)(6)(A). The 2008 FAA amends FISA.It leaves much of the preexisting surveillance authoriza-tion procedure intact, but it creates new procedures forthe authorization of foreign intelligence electronic sur-veillance targeting non-United States persons locatedoutside the United States.3 See id. § 1881a; see also 154Cong. Rec. S227, 228 (daily ed. Jan. 24, 2008) (statementof Sen. Rockefeller) (“[W]e wanted to ensure that activi-ties authorized by this bill are only directed at personsoutside the United States. . . . For individuals insidethe United States, the existing procedures under FISAcontinue to apply.”). The plaintiffs complain that thenew procedures unlawfully permit broader collection ofintelligence with less judicial oversight.

would be permissible under section 2511(2)(i) of Title 18;

(3) the intentional acquisition by an electronic, mechanical, or othersurveillance device of the contents of any radio communication, undercircumstances in which a person has a reasonable expectation ofprivacy and a warrant would be required for law enforcementpurposes, and if both the sender and all intended recipients arelocated within the United States; or

(4) the installation or use of an electronic, mechanical, or othersurveillance device in the United States for monitoring to acquireinformation, other than from a wire or radio communication, undercircumstances in which a person has a reasonable expectation ofprivacy and a warrant would be required for law enforcementpurposes.

50 U.S.C. § 1801(f ).3 “ ‘United States person’ means ‘a citizen of the United States, an

alien lawfully admitted for permanent residence . . . , an unincorpo-rated association a substantial number of members of which are citizensof the United States or aliens lawfully admitted for permanentresidence, or a corporation which is incorporated in the United States,but does not include a corporation or an association which is a foreignpower. . . .’ ” 50 U.S.C. § 1801(i).

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A. Surveillance Authorization Procedures Priorto the FAA

FISA established procedures requiring federal offi-cials to obtain authorization to conduct electronic sur-veillance for foreign intelligence purposes. It createdthe Foreign Intelligence Surveillance Court (“FISC”),to which the government had to apply for authorizationto conduct foreign intelligence surveillance. See 50U.S.C. §§ 1803, 1804.

To obtain authorization, a federal officer had to sub-mit an application, approved by the Attorney General,that included: the identity of the officer making the ap-plication; the identity, if known, or a description of, theindividual to be monitored by the surveillance (“the tar-get”); the bases for believing both that the target was aforeign power or an agent of a foreign power, and thata foreign power or an agent of a foreign power was usingor was about to use each of the facilities at which thesurveillance was directed; proposed minimization proce-dures; the nature of the information sought and the typeof communications or activities to be surveilled; a certifi-cation that a significant purpose of the surveillance wasto obtain foreign intelligence information, and thatthe information could not reasonably be obtained bynormal investigative techniques; the means by which thesurveillance would be effected; a description of any pre-vious surveillance applications; and the period dur-ing which the surveillance was to be maintained. Id.§ 1804(a)(1)-(9).

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Before approving an application, a FISC judge4 hadto find that: the application met the above criteria;there was probable cause to believe both that the targetwas a foreign power or an agent of a foreign power andthat each of the facilities or places at which the elec-tronic surveillance was directed was being used, or wasabout to be used, by a foreign power or an agent of a for-eign power; and the government’s proposed mini-mization procedures met the standards defined in§ 1801(h).5 Id. § 1805(a).

4 The Chief Justice of the United States publicly designates elevendistrict court judges to serve on the FISC. 50 U.S.C. § 1803(a)(1).

5 50 U.S.C. § 1801(h) defines minimization procedures, in relevantpart, as:

(1) specific procedures, which shall be adopted by the AttorneyGeneral, that are reasonably designed in light of the purpose andtechnique of the particular surveillance, to minimize the acquisitionand retention, and prohibit the dissemination, of nonpublicly availableinformation concerning unconsenting United States persons consis-tent with the need of the United States to obtain, produce, and dis-seminate foreign intelligence information;

(2) procedures that require that nonpublicly available information,which is not foreign intelligence information, as defined in subsection(e)(1) of this section, shall not be disseminated in a manner thatidentifies any United States person, without such person’s consent,unless such person’s identity is necessary to understand foreign intel-ligence information or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures that allow forthe retention and dissemination of information that is evidence of acrime which has been, is being, or is about to be committed and thatis to be retained or disseminated for law enforcement purposes[.]

Section 1801(h) also includes a fourth requirement for minimizationprocedures that applies to authorization of surveillance directed sole-ly at communications between or among foreign powers. 50 U.S.C.

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A FISC judge who approved an application was re-quired to enter an individualized ex parte order thatspecified (among other things): the identity, if known,or a description of the target; the nature and location ofthe places to be monitored; the type of informationsought to be acquired; the means of surveillance, and thetime period for which surveillance was approved. Id.§ 1805(c)(1). The order also had to direct the govern-ment to follow the approved minimization procedures.Id. § 1805(c)(2)(A). During the authorized surveillanceperiod, the FISC could monitor compliance with theseminimization procedures “by reviewing the circum-stances under which information concerning UnitedStates persons was acquired, retained, or disseminated.”Id. § 1805(d)(3).

B. Surveillance Authorization Procedures After theFAA

The FAA leaves much of the FISA framework intact,but the new Section 702 creates new procedures for theauthorization of foreign intelligence surveillance target-ing non-United States persons located outside theUnited States.

The FAA, in contrast to the preexisting FISAscheme, does not require the government to submit anindividualized application to the FISC identifying theparticular targets or facilities to be monitored. Instead,the Attorney General (“AG”) and Director of NationalIntelligence (“DNI”) apply for a mass surveillance au-thorization by submitting to the FISC a written certifi-cation and supporting affidavits attesting generally that

§§ 1801(h)(4), 1802. The fourth requirement does not pertain to thetype of foreign intelligence surveillance plaintiffs challenge.

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“a significant purpose of the acquisition is to obtain for-eign intelligence information” and that that informationwill be obtained “from or with the assistance of an elec-tronic communication service provider.” 50 U.S.C.§ 1881a(g)(2)(A)(v), (vi). The certification must also at-test that adequate targeting and minimization proce-dures have been approved by the FISC, have been sub-mitted to the FISC for approval, or are being submittedwith the certification. Id. § 1881a(g)(2)(A)(i), (ii). “Tar-geting procedures” are procedures designed to ensurethat an authorized acquisition is “limited to targetingpersons reasonably believed to be located outside theUnited States,” and is designed to “prevent the inten-tional acquisition of any communication as to which thesender and all intended recipients are known at the timeof the acquisition to be located in the United States.” Id.§ 1881a(d)(1), 1881a(g)(2)(A)(i). “Minimization proce-dures” for electronic surveillance under the FAA mustmeet the definition of minimization procedures for elec-tronic surveillance under FISA, set out in 50 U.S.C.§ 1801(h). The government’s certification must furtherattest that the surveillance procedures, which must beincluded with the certification, comply with the FourthAmendment. Id. § 1881a(g)(2).

In addition, the certification must attest that the sur-veillance complies with statutory limitations providingthat it:

(1) may not intentionally target any person known atthe time of acquisition to be located in the UnitedStates;

(2) may not intentionally target a person reasonablybelieved to be located outside the United States ifthe purpose of such acquisition is to target a particu-

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lar, known person reasonably believed to be in theUnited States;

(3) may not intentionally target a United States per-son reasonably believed to be located outside theUnited States;

(4) may not intentionally acquire any communicationas to which the sender and all intended recipients areknown at the time of the acquisition to be located inthe United States; and

(5) shall be conducted in a manner consistent withthe fourth amendment to the Constitution of theUnited States.

50 U.S.C. § 1881a(b); see also id. § 1881a(g)(2)(A)(vii).

The FISC must review the government’s certifica-tion, and targeting and minimization procedures, andif it finds that the certification includes all of the re-quired elements, it must issue an order authorizing thegovernment to conduct the requested surveillance. Id.§ 1881a(i)(2), 1881a(i)(3)(A). At that point, the AG andDNI “may authorize jointly, for a period of up to 1 year. . . , the targeting of persons reasonably believed to belocated outside the United States to acquire foreign in-telligence information.” Id. § 1881a(a).6

If the FISC rejects an application, the governmentmay appeal the denial to the Court of Review. Id.§ 1881a(i)(4)(A). During the pendency of that appeal,including any subsequent rehearing en banc, the govern-

6 In exigent circumstances, the government may start wiretappingbefore applying for FISC authorization, so long as the governmentapplies to the FISC for authorization within seven days. 50 U.S.C.§ 1881a(c)(2), 1881a(g)(1)(B).

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ment may continue to conduct the requested surveil-lance. Id. § 1881a(i)(4)(B).

Under the FAA, in contrast to the preexisting FISAscheme, the FISC may not monitor compliance with thetargeting and minimization procedures on an ongoingbasis. Instead, that duty falls to the AG and DNI, whomust submit their assessments to the FISC, as well asthe congressional intelligence committees and the Sen-ate and House Judiciary Committees. Id. § 1881a(l)(1).In its summary judgment submissions, the governmentasserted that “[s]hould such reporting reveal particularminimization procedures to be ineffective in any respect,the FISC has the authority to disapprove such proce-dures in future § 1881a proceedings.” Defs.’ Mem. inOpp’n to Pls.’ Mot. for Summ. J. at 52-53, Amnesty Int’lUSA v. McConnell, 646 F. Supp. 2d 633 (S.D.N.Y. 2009)(No. 08 Civ. 6259). But the government has not as-serted, and the statute does not clearly state, that theFISC may rely on these assessments to revoke earliersurveillance authorizations.

The head of each element of the intelligence commu-nity acquiring communications by means of authorizedsurveillance also must review the ongoing surveillanceprocedures by conducting “an annual review to deter-mine whether there is reason to believe that foreign in-telligence information has been or will be obtained fromthe acquisition.” 50 U.S.C. § 1881a(l)(3)(A). These re-views of authorized acquisitions must indicate how manyUnited States persons were overheard or were referredto in intercepted communications that were collectedunder surveillance designed to target non-United States

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persons.7 The relevant intelligence heads who con-duct such annual reviews must use them “to evaluatethe adequacy of the minimization procedures,” id.§ 1881a(l)(3)(B), and they must provide these annualreviews to the FISC, the AG, the DNI, the congressionalintelligence committees, and the Senate and House Judi-ciary Committees, id. § 1881a(l)(3)(C).

C. Comparison of Pre- and Post-FAA SurveillanceAuthorization Procedures

The plaintiffs highlight two differences between thepre- and post-FAA surveillance authorization proce-dures. First, whereas under the preexisting FISAscheme the government had to submit an individualizedapplication for surveillance identifying the particulartarget, facility, type of information sought, and proce-dures to be used, under the FAA, the government neednot submit a similarly individualized application—itneed not identify the particular target or facility to bemonitored. Compare 50 U.S.C. § 1805(c)(1), with id.§ 1881a(d)(1), 1881a(g)(4). Second, whereas under thepreexisting FISA scheme the FISC had to find probablecause to believe both that the surveillance target is a“foreign power” or agent thereof and that the facilitiesto be monitored were being used or about to be used bya foreign power or its agent, under the FAA the FISCno longer needs to make any probable-cause determina-tion at all. Instead, the FISC simply verifies that the

7 More specifically, the FAA requires that these reviews provide,inter alia, a count of “disseminated intelligence reports containing a ref-erence to a United States-person identity” and “the number of [surveil-lance] targets that were later determined to be located in the UnitedStates and, to the extent possible, whether communications of suchtargets were reviewed.” 50 U.S.C. § 1881a(l)(3)(A).

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government has made the proper certifications. Com-pare 50 U.S.C. § 1805(a)(2)(A), with id. § 1881a(i)(3)(A).

In practice, these new authorization proceduresmean that surveillance orders can be significantlybroader under the FAA than they previously could havebeen. Prior to the FAA, surveillance orders could onlyauthorize the government to monitor specific individualsor facilities. Under the FAA, by contrast, the plaintiffsallege that an acquisition order could seek, for example,“[a]ll telephone and e-mail communications to and fromcountries of foreign policy interest—for example, Rus-sia, Venezuela, or Israel—including communicationsmade to and from U.S. citizens and residents.” More-over, the specific showing of probable cause previouslyrequired, and the requirement of judicial review of thatshowing, have been eliminated. The government has notdirectly challenged this characterization.8

An additional distinction concerns who monitors com-pliance with statutory limitations on the surveillanceprocedures. The preexisting FISA scheme allowed on-going judicial review by the FISC. Id. § 1805(d)(3). Butunder the FAA, the judiciary may not monitor compli-ance on an ongoing basis; the FISC may review theminimization procedures only prospectively, when thegovernment seeks its initial surveillance authorization.Rather, the executive—namely the AG and DNI—bearsthe responsibility of monitoring ongoing compliance,

8 In its brief, the government says that it “disputes” the plaintiffs’interpretation of “the scope of [the FAA],” but it does not identify whatis wrong with the plaintiffs’ interpretation, or what a more appropriateinterpretation would be. At oral argument, we asked the governmentto clarify what it found inaccurate in the plaintiffs’ characterization, andagain it failed to do so.

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and although the FISC receives the executive’s reports,it cannot rely on them to alter or revoke its pre-vious surveillance authorizations. Compare 50 U.S.C.§ 1805(d)(3), with id. § 1881a(g)(2)(A)(i), (ii), 1881a(l).

II. Prior Proceedings

A. Parties

The plaintiffs are attorneys and human rights, labor,legal, and media organizations whose work requires in-ternational communications with individuals they believethe government will likely monitor under the FAA.9 Theplaintiffs sued the DNI, the AG, and the Director of theNational Security Agency (“NSA”) in their official ca-pacities (collectively, “the government”).

B. Complaint

On July 10, 2008, the same day Congress enacted theFAA, the plaintiffs filed their complaint alleging that theFAA “allows the executive branch sweeping and virtu-ally unregulated authority to monitor the internationalcommunications . . . of law-abiding U.S. citizens andresidents.” The plaintiffs alleged that they feared thatunder the FAA the government would intercept theirsensitive international communications that were neces-sary to carrying out their jobs, and that they thereforehad to take costly and burdensome measures to protectthe confidentiality of those communications. Theysought declaratory and injunctive relief, alleging thatthe FAA facially violates the Fourth Amendment, theFirst Amendment, Article III of the Constitution, andthe principle of separation of powers.

9 The nature of and need for these communications with such indi-viduals is fleshed out below.

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C. Summary Judgment Filings

In September and October 2008, the parties cross-moved for summary judgment. The plaintiffs sought adeclaration that the FAA is unconstitutional. The gov-ernment, in addition to defending the FAA’s constitu-tionality on the merits, argued that the plaintiffs lackedstanding to challenge the facial validity of the statute,contending that the Act could be challenged only by per-sons who had been electronically surveilled in accor-dance with its terms and the plaintiffs could not showthat they had been so surveilled. The plaintiffs ad-vanced what they characterized as two independentbases for standing to challenge the FAA’s constitutional-ity: first, that they have an actual and well-founded fearthat their communications will be monitored in the fu-ture; and, second, that in light of that fear they havetaken costly and burdensome measures to protect theconfidentiality of certain communications.

In support of their standing arguments, the plaintiffsfiled declarations and a Statement of Undisputed Factspursuant to Local Rule 56.1 (“56.1 Statement”). Theplaintiffs’ evidence tended to show that their work “re-quires them to engage in sensitive and sometimes privi-leged telephone and e-mail communications with col-leagues, clients, journalistic sources, witnesses, experts,foreign governmental officials, and victims of humanrights abuses located outside the United States.” 10 Theindividuals with whom the plaintiffs communicate in-clude “people the U.S. Government believes or believedto be associated with terrorist organizations,” “politicaland human rights activists who oppose governments

10 As more fully discussed below, the government does not dispute theaccuracy of plaintiffs’ factual assertions.

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that are supported economically or militarily by the U.S.government,” and “people located in geographic areasthat are a special focus of the U.S. government’scounterterrorism or diplomatic efforts.” 11

11 The plaintiffs submitted a number of declarations providing examp-les of such individuals: Attorney Scott McKay, for instance, communi-cates with his client Sami Omar Al-Hussayen, a Saudi Arabian residentwho has faced criminal charges in connection with the September 11terrorist attacks and is now a defendant in several related civil cases.McKay also helps represent Khalid Sheik Mohammed, who is beingheld at Guantanamo Bay for alleged acts of terrorism, and in the courseof this representation McKay regularly communicates with Moham-med’s family members, experts, and investigators around the world.Attorney Sylvia Royce represents Mohammedou Ould Salahi, a Mauri-tanian national and Guantanamo Bay prisoner, who allegedly acted asa liaison between al Qaeda and German Islamic radicals. Royce com-municates information about Salahi’s case with his brother in Germany,and with her Mauritanian and French co-counsel.

Attorney Joanne Mariner, who directs Human Rights Watch’s Ter-rorism and Counterterrorism Program, which reports on human rightsabuses by governments and non-state actors throughout the world,regularly speaks with human rights researchers, translators, formerdetainees, and political activists in locations including Jordan, Egypt,Pakistan, Afghanistan, and the Gaza Strip, often in an effort to locateindividuals who the CIA has alleged are associated with terroristorganizations, or individuals whom the CIA has detained and allegedlytortured. John Walsh, who conducts research and advocacy on U.S.policy toward the Andes region for the Washington Office on LatinAmerica (“WOLA”), testifies that WOLA relies on, inter alia, Cubansources who are outspoken critics of the U.S. embargo.

Journalist Naomi Klein reports on a wide variety of internationaltopics, and in order to do so she communicates with sources abroad,including Mexican individuals regarding military activity in Chiapas,Argentinian advocates for indigenous rights, and indigenous Colombiangroups who oppose U.S. trade policies. Likewise, journalist Chris Hed-ges, whose writing focuses on American and Middle Eastern politicsand society, maintains regular contact with academics, journalists,

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The plaintiffs assert that in their electronic commu-nications with these individuals they exchange informa-tion that “constitutes ‘foreign intelligence information’within the meaning of the FAA.” The plaintiffs believethat, because of the nature of their communications withthese individuals, the communications will likely be “ac-quired, retained, analyzed, and disseminated” under theFAA.

Their fear of future surveillance, according to theplaintiffs, inflicts present injuries. For instance, in or-der to protect the confidentiality of sensitive and privi-leged communications the plaintiffs have “ceased engag-ing in certain conversations on the telephone and bye-mail,” which, in turn, “compromises [their] ability tolocate witnesses, cultivate sources, gather information,communicate confidential information to their clients,and to engage in other legitimate and constitutionallyprotected communications.” In addition, the FAA has“force[d] plaintiffs to take costly and burdensome mea-sures,” such as traveling long distances to meet person-ally with individuals.

The attorney plaintiffs assert that they are obligatedto take these measures in order to comply with their“ethical obligation to avoid communicating confidentialinformation about client matters over telephone, fax, ore-mail if they have reason to believe that it is likely to beintercepted by others.” In support of this assertion, theplaintiffs filed a declaration from Professor Stephen

politicians, and activists in places such as Iran, Syria, Libya, Kosovo,Bosnia, and Sudan. He also communicates with political activists andcivil society leaders in Palestine, whom he believes are “of interest” tothe U.S. government.

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Gillers, an expert in legal ethics, stating that it is “theduty of a lawyer to safeguard confidential information.”

Gillers attested that “[d]eterminative of how the law-yer may proceed is . . . whether the lawyer has goodreason to believe that his or her communications arereasonably likely to be intercepted, even if the intercep-tion is lawful.” He then opined that the FAA gives theattorneys sufficient reason to believe their communica-tions will be intercepted:

My opinion is that the lawyers have good reason forthis belief [that their communications with clientsand third parties in connection with client matterswill be intercepted] because of the status of theirclients, the identity and location of witnesses andsources, and the broad authority that the FAAgrants the government. The lawyers’ decision toavoid electronic means of communication is not dis-cretionary. It is obligatory.12

The government did not submit any evidence of itsown either in opposition to the plaintiffs’ submissions, orin support of its own summary judgment motion. Addi-tionally, at oral argument on the summary judgmentmotions, the government said it accepted the factual

12 It is undisputed and indisputable that attorneys have an ethicalduty to avoid disclosure of confidential information relating to therepresentation of clients. However, to the extent that Professor Gillersdeclares that the FAA creates a sufficient risk of interception to triggerthat ethical duty, that assertion relies on his analysis of how the FAAoperates, which we are not compelled to accept. It is for us to deter-mine whether it is reasonable for the attorneys (and other plaintiffs, forthat matter) to alter their behavior based on their fear that their com-munications will be intercepted. That is, ultimately, a legal determina-tion on which we need not accept, even for purposes of summary judg-ment, the correctness of plaintiffs’ submissions.

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submissions of the plaintiffs as true for purposes ofthose motions. Amnesty Int’l, 646 F. Supp. at 641. Wetherefore must accept the plaintiffs’ evidence as undis-puted explanations of how the FAA has affected them.13

D. District Court’s Summary Judgment Opinion

The district court held that the plaintiffs lackedstanding to challenge the FAA, and therefore grantedsummary judgment for defendants without reaching themerits of the plaintiffs’ claims. After identifying thethree constitutional requirements for standing—an in-jury in fact, a causal connection between the injury andthe challenged statute, and redressability—the courtstated that “[t]his case turns on whether the plaintiffshave met the irreducible constitutional minimum of per-sonal, particularized, concrete injury in fact.” Id. at 643-

13 At oral argument on this appeal, the government professed itself“puzzled” as to why the plaintiffs had not been just as nervous aboutbeing monitored before the FAA was enacted as they are now. To theextent that that statement questioned whether the plaintiffs genuinelyfear being monitored after the FAA’s enactment more than they didbefore it, the government cannot raise that challenge on appeal. Theplaintiffs’ 56.1 Statement said that “[t]he threat of surveillance underthe new law has a much greater impact on [their] work than previousU.S. government surveillance.” The time to challenge the accuracy ofthe plaintiffs’ assertions in their declarations has passed. The govern-ment could have filed its own evidence, or sought an evidentiary hearingon the accuracy of the plaintiffs’ claims, but it did neither. See Gubitosiv. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (deeming admitted allmaterial facts contained in an unopposed Rule 56.1 statement); see alsoS.D.N.Y. Local R. 56.1(c) (“Each numbered paragraph in the statementof material facts set forth in the statement required to be served by themoving party will be deemed to be admitted for purposes of the motionunless specifically controverted by a correspondingly numberedparagraph in the statement required to be served by the opposingparty.”).

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44. The court denied standing because it found that nei-ther of the plaintiffs’ asserted injuries—their actual andwell-founded fear of being monitored, and the resultingprofessional and economic costs they have incurredto protect the confidentiality of their communications—constituted the requisite injury in fact.

1. Fear of Future Surveillance

The district court found the plaintiffs’ fear of futuresurveillance too speculative to confer standing. Itstated:

The plaintiffs have failed to establish standing tochallenge the constitutionality of the FAA on the ba-sis of their fear of surveillance. The plaintiffs canonly demonstrate an abstract fear that their commu-nications will be monitored under the FAA. TheFAA creates a framework within which interveningfederal officials may apply for approval from theFISC to authorize surveillance targeting non-UnitedStates persons located outside the United States toacquire foreign intelligence information. The FAAsets forth the requirements that an application toobtain a surveillance order from the FISC must sat-isfy. Contrary to the characterization of the statutein the plaintiffs’ motion papers, the FAA itself doesnot authorize the surveillance of the plaintiffs’ com-munications. Indeed, the FAA neither authorizessurveillance nor identifies on its face a class of per-sons that includes the plaintiffs. Rather the FAAauthorizes specified federal officials to seek a sur-veillance order from the FISC. That order cannottarget the plaintiffs and whether an order will besought that affects the plaintiffs’ rights, and whether

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such an order would be granted by the FISC, is com-pletely speculative.

Id. at 645.

To arrive at this conclusion, the district court reliedon three lines of cases. First, the court looked to caseswhere plaintiffs have sought standing to challenge elec-tronic surveillance schemes, namely United Presbyte-rian Church in the U.S.A. v. Reagan, 738 F.2d 1375(D.C. Cir. 1984), and ACLU v. NSA, 493 F.3d 644 (6thCir. 2007). Both of these cases rejected the plaintiffs’standing arguments, which were based on their fear offuture injuries, because the plaintiffs’ respective fearswere too speculative. The district court found thosecases apposite and persuasive. See Amnesty Int’l, 646F. Supp. 2d at 645-47.

Second, the court examined “ ‘physical surveillancecases’ where the Supreme Court reached the merits ofchallenges to laws or policies authorizing drug or alcoholtesting for specific classes of persons, without requiringthat the plaintiffs had actually submitted to such testingbefore bringing such challenges.” Id. at 647-48. Thedistrict court held that those cases have “no applicationto this case, where the plaintiffs are not required to doanything or to submit to anything, and where there is noshowing that the Government has authorized any actionagainst [a class of persons including] the plaintiffs.” Id.at 648.

Finally, the district court examined standing casesoutside the surveillance context, and said those cases:

stand for the proposition that a plaintiff may chal-lenge a specific law or regulation before it is en-forced against the plaintiff if the plaintiff is subject

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to that law or regulation and has a well-founded fearthat it will be so enforced. The plaintiffs in this casehave made no showing that they are subject to anyspecific law or regulation that they seek to challenge.The FAA does not require that the plaintiffs do any-thing or refrain from doing anything such that theymight have a well-founded fear that the Governmentwould take action against them for failing to abide bythe statute. Moreover, the FAA does not authorizesurveillance of the plaintiffs’ communications and theplaintiffs have made no showing that the Govern-ment has sought any such surveillance pursuant tothe general framework set forth in the statute orthat such surveillance has been authorized.

Id. at 649.

2. Economic and Professional Costs Incurred toProtect Communications

As for the plaintiffs’ economic and professional costs,the court found that those injuries are “not truly inde-pendent of the [plaintiffs’] first basis” for standing, be-cause those costs “flow directly from the plaintiffs’ fearof surveillance.” Id. at 653. The court said that “[t]oallow the plaintiffs to bring this action on the basis ofsuch costs would essentially be to accept a repackagedversion of the first failed basis for standing.” Id. More-over, the court held that “because the plaintiffs havefailed to show that they are subject to the FAA and thatthey face a threat of harm from its enforcement, thechilling of their speech that they attribute to the statuteis actually the result of their purely subjective fear ofsurveillance.” Id. The court went on to state that theSupreme Court has held in Laird v. Tatum, 408 U.S. 1

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(1972), that such a subjective chill “is insufficient to sup-port standing.” Amnesty Int’l, 646 F. Supp. 2d at 653.

DISCUSSION

This opinion addresses only the question of whetherplaintiffs have standing to challenge the FAA. It doesnot address the FAA’s constitutionality. The districtcourt did not reach that issue, and the parties did notbrief it. The question before this Court is only whetherthe plaintiffs may maintain this lawsuit, a question that“in no way depends on the merits of the plaintiff ’s con-tention that particular conduct is illegal.” Warth v.Seldin, 422 U.S. 490, 500 (1975). “We review questionsof standing de novo.” Carver v. City of New York, 621F.3d 221, 225 (2d Cir. 2010).

I. Elements and Principles of Standing

Article III of the United States Constitution empow-ers federal courts to hear only “cases” and “controver-sies.” U.S. Const. art. III, § 2. Standing doctrine deter-mines “whether the plaintiff has made out a ‘case or con-troversy’ between himself and the defendant within themeaning of Art. III,” and is therefore “entitled to havethe court decide the merits of the dispute or of particu-lar issues.” Warth, 422 U.S. at 498; see also Whitmorev. Arkansas, 495 U.S. 149, 155 (1990). A citizen whodislikes a particular law may not require a court to ad-dress its constitutionality simply by stating in a com-plaint his belief, however deeply held, that the law isinconsistent with some provision of the Constitution.“[T]he [Supreme] Court has rejected all attempts to sub-stitute abstract concern with a subject . . . for the con-crete injury required by Art. III.” U.S. Parole Comm’nv. Geraghty, 445 U.S. 388, 410 (1980) (internal quotation

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marks omitted) (citing cases); see also Schlesinger v.Reservists Comm. to Stop the War, 418 U.S. 208, 220-21(1974).

The plaintiff must be affected by the law in some con-crete way. “Concrete injury, whether actual or threat-ened, is that indispensable element of a dispute whichserves in part to cast it in a form traditionally capable ofjudicial resolution.” Schlesinger, 418 U.S. at 220-21.The critical question is whether “the plaintiff has allegedsuch a personal stake in the outcome of the controversyas to warrant his invocation of federal-court jurisdic-tion.” Summers v. Earth Island Inst., 129 S. Ct. 1142,1149 (2009) (internal quotation marks and alterationsomitted).

The Supreme Court has said that “the irreducibleconstitutional minimum of standing contains three ele-ments”:

First, the plaintiff must have suffered an injury infact—an invasion of a legally protected interestwhich is (a) concrete and particularized, and(b) actual or imminent, not conjectural or hypotheti-cal.[14] Second, there must be a causal connectionbetween the injury and the conduct complainedof—the injury has to be fairly traceable to the chal-lenged action of the defendant, and not the result ofthe independent action of some third party not be-fore the court. Third, it must be likely, as opposed tomerely speculative, that the injury will be redressedby a favorable decision.

14 Where a plaintiff seeks injunctive relief, he must show that he is“under threat of suffering [an] injury in fact,” a requirement that is dis-cussed more fully below. Summers, 129 S. Ct. at 1149 (internal quo-tation marks omitted).

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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61(1992) (internal citations and punctuation omitted); ac-cord Horne v. Flores, 129 S. Ct. 2579, 2592 (2009). “Theparty invoking federal jurisdiction bears the burden ofestablishing these elements.” Lujan, 504 U.S. at 561.These requirements “assure[] that there is a real needto exercise the power of judicial review in order to pro-tect the interests of the complaining party.” Summers,129 S. Ct. at 1148 (internal quotation marks omitted).

Standing doctrine serves a number of purposes. TheSupreme Court has said standing is “built on a singlebasic idea—the idea of separation of powers.” Allen v.Wright, 468 U.S. 737, 752 (1984). “[T]he judicial powerof the United States defined by Art. III is not an uncon-ditioned authority to determine the constitutionality oflegislative or executive acts.” Hein v. Freedom FromReligion Found., 551 U.S. 587, 598 (2007) (internal quo-tation marks omitted). By limiting the exercise of judi-cial review of other branches of government to caseswhere it is necessary to protect a complaining party’sinterests, standing doctrine is “founded in concern aboutthe proper—and properly limited—role of the courts ina democratic society.” Warth, 422 U.S. at 498. If we hadno standing doctrine and instead simply allowed thecourts to “oversee legislative or executive action,” thatwould “significantly alter the allocation of power awayfrom a democratic form of government.” Summers, 129S. Ct. at 1149 (internal quotation marks and ellipsisomitted).

Standing doctrine also serves to improve judicialdecision-making by ensuring that a concrete case in-forms the court of the consequences of its decisions, andby ensuring that the party bringing the case has “such

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a personal stake in the outcome of the controversy as toassure that concrete adverseness which sharpens thepresentation of issues upon which the court so largelydepends for illumination of difficult constitutional ques-tions.” Baker v. Carr, 369 U.S. 186, 204 (1962); see alsoLujan, 504 U.S. at 581 (Kennedy, J., concurring in part)(standing requirements “preserve[] the vitality of theadversarial process by assuring both that the partiesbefore the court have an actual . . . stake in the out-come, and that the legal questions presented will be re-solved, not in the rarefied atmosphere of a debating soci-ety, but in a concrete factual context conducive to a real-istic appreciation of the consequences of judicial action”(internal quotation marks and ellipsis omitted)).15

II. Plaintiffs’ Asserted Grounds for Standing

On appeal, the plaintiffs reassert that they have suf-fered two types of injuries. First, they claim that theyfear that the government will intercept their sensitiveinternational communications, because the FAA “plainly

15 Standing has been said to serve a number of other values, as well,including: promoting judicial efficiency and effectiveness by preventingthe courts from being overwhelmed with cases where plaintiffs haveonly an ideological stake, see United States v. Richardson, 418 U.S. 166,192 (1974) (Powell, J., concurring) (“[W]e risk a progressive impairmentof the effectiveness of the federal courts if their limited resources arediverted increasingly from their historic role to the resolution of public-interest suits brought by litigants who cannot distinguish themselvesfrom all taxpayers or all citizens.”); and promoting fairness, by ensuringthat plaintiffs enforce only their own rights rather than third parties’rights, see Singleton v. Wulff, 428 U.S. 106, 113-14 (1976) (“First, thecourts should not adjudicate such rights unnecessarily, and it may bethat in fact the holders of those rights either do not wish to assert them,or will be able to enjoy them regardless of whether the in-court litigantis successful or not. Second, third parties themselves usually will be thebest proponents of their own rights.” (citation omitted)).

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authorizes the acquisition of [their] international com-munications,” and their communications are “likely to bemonitored under it.” Second, they claim that anticipa-tion of this future injury also inflicts a present injury“by compelling them to take costly and burdensomemeasures to protect the confidentiality of their interna-tional communications” and by compromising their“ability to locate witnesses, cultivate sources, gatherinformation, communicate confidential information totheir clients, and to engage in other legitimate and con-stitutionally protected communications.”

The district court and the parties have focused onwhether the plaintiffs’ asserted injuries satisfy the in-jury-in-fact component of the standing inquiry. Al-though they are correct that the plaintiffs’ first assertedinjury—the possibility of being monitored in the future—raises a question of injury in fact, because probabilis-tic injuries constitute injuries in fact only when theyreach a certain threshold of likelihood, see City of LosAngeles v. Lyons, 461 U.S. 95, 107 n.8 (1983), the plain-tiffs’ second asserted injury alleges the most mundaneof injuries in fact: the expenditure of funds. The plain-tiffs’ declarations, which, as discussed above, we mustaccept as true, establish that they have already incurredprofessional and economic costs to avoid interception.Having accepted the truthfulness of the plaintiffs’ decla-rations for purposes of the summary judgment motion,the government cannot now dispute whether the plain-tiffs genuinely fear being intercepted, or whether theplaintiffs have actually incurred the costs they claim tohave incurred. Thus, we have little doubt that the plain-tiffs have satisfied the injury-in-fact requirement.

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As to the second asserted injury—their present-injury theory—that the plaintiffs have demonstratedinjuries in fact is not sufficient in itself to establishstanding. The plaintiffs must also prove that the inju-ries are caused by the challenged statute and that a fa-vorable judgment would redress them. The govern-ment’s challenge to the plaintiffs’ standing based ontheir incurred professional and economic costs focuseson whether there is a “causal connection between [theplaintiffs’] injury and the [legislation] complained of.”Lujan, 504 U.S. at 560. The causal chain can be brokenwhere a plaintiff ’s self-inflicted injury results from his“unreasonable decision . . . to bring about a harm thathe knew to be avoidable.” St. Pierre v. Dyer, 208 F.3d394, 403 (2d Cir. 2000). However, “[s]tanding is not de-feated merely because the plaintiff has in some sensecontributed to his own injury. . . . Standing is defeatedonly if it is concluded that the injury is so completelydue to the plaintiff ’s own fault as to break the causalchain.” 13A Charles Alan Wright, Arthur R. Miller &Edward H. Cooper, Federal Practice and Procedure§ 3531.5, at 361-62 (3d ed. 2008) (footnotes omitted).

If the plaintiffs can show that it was not unreason-able for them to incur costs out of fear that the govern-ment will intercept their communications under theFAA, then the measures they took to avoid interceptioncan support standing. If the possibility of interceptionis remote or fanciful, however, their present-injury the-ory fails because the plaintiffs would have no reasonablebasis for fearing interception under the FAA, and theycannot bootstrap their way into standing by unreason-ably incurring costs to avoid a merely speculative orhighly unlikely potential harm. Any such costs would begratuitous, and any ethical concerns about not taking

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those measures would be unfounded. In other words,for the purpose of standing, although the plaintiffs’ eco-nomic and professional injuries are injuries in fact, theycannot be said to be “fairly traceable” to the FAA—andcannot support standing—if they are caused by a fanci-ful, paranoid, or otherwise unreasonable fear of theFAA. “If causation is to be required at all, it should de-mand a meaningful level of probability,” but “[a]s withother elements of standing, the showing required mightbe tailored to the other facts that make it more or lessappropriate to decide the case.” Wright, Miller & Coo-per, supra, § 3531.5, at 328.

Here, the plaintiffs’ actions were “fairly traceable” tothe FAA. Because, as we shall explain, the plaintiffs’fears were reasonable even under the stringent reason-ableness standards found in future-injury cases, andbecause the plaintiffs incurred these professional andeconomic costs as a direct result of that reasonable fear,their present injuries in fact clearly satisfy the require-ments for standing. We therefore need not and do notdecide whether the degree of likelihood necessary toestablish a causal relationship between an actual presentinjury and the challenged governmental action is asstringent as that necessary for a potential harm in itselfto confer standing. However, the line of future-injurystanding cases provides a helpful framework for analyz-ing the plaintiffs’ present-injury arguments. Thosecases bolster our conclusion that the professional andeconomic harms the plaintiffs suffered here were fairlytraceable to the FAA, and were not the result of an “un-reasonable decision” on their part “to bring about aharm that [they] knew to be avoidable.” St. Pierre, 208F.3d at 403.

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In addition to their present-injury theory, the plain-tiffs advance a future-injury theory of standing. A fu-ture injury or threat of injury does not confer standingif it is “conjectural or hypothetical” and not “real andimmediate.” See O’Shea v. Littleton, 414 U.S. 488, 494(1974) (internal quotation marks omitted). To determinewhether the plaintiffs have standing under their fu-ture-injury theory, we would need to determine whetherthe FAA creates an objectively reasonable likelihoodthat the plaintiffs’ communications are being or will bemonitored under the FAA. As noted above, we concludethat the future injuries alleged by the plaintiffs are in-deed sufficiently likely to confer standing under the testestablished in the case law for basing standing on therisk of future harm.

The government’s first argument against the plain-tiffs’ standing—on both theories—is that the FAA doesnot create a sufficiently high likelihood that those com-munications will be monitored. In our judgment, how-ever, for the reasons set forth in Part III, below, theplaintiffs have established that they reasonably fearbeing monitored under the allegedly unconstitutionalFAA, and that they have undertaken costly measuresto avoid it. Those present injuries—fairly traceable tothe FAA and likely to be redressable by a favorablejudgment—support the plaintiffs’ standing to challengethe statute.

The government next argues that the plaintiffs lackstanding because any injury they suffer is indirect. Thatis, the government contends that because the FAA doesnot directly target the plaintiffs, any injury the plaintiffssuffer is a result of their reaction to the government’spotential monitoring of third parties. The government

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essentially argues that this indirectness defeats theplaintiffs’ standing because it attenuates the causalchain linking the plaintiffs’ injuries to the FAA. For thereasons set forth in Part IV, below, we disagree.

III. Likelihood of Government Action

The government argues that the plaintiffs can obtainstanding only by showing either that they have beenmonitored or that it is “effectively certain” that they willbe monitored. The plaintiffs fall short of this standard,according to the government, because they “simply spec-ulate that they will be subjected to governmental actiontaken pursuant to [the FAA].”

But the government overstates the standard for de-termining when a present injury linked to a contingentfuture injury can support standing. The plaintiffs havedemonstrated that they suffered present injuries infact—concrete economic and professional harms—thatare fairly traceable to the FAA and redressable by afavorable judgment. The plaintiffs need not show thatthey have been or certainly will be monitored. Indeed,even in cases where plaintiffs allege an injury basedsolely on prospective government action, they need onlyshow a “realistic danger” of “direct injury,” Babbitt v.United Farm Workers Nat’l Union, 442 U.S. 289, 298(1979); and where they allege a prospective injury toFirst Amendment rights, they must show only “ ‘an ac-tual and well-founded fear’ ” of injury, Vt. Right to LifeComm. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000), quot-ing Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393(1988), an arguably less demanding standard.16

16 For a comparison of the “realistic danger” and “well-founded fear”standards, see Amnesty Int’l, 646 F. Supp. 2d at 644 n.12. We do not

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A. Standard

When a plaintiff asserts a present injury based onconduct taken in anticipation of future government ac-tion, we evaluate the likelihood that the future actionwill in fact come to pass. To determine whether thepresent injury “fairly can be traced to the challenged[future] action,” see Simon v. Eastern Ky. WelfareRights Org., 426 U.S. 26, 38 (1976), we must considerwhether a plaintiff ’s present injury resulted from someirrational or otherwise clearly unreasonable fear of fu-ture government action that is unlikely to take place.Such a disconnect between the present injury and pre-dicted future government action would break the causalchain required for standing.

In this context, cases that discuss whether a poten-tial future harm is sufficiently likely such that thechance of that future harm constitutes an injury in factcan provide some guidance for determining whether theplaintiffs have satisfied the causation requirement forstanding where their assertions of present and ongoinginjuries stem, in part, from a desire to avoid potentialfuture injuries.17

discuss the distinction here, because it does not determine the outcomeof this case.

17 By analyzing the plaintiffs’ allegations of present injury in termsof cases relating to future harms, we do not suggest that actual presentinjuries may only be traced to governmental action when the causalconnection is as strong as the likelihood of injury required to basestanding on contingent future harms. Rather, we use those cases, andthe stringent reasonableness standards they impose for future-injurystanding, to demonstrate just how strong the plaintiffs’ present-injurystanding claims here truly are.

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In Lyons, the seminal case on standing based onprobabilistic or prospective harm, the plaintiff sued theCity of Los Angeles and certain police officers allegingthat officers stopped him for a traffic violation and, with-out provocation, applied a chokehold, rendering him un-conscious and damaging his larynx. Lyons, 461 U.S. at97-98. In addition to seeking damages, he sought to en-join police officers’ use of chokeholds. Id. at 98.

The Court said, “Lyons’ standing to seek the injunc-tion requested depended on whether he was likely tosuffer future injury from the use of the chokeholds bypolice officers,” id. at 105, emphasizing that “[t]he rea-sonableness of [the plaintiff ’s] fear [of future injury] isdependent upon the likelihood of a recurrence of theallegedly unlawful conduct. It is the reality of thethreat of repeated injury that is relevant to the standinginquiry, not the plaintiff ’s subjective apprehensions.”Id. at 107 n.8 (emphasis in original).

The Court held that Lyons lacked standing to pursueinjunctive relief, because he did not show a sufficientlikelihood that he would be injured. Id. at 111-12. Itsaid, “[w]e cannot agree that the odds that Lyons wouldnot only again be stopped for a traffic violation butwould also be subjected to a chokehold without anyprovocation whatsoever are sufficient to make out a fed-eral case for equitable relief.” Id. at 108 (internal cita-tion and quotation marks omitted). Without a “sufficientlikelihood that he will again be wronged in a similarway,” Lyons was “no more entitled to an injunction thanany other citizen of Los Angeles; and a federal courtmay not entertain a claim by any or all citizens who nomore than assert that certain practices of law enforce-ment officers are unconstitutional.” Id. at 111.

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Although the plaintiff in Lyons lacked standing, thatcase clearly articulated the principle that a plaintiff mayobtain standing by showing a sufficient likelihood of fu-ture injury. Indeed, the Court stated that Lyons wouldhave established standing if he had been able to allegefacts that would have made his injury sufficientlylikely—such as another encounter with the police or acity policy authorizing police officers to engage in theconduct he feared.18

This Court has articulated the principle of Lyons asrequiring an inquiry into the probability of future harm.In Curtis v. City of New Haven, 726 F.2d 65 (2d Cir.1984), where plaintiffs sought to enjoin police officers’use of mace in certain circumstances because officersstopped them, maced them, and gave them no treatmentafterward, we denied standing, holding that “the Courtmade clear in Lyons that the critical inquiry is the like-lihood that these plaintiffs will again be illegally as-saulted with mace.” Id. at 68 (emphasis supplied).19

18 The Court stated:

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

Lyons, 461 U.S. at 105-06.19 For examples of cases where courts have granted standing based

on probabilistic injuries, see Davis v. FEC, 554 U.S. 724, 735 (2008)(granting standing to congressional candidate to challenge campaignfinance law that raised restrictions on contributions to competitors incertain circumstances, despite the fact that the raised restrictions hadnot yet been triggered when plaintiff filed suit, because “the record at

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Assessing whether a threatened injury, by itself,is sufficiently probable to support standing is a “qualita-tive, not quantitative” inquiry that is “highly case-specific.” Baur v. Veneman, 352 F.3d 625, 637 (2d Cir.2003) (internal quotation marks omitted). “[T]he ques-tion of whether anticipated future injury suffices to es-tablish standing is approached as a question of judgmentand degrees.” Wright, Miller & Cooper, supra, § 3531.4,at 264. Indeed, in future-injury cases, we have said that“the risk of harm necessary to support standing cannotbe defined according to a universal standard.” Baur,352 F.3d at 637.

One factor that bolsters a plaintiff ’s argument thatthe injury is likely to come to pass, according to both theSupreme Court and this Court, is the existence of a pol-

summary judgment indicated that most candidates who had the oppor-tunity to receive expanded contributions had done so”); Pennell v. Cityof San Jose, 485 U.S. 1, 8 (1988) (“The likelihood of enforcement, withthe concomitant probability that a landlord’s rent will be reduced belowwhat he or she would otherwise be able to obtain in the absence of theOrdinance, is a sufficient threat of actual injury to satisfy Art. III’srequirement that a plaintiff who challenges a statute must demonstratea realistic danger of sustaining a direct injury as a result of the statute’soperation or enforcement.” (internal quotation marks and bracketomitted)); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438U.S. 59, 74 (1978) (granting plaintiffs standing to challenge statute thatcapped liability for nuclear reactor accidents, because statute createdincentives for defendant to build and operate nearby nuclear reactorthat would release small quantities of radiation into the air and water,and injury from that radiation was “uncertain[]” but sufficiently likely);Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003) (granting plaintiff stand-ing to challenge regulation that allowed downed cattle to be processedfor human consumption, because it increased chances of plaintiff con-tracting disease from such meat).

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icy that authorizes the potentially harmful conduct.20

However, the cases do not establish any talismanic,dispositive facts a plaintiff must plead in order to estab-lish a certain threshold of probability. Some cases sug-gest that the risk of that harm need not be particularlyhigh. See Massachusetts v. EPA, 549 U.S. 497, 525 n.23(2007) (quoting Vill. of Elk Grove v. Evans, 997 F.2d328, 329 (7th Cir. 1993), as holding that “even a smallprobability of injury is sufficient to create a case orcontroversy—to take a suit out of the category of thehypothetical”). The probability required “logically var-ies with the severity of the probable harm.” Baur, 352F.3d at 637. Ultimately, courts consider the totality ofthe circumstances, and where a “plaintiff ’s interpreta-tion of a statute is ‘reasonable enough’ and under that

20 See Lyons, 461 U.S. at 106 (Lyons would have had standing if hecould have alleged that he would have another encounter with the policeand “that the City ordered or authorized police officers to act in suchmanner.”); Baur, 352 F.3d at 637 (granting plaintiff standing primarilyon two “critical factors”: (1) government studies and comments con-firmed several of the plaintiff ’s central allegations; and (2) his “allegedrisk of harm arises from an established government policy”); DeshawnE. by Charlotte E. v. Safir, 156 F.3d 340, 345 (2d Cir. 1998) (findingstanding for plaintiffs—a certified class of children arrested on possibledelinquency charges who challenged the policies and practices of adetective squad’s interrogation of children facing possible delinquencycharges—in part because the challenged interrogation methods “areofficially endorsed policies,” which creates “a likelihood of recurring in-jury because the Squad’s activities are authorized by a written memor-andum of understanding between the Corporation Counsel and thePolice Commissioner”); Curtis, 726 F.2d at 68 (denying plaintiffs stand-ing because no city policy authorized police officers to act the way theplaintiffs alleged they had acted, and the “plaintiffs have not allegedthat it is likely that they will be stopped by City police in the future and,for no reason and without provocation, assaulted with mace and notgiven treatment afterward”).

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interpretation the plaintiff ‘may legitimately fear that itwill face enforcement of the statute,’ then the plaintiffhas standing to challenge the statute.” Pac. CapitalBank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir.2008), quoting Vt. Right to Life, 221 F.3d at 383.

B. Application

The plaintiffs have established that they sufferedpresent injuries in fact—economic and professionalharms—stemming from a reasonable fear of futureharmful government conduct. They have asserted thatthe FAA permits broad monitoring through mass sur-veillance orders that authorize the government to collectthousands or millions of communications, including com-munications between the plaintiffs and their overseascontacts. The FAA is susceptible to such an interpreta-tion, and the government has not controverted this in-terpretation or offered a more compelling one.21

It is significant that the injury that the plaintiffs fearresults from conduct that is authorized by statute. Thiscase is not like Lyons, where the plaintiff feared injuryfrom officers who would have been acting outside thelaw, making the injury less likely to occur. Here, thefact that the government has authorized the potentiallyharmful conduct means that the plaintiffs can reason-ably assume that government officials will actually en-gage in that conduct by carrying out the authorized sur-

21 At oral argument, the government contended that required minimi-zation procedures combined with the fact that the government mustconvince an Article III judge to approve any surveillance order “makesless certain the injury here.” This line of argument might shed light onthe merits—on whether the government surveillance authorized by theFAA is consistent with the Constitution—but it does not directly dis-pute the plaintiffs’ interpretation of the FAA’s scope.

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veillance. It is fanciful, moreover, to question whetherthe government will ever undertake broad-based sur-veillance of the type authorized by the statute. TheFAA was passed specifically to permit surveillance thatwas not permitted by FISA but that was believed neces-sary to protect the national security. See, e.g., 154 Cong.Rec. S227, 227-28 (daily ed. Jan. 24, 2008) (statement ofSen. Rockefeller) (explaining “why it is necessary for usto update” FISA); id. at 235 (statement of Sen. Hutchi-son) (explaining why surveillance authorization proce-dures must be updated). That both the Executive andthe Legislative branches of government believe that theFAA authorizes new types of surveillance, and have jus-tified that new authorization as necessary to protectingthe nation against attack, makes it extremely likely thatsuch surveillance will occur.

Furthermore, the plaintiffs have good reason to be-lieve that their communications, in particular, will fallwithin the scope of the broad surveillance that they canassume the government will conduct. The plaintiffs tes-tify that in order to carry out their jobs they must regu-larly communicate by telephone and e-mail with pre-cisely the sorts of individuals that the government willmost likely seek to monitor—i.e., individuals “the U.S.government believes or believed to be associated withterrorist organizations,” “political and human rightsactivists who oppose governments that are supportedeconomically or militarily by the U.S. government,” and“people located in geographic areas that are a specialfocus of the U.S. government’s counterterrorism or dip-lomatic efforts.” The plaintiffs’ assessment that theseindividuals are likely targets of FAA surveillance is rea-sonable, and the government has not disputed that as-sertion.

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On these facts, it is reasonably likely that the plain-tiffs’ communications will be monitored under the FAA.The instant plaintiffs’ fears of surveillance are by nomeans based on “mere conjecture,” delusional fantasy,or unfounded speculation. Baur, 352 F.3d at 636 (to es-tablish standing, a plaintiff “must allege that he faces adirect risk of harm which rises above mere conjecture”).Their fears are fairly traceable to the FAA because theyare based on a reasonable interpretation of the chal-lenged statute and a realistic understanding of theworld. Conferring standing on these plaintiffs is nottantamount to conferring standing on “any or all citizenswho no more than assert that certain practices of lawenforcement offices are unconstitutional.” Lyons, 461U.S. at 111. Most law-abiding citizens have no occasionto communicate with suspected terrorists; relativelyfew Americans have occasion to engage in internation-al communications relevant to “foreign intelligence.”These plaintiffs however, have successfully demonstrat-ed that their legitimate professions make it quite likelythat their communications will be intercepted if thegovernment—as seems inevitable—exercises the author-ity granted by the FAA.

The government argues the plaintiffs have failed toestablish standing because the FAA does not itself au-thorize surveillance, but only authorizes the FISC toauthorize surveillance. As a result, the government saysthe plaintiffs must speculate about at least two interven-ing steps between the FAA and any harm they mightsuffer as a result of the government conducting surveil-lance: first, that the government will apply for surveil-lance authorization under the FAA, and, second, that theFISC will grant authorization.

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But this argument fails. The presence of an inter-vening step does not, as a general rule, by itself precludestanding.22 Nor do the particular intervening steps thegovernment identifies here—the government’s seekingauthorization and the FISC’s approving it—precludestanding. With respect to the first step, as discussedabove, it is more than reasonable to expect that the gov-ernment will seek surveillance authorization under theFAA. We therefore cannot say that uncertainty aboutthis step significantly attenuates the link between theFAA and the plaintiffs’ harms.

Nor does the second intervening step add significantuncertainty. As discussed above, under the FAA theFISC must enter an order authorizing surveillance if thegovernment submits a certification that conforms to thestatutory requirements. See 50 U.S.C. § 1881a(g)(2)(A),1881a(i)(3)(A). The FAA does not require or even per-mit the FISC to make an independent determination of

22 See, e.g., Massachusetts v. EPA, 549 U.S. at 516-26 (grantingplaintiff-state standing to challenge EPA’s failure to regulate green-house gas emissions from new vehicles because those emissions con-tribute to global warming, which contributes to a rise in sea level, whichcauses more frequent and severe flooding, which damages coastal infra-structure); United States v. Students Challenging Regulatory AgencyProcedures (SCRAP), 412 U.S. 669, 678, 683-90 (1973) (granting plain-tiffs standing to challenge increase in railroad rate because it would de-crease use of recycled products, which would adversely affect environ-ment near plaintiffs and would impair plaintiffs’ use of nearby forests,streams, and mountains); Pacific Capital Bank, N.A. v. Connecticut,542 F.3d 341, 350 (2d Cir. 2008) (“A plaintiff may satisfy the causationrequirement if the complaint avers the existence of an intermediate linkbetween the state regulations and the injury.” (internal quotationmarks and brackets omitted)); Baur, 352 F.3d at 641 (granting plaintiffstanding despite the fact that a “chain of contingencies may need to oc-cur” for plaintiff to sustain feared injury).

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the necessity or justification for the surveillance. Itverges on the fanciful to suggest that the governmentwill more than rarely fail to comply with the formal re-quirements of the FAA once it has decided that the sur-veillance is warranted.

Empirical evidence supports this expectation: in2008, the government sought 2,082 surveillance orders,and the FISC approved 2,081 of them. We do not knowhow many of these applications, if any, came after theFAA was enacted on July 10, 2008. At the very least,though, the evidence does not show that the FISC actu-ally rejects a significant number of applications for FAAsurveillance orders.23 Without a stronger showing thatthe FISC interposes a significant intervening step, wecannot find that the mere existence of this interveningstep prevents the plaintiffs from obtaining standing tochallenge the FAA.

Because the plaintiffs’ undisputed testimony clearlyestablishes that they are suffering injuries in fact, andbecause we find those injuries are causally connected tothe FAA—because they are taken in anticipation of fu-ture government action that is reasonably likely to

23 Moreover, under the FAA the government can often conduct sur-veillance without FISC authorization. In exigent circumstances, for ex-ample, the government may start wiretapping before applying for FISCauthorization, so long as the government applies for authorization with-in 7 days. 50 U.S.C. § 1881a(c)(2), 1881a(g)(1)(B). In addition, if theFISC denies any application for a surveillance order, the governmentmay conduct the applied-for surveillance while it appeals the FISCdenial. 50 U.S.C. § 1881a(i)(4)(B).

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occur—and are redressable by a favorable judgment,24

we find the plaintiffs have standing.

IV. Indirectness of Harm

The plaintiffs’ asserted economic and professionalcosts incurred to protect the confidentiality of their com-munications can be characterized as indirect injuries,because the FAA does not target the plaintiffs them-selves and the plaintiffs incur injuries due to their re-sponses, and the responses of the third-party individualswith whom they communicate, to the anticipatedFAA-authorized surveillance of those individuals. Thegovernment argues that the indirectness of these inju-ries defeats the plaintiffs’ standing. We disagree.

A. Standard

The Supreme Court has made clear that “when theplaintiff is not himself the object of the government ac-

24 Neither the district court nor the parties discuss the third constitu-tional standing requirement—redressability—in any depth. To demon-strate redressability, “a plaintiff must show the substantial likelihoodthat the requested relief will remedy the alleged injury in fact.” Mc-Connell v. FEC, 540 U.S. 93, 225-26 (2003), overruled on other groundsby Citizens United v. FEC, 130 S. Ct. 876 (2010); see also Larson v. Val-ente, 456 U.S. 228, 243 n.15 (1982) (“[A] plaintiff satisfies the redress-ability requirement when he shows that a favorable decision will relievea discrete injury to himself.”). The requirement turns on the “causalconnection between the alleged injury and the judicial relief requested.”Allen v. Wright, 468 U.S. 737, 753 n.19 (1984). The plaintiffs have estab-lished that the relief they seek would redress their asserted injuries infact, because their injuries stem from their reasonable fear of beingmonitored by FAA-authorized government surveillance, and if a courtgrants their requested relief—an injunction prohibiting the governmentfrom conducting surveillance under the FAA—the feared surveillancewould no longer be permitted and therefore would, presumably, nolonger be carried out.

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tion or inaction he challenges, standing is not pre-cluded.” Summers, 129 S. Ct. at 1149 (2009) (internalquotation marks, brackets, and citation omitted); seealso Lujan, 504 U.S. at 562; accord Garelick v. Sullivan,987 F.2d 913, 919 (2d Cir. 1993) (“A plaintiff does notlack standing merely because her injury is an indirectproduct of the defendant’s conduct.”). But a plaintiffwho is indirectly harmed by a regulation needs to showmore than does a plaintiff who is directly regulated bythe challenged law:

When the suit is one challenging the legality of gov-ernment action . . . , the nature and extent of factsthat must be averred (at the summary judgmentstage) . . . in order to establish standing dependsconsiderably upon whether the plaintiff is himself anobject of the action . . . at issue. If he is, there isordinarily little question that the action or inactionhas caused him injury, and that a judgment prevent-ing or requiring the action will redress it. When,however, . . . a plaintiff ’s asserted injury arisesfrom the government’s allegedly unlawful regulation. . . of someone else, much more is needed.

Lujan, 504 U.S. at 561-62 (emphasis in original). It istherefore “ordinarily substantially more difficult” toestablish standing based on indirect injuries than ondirect injuries. Summers, 129 S. Ct. at 1149 (internalquotation marks omitted).

As a fundamental requisite to establishing standing,a plaintiff seeking standing on the basis of indirect in-jury must satisfy the three constitutional requirementsfor standing discussed above: (1) an injury in fact(2) that is causally related to the challenged statute orconduct and (3) is likely to be redressed by a favorable

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judicial decision. See Lujan, 504 U.S. at 560-61; DukePower, 438 U.S. at 72. Despite not being directly regu-lated, a plaintiff may establish a cognizable injury in factby showing that he has altered or ceased conduct as areasonable response to the challenged statute. See, e.g.,Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528U.S. 167, 184-85 (2000) (granting environmental groupsstanding to sue a corporation under the Clean Water Actbecause the defendant corporation’s alleged environ-mental damage deterred members of the plaintiff orga-nizations from using and enjoying certain lands andrivers). If the plaintiff makes such an allegation, hemust identify the injury with “specificity,” SocialistWorkers Party v. Att’y Gen., 419 U.S. 1314, 1319 (1974)(Marshall, Circuit Justice), and he “must proffer someobjective evidence to substantiate his claim that thechallenged conduct has deterred him from engaging inprotected activity,” Bordell v. Gen. Elec. Co., 922 F.2d1057, 1061 (2d Cir. 1991).

The plaintiffs have satisfied these requirementsthrough their uncontroverted testimony that they havealtered their conduct and thereby incurred specific costsin response to the FAA. As discussed above, we mustaccept that undisputed testimony, so the plaintiffs haveestablished the first constitutional requirement forstanding—an injury in fact.

The heart of the government’s challenge to the plain-tiffs’ standing based on the indirectness of their injury—much like the government’s challenge to the plaintiffs’standing based on the likelihood of future injury—goesto whether the plaintiffs’ injuries are causally connectedto the challenged legislation. The causal chain linkingthe plaintiffs’ indirect injuries to the challenged legisla-

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tion is similar to that discussed above: it turns on thelikelihood that the plaintiffs’ communications with theregulated third parties will be monitored. If the FAAdoes not make it likely that the plaintiffs’ communica-tions with regulated third parties will be monitored,then the costs the plaintiffs have incurred to avoid beingmonitored are the product of their own decisions and arenot sufficiently linked to the FAA; for this reason, theywould not be “fairly traceable to the challenged action,”Lujan, 504 U.S. at 560. Conversely, if the plaintiffs’communications with regulated third parties will likelybe monitored despite the fact that the FAA does notdirectly regulate the plaintiffs, then those costs are suf-ficiently tied to the FAA to support standing.

The Supreme Court and this Court have frequentlyfound standing on the part of plaintiffs who were notdirectly subject to a statute, and asserted only indirectinjuries. Most notably, in Meese v. Keene, 481 U.S. 465(1987), the Supreme Court found standing in a plaintiffwho, like the instant plaintiffs, was not directly regu-lated by the statute, and alleged only indirect injuries.The plaintiff, a lawyer and state legislator, challenged astatute that required certain films to be labeled “politi-cal propaganda.” Id. at 467. The district court in thatcase made clear that “[a]ccording to the authoritativeagency interpretation of the Act and the regulations,plaintiff [wa]s free to remove the [‘political propaganda’]label before exhibiting the films.” Keene v. Smith, 569F. Supp. 1513, 1516 (E.D. Cal. 1983); see also id. at 1519(“[P]laintiff has no obligation with respect to the label,and . . . is free to remove the label if he chooses.”).Hence, as in the instant case, the Meese statute did notdirectly regulate the plaintiff or require him to do, orrefrain from doing, anything at all. The Meese plaintiff,

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however, was injured indirectly. He wanted to showthree labeled films, but because he did “not want theDepartment of Justice and the public to regard him asthe disseminator of foreign political propaganda,” heabstained from screening the films. Meese, 481 U.S. at467-68. He sued to enjoin the application of the statuteto these films.

That the statute did not regulate him directly was nobarrier to standing. The Court found he had establisheda cognizable harm by alleging “the need to take . . .affirmative steps to avoid the risk of harm to his reputa-tion.” Id. at 475. This reaction was reasonable and wascausally linked to the statute, because the plaintiffaverred, with support from expert affidavits, that if heshowed the films “his personal, political, and profes-sional reputation would suffer and his ability to obtainre-election and to practice his profession would be im-paired.” Id. at 473. The Court approved the districtcourt’s conclusion that “the Act puts the plaintiff to theHobson’s choice of foregoing the use of the three Cana-dian films for the exposition of his own views or suffer-ing an injury to his reputation.” Id. at 475 (internal quo-tation marks omitted). Either way, the statute affectedhim in such a way as to give him standing to challenge it.

More recently, in Friends of the Earth v. Laidlaw,the Supreme Court recognized plaintiffs’ standing tochallenge a corporation’s alleged Clean Water Act viola-tion. The plaintiffs did not claim that the defendant tookdirect actions against them. Instead, they showed thatbecause they feared exposure to the defendant’s pollu-tion they had ceased to engage in certain recreationalactivities in the area, such as swimming, camping, andbirdwatching. Friends of the Earth, 528 U.S. at 181-82.

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The Court found that the plaintiffs’ decision to curtailthose activities was “enough for injury in fact,” andfound that the plaintiffs’ reactions were reasonable re-sponses to the threat of exposure to pollution. Id. at183-85.25

These cases establish that a plaintiff has standing tochallenge a statute that does not regulate him if he canshow that the statute reasonably caused him to alter orcease certain conduct. In the instant case, the key todetermining whether the plaintiffs have standing basedon the indirect injuries they suffer is determiningwhether someone who wants to protect the privacy of hiscommunications would reasonably take the measuresthese plaintiffs took not to be overheard.

25 For other examples of cases finding standing in plaintiffs who werenot directly regulated by the statutes they challenged and who assertedindirect injuries, see Massachusetts v. EPA, 549 U.S. at 521-26 (grant-ing State of Massachusetts standing to challenge EPA’s refusal toregulate greenhouse gas emissions because those emissions contributeto global warming, which contributes to a rise in sea level, which causesmore frequent and severe flooding, which damages coastal infrastruc-ture); Duke Power, 438 U.S. at 73-78 (granting organizations and indi-viduals standing to challenge statute that capped liability for nuclearreactor accidents, because statute created incentives for defendant tobuild and operate nearby nuclear reactor that would release smallquantities of radiation that would potentially have aesthetic, environ-mental, and health affects); SCRAP, 412 U.S. at 678, 683-90 (grantingenvironmental group standing to challenge increase in railroad rate be-cause it would decrease use of recycled products, which would adverselyaffect environment near plaintiffs and would impair plaintiffs’ use ofnearby forests, streams, mountains); Baur, 352 F.3d at 632-36 (grantingindividual standing to challenge FDA regulations of meat producersand processors based on alleged increased risk of contracting a food-borne illness).

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B. Application

First, it is reasonable for the plaintiffs to take mea-sures to avoid being overheard. The plaintiffs have es-tablished that, because of their legitimate needs to com-municate with persons who will likely be subject to gov-ernment surveillance under the FAA, they are likely tobe monitored. Moreover, the various groups of plain-tiffs—attorneys, journalists, and human rights, labor,legal, and media organizations—have established thatthey have legitimate interests in not being monitored.Since the plaintiffs allege that the FAA is unconstitu-tional, if the plaintiffs’ legal theory is correct, any searchauthorized by the FAA would be an illegal search thatthe plaintiffs would reasonably try to avoid.26

Moreover, each of the plaintiffs has alleged that therisk of being monitored causes additional injuries be-yond the mere fact of being subjected to a putativelyunconstitutional invasion of privacy. The risk of beingmonitored by the government threatens the safety oftheir sources and clients, impedes their ability to dotheir jobs, and implicates the attorneys’ ethical obliga-tions. Journalists Klein and Hedges, for example, assertthat if their communications with their sources wereoverheard, those sources’ identities, political activities,and other sensitive information would be disclosed,which would expose them to violence and retaliation bytheir own governments, non-state actors, and the U.S.

26 We emphasize again that we express no view with respect to theultimate correctness of the plaintiffs’ argument that the FAA violatesthe Constitution. The only issue here is whether the plaintiffs havestanding to present their argument to a court. That question requiresus to ask whether the statute, if it is unconstitutional, would inflict anyinjury on the plaintiffs.

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government. Likewise, attorney Mariner asserts that ifher communications with human rights abuse victims onbehalf of Human Rights Watch are monitored, the vic-tims will draw unwanted attention to themselves andmight risk further abuse. Attorneys Royce and McKay,who represent Guantanamo Bay prisoners and others,assert that they risk disclosing litigation strategiesto the opposing party (the U.S. government) and violat-ing ethical obligations if their communications with co-counsel, clients and their family members, experts, andinvestigators around the world are monitored.27 Theplaintiffs act reasonably in trying to avoid these injuries.

Since it is reasonable for the plaintiffs to seek toavoid being monitored, we must consider whether theparticular measures they took were reasonable. Theywere. In some instances the plaintiffs did not communi-cate certain information they otherwise would have com-municated by e-mail or telephone; and in other instancesthey incurred the costly burdens of traveling to commu-nicate or to obtain that information in person ratherthan electronically. These are not overreactions to the

27 Both the attorneys and the non-attorneys have reason to fear beingmonitored under the challenged statute, so both categories of plaintiffsare justified in taking measures to avoid this injury. The attorneys ar-gue that their ethical duty obligates them to incur these expenses. Thatis true, but it does not entitle the attorneys to special treatment in thisstanding inquiry. The attorneys’ ethical duty is triggered only when therisk of surveillance reaches a certain threshold of likeliness. But whenthat threshold is met, as it has been here, the non-attorney plaintiffsalso have reason to fear being monitored, and they are equally justifiedin taking measures to avoid what they contend is an illegal search. Thefact that an ethical obligation compels the attorneys to take avoidancemeasures does not mean that their taking those measures, in itself, isany more reasonable than the other plaintiffs taking similar measuresfor reasons other than ethical concerns.

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FAA; they are appropriate measures that a reasonablyprudent person who plausibly anticipates that his con-versations are likely to be monitored, and who finds itimportant to avoid such monitoring, would take to avoidbeing overheard. The plaintiffs have therefore estab-lished that those injuries are linked to the statute theychallenge.

In sum, the FAA has put the plaintiffs in a lose-losesituation: either they can continue to communicate sen-sitive information electronically and bear a substantialrisk of being monitored under a statute they allege to beunconstitutional, or they can incur financial and profes-sional costs to avoid being monitored. Either way, theFAA directly affects them.28

The Supreme Court has said that “the gist of thequestion of standing” is whether “the appellants allegedsuch a personal stake in the outcome of the controversyas to assure that concrete adverseness which sharpensthe presentation of issues upon which the court solargely depends for illumination of difficult constitu-tional questions.” Baker, 369 U.S. at 204. The instantplaintiffs are not merely random citizens, indistinguish-able from any other members of the public, who want totest in court the abstract theory that the FAA is incon-sistent with the Constitution; rather, these plaintiffshave shown that, regardless of which course of actionthey elect, the FAA affects them. We therefore con-

28 See Meese, 481 U.S. at 475 (approving the district court’s analysisthat the plaintiffs have met the standing requirement, in part, becausethe challenged statute “puts the plaintiff to the Hobson’s choice of fore-going the use of the three Canadian films for the exposition of his ownviews or suffering an injury to his reputation.” (internal quotationmarks and citation omitted)).

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clude that they have a sufficient “personal stake” tochallenge the FAA. That does not mean that their chal-lenge will succeed; it means only that the plaintiffs areentitled to have a federal court reach the merits of theirchallenge. We need not “decide whether appellants’allegations . . . will, ultimately, entitle them to anyrelief, in order to hold that they have standing to seekit.” Baker, 369 U.S. at 208.

V. Laird v. Tatum

The government’s principal arguments against theabove analysis rest on a single case, Laird v. Tatum, 408U.S. 1 (1972). Laird is unquestionably relevant to thiscase, as it is the only case in which the Supreme Courtspecifically addressed standing to challenge a govern-ment surveillance program. Because Laird significantlydiffers from the present case, however, we disagree withthe government’s contention that Laird controls theinstant case, and that Laird created different and strict-er standing requirements for surveillance cases than forother types of cases.

In Laird, the plaintiffs challenged a surveillance pro-gram that authorized the Army to collect, analyze, anddisseminate information about public activities that hadpotential to create civil disorder. The Army collected itsdata from a number of sources, but most of it came from“the news media and publications in general circulation”or from “agents who attended meetings that were opento the public and who wrote field reports describing themeetings.” Laird, 408 U.S. at 6. The Court noted thatthe court of appeals had characterized the informationgathered as “nothing more than a good newspaper re-porter would be able to gather by attendance at publicmeetings and the clipping of articles from publications

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available on any newsstand.” Id. at 9 (internal quotationmarks omitted). Roughly sixty government agentsaround the country participated in the surveillance pro-gram. Id. at 6-7.

The plaintiffs sought to enjoin the program. Theyclaimed that they “disagree[d] with the judgments”made by the Executive Branch about the scope of thesurveillance program, id. at 13, and they argued that “inthe future it is possible that information relating to mat-ters far beyond the responsibilities of the military maybe misused by the military to [their] detriment,” id. at9. But the Court stated that the plaintiffs

[did] not attempt to establish this as a definitelyforeseeable event, or to base their complaint on thisground. Rather, [the plaintiffs] contend[ed] that thepresent existence of this system of gathering and dis-tributing information, allegedly far beyond the mis-sion requirements of the Army, constitute[d] an im-permissible burden on [them] and other persons sim-ilarly situated which exercise[d] a present inhibitingeffect on their full expression and utilization of theirFirst Amendment rights.

Id. at 10 (internal quotation marks omitted).

The Court noted the court of appeals’s observationthat the plaintiffs “have some difficulty in establishingvisible injury. . . . They freely admit that they com-plain of no specific action of the Army against them . . .There is no evidence of illegal or unlawful surveillanceactivities.” Id. at 9 (citation and alteration omitted).The Court stated that any alleged chilling effect arosefrom the plaintiffs’ “perception of the system as inappro-priate to the Army’s role under our form of govern-

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ment,” or the plaintiffs’ “beliefs that it is inherently dan-gerous for the military to be concerned with activities inthe civilian sector,” or the plaintiffs’ “less generalizedyet speculative apprehensiveness that the Army may atsome future date misuse the information in some waythat would cause direct harm to respondents.” Id. at 13.Moreover, the Court noted that the plaintiffs had cast“considerable doubt” on whether the surveillance pro-gram had actually chilled them, id. at 13 n.7, and theplaintiffs did not identify any concrete harm inflicted bythe program.

The Court therefore considered:

whether the jurisdiction of a federal court may beinvoked by a complainant who alleges that the exer-cise of his First Amendment rights is being chilledby the mere existence, without more, of a govern-mental investigative and datagathering activity thatis alleged to be broader in scope than is reasonablynecessary for the accomplishment of a valid govern-mental purpose.

408 U.S. at 10 (emphasis supplied).

The Court denied plaintiffs standing. It held that theplaintiffs’ complaints about “the very existence of theArmy’s data-gathering system” and their “[a]llegationsof a subjective ‘chill’ are not an adequate substitute fora claim of specific present objective harm or a threat ofspecific future harm.” Id. at 13-14. The Court notedthat although previous cases have found governmentalregulations unconstitutional based on their “chilling”effect,

[i]n none of these cases, however, did the chillingeffect arise merely from the individual’s knowledge

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that a governmental agency was engaged in certainactivities or from the individual’s concomitant fearthat, armed with the fruits of those activities, theagency might in the future take some other and addi-tional action detrimental to that individual. Rather,in each of these cases, the challenged exercise of gov-ernmental power was regulatory, proscriptive, orcompulsory in nature, and the complainant was ei-ther presently or prospectively subject to the regula-tions, proscriptions, or compulsions that he was chal-lenging.

Id. at 11.

The government argues that “[t]his case is directlygoverned by Laird,” because the only specific presentharms the plaintiffs allege flow from a subjective chill.Laird, however, differs dramatically from this case.

In Laird, the plaintiffs did not clearly allege any in-juries whatsoever. They did not claim that the govern-ment surveillance they sought to challenge, which reliedprincipally on monitoring through publicly availablesources activities conducted entirely in public, harmedthem. They did not claim that they, or anyone withwhom they regularly interacted, would be subject to anyillegal or unconstitutional intrusion if the program theychallenged was allowed to continue. Rather, theyclaimed only that they might be injured if the informa-tion lawfully collected by the military were misused insome unspecified way at some unspecified point in thefuture, and they alleged that the surveillance schemehad a chilling effect, while essentially admitting thatthey themselves had not been chilled, and that the pro-gram had not altered their behavior in any way.

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By contrast, the instant plaintiffs clearly have al-leged specific and concrete injuries. Unlike the Lairdplaintiffs, they do not challenge a program of informa-tion gathering that they concede is lawful, on the theorythat the information gathered may be misused in thefuture by government agents acting illegally and with-out authorization; rather, they challenge a specific stat-ute that expressly authorizes surveillance that they con-tend is in itself unconstitutional. They do not vaguelyallege that they might be subject to surveillance underthe program; rather, they set forth specific, concretereasons to believe they are likely to be overheard, be-cause their legitimate activities bring them into contactwith the very types of people who are the professed tar-gets of the statutorily authorized surveillance. And farfrom alleging an undefined “chill” that has not affectedtheir own behavior in any way, they detail specific, rea-sonable actions that they have taken to their own tangi-ble, economic cost, in order to carry out their legitimateprofessional activities in an ethical and effective manner,which can be done only by taking every precaution toavoid being overheard in the way that the challengedstatute makes reasonably likely.29

This case is a far cry from Laird. In this case, asdemonstrated above, the plaintiffs allege injuries that

29 See Socialist Workers Party, 419 U.S. at 1319 (Marshall, CircuitJustice) (holding that, as distinguishable from Laird, the plaintiffs’allegations were specific enough to satisfy the “threshold jurisdictionalquestion” of standing because “the allegations are much more specific:the applicants have complained that the challenged investigative activ-ity will have the concrete effects of dissuading some [Young SocialistAlliance] delegates from participating actively in the convention andleading to possible loss of employment for those who are identified asbeing in attendance.”).

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establish their standing consistent with the standingjurisprudence of the Supreme Court and this Court. InLaird, by contrast, the plaintiffs alleged no such inju-ries. Indeed, because the Laird plaintiffs offered solittle by way of concrete injury, direct or indirect, Lairdhas little or nothing to say about the critical issue in thiscase: the reasonableness of the plaintiffs’ fear of futureinjury from the FAA, and the causal relation of the chal-lenged statute to the tangible costs the plaintiffs claimthey have incurred.

The government next argues, however, that even ifLaird does not directly govern this case, it created spe-cial standing rules for surveillance cases that arestricter than those that apply to other types of cases,and that those special rules preclude standing in thiscase. We disagree.

First, the government argues that under Laird aplaintiff may challenge a surveillance statute only if heis “subject to” that statute, meaning that he belongs toa narrow class of individuals the statute, on its face,identifies as targets. In support of this claim, the gov-ernment relies on Laird’s comment that some previousplaintiffs who obtained standing to challenge a regula-tion that did not explicitly target them were able to doso because they were or would soon be “subject to theregulations, proscriptions, or compulsions” they chal-lenged. Id. at 11. The government thus argues that theinstant plaintiffs cannot obtain standing to challenge theFAA, because the FAA “does not direct intelligencegathering activities against the plaintiffs. Nor does itauthorize plaintiffs to be targeted.” 30

30 The government points out that certain of our sister circuits haveread Laird to have created such a requirement in surveillance cases.

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Second, the government argues that Laird precludesstanding based on chilling-effect injuries. The govern-ment notes that the Laird plaintiffs alleged that the ex-istence of the Army’s surveillance program produced achilling effect upon the exercise of their First Amend-ment rights, and the Court rejected that allegation as aground for standing. The government adopts UnitedPresbyterian’s interpretation of Laird, which says thatin order to obtain standing plaintiffs must show thatthey “suffer[] some concrete harm (past or immediatelythreatened) apart from the ‘chill’ itself,” such as denialof admission to the bar or termination of employment. United Presbyterian, 738 F.2d at 1378 (emphasis sup-plied).31 Relying on this interpretation of Laird, the gov-

See ACLU v. NSA, 493 F.3d at 661 (Batchelder, J., lead opinion) (“[T]oallege a sufficient injury under the First Amendment, a plaintiff mustestablish that he or she is regulated, constrained, or compelled directlyby the government’s actions, instead of by his or her own subjectivechill.”); Id. at 688 (Gibbons, J., concurring) (noting that “the plaintiffshave failed to provide evidence that they are personally subject to the”surveillance program”); United Presbyterian, 738 F.2d at 1738 (notingthat the plaintiffs are not subject to the challenged regulation because“Executive Order No. 12333 issues no commands or prohibitions tothese plaintiffs, and sets forth no standards governing their conduct”);Id. at 1380 (“[H]ere, as in [Laird], no part of the challenged schemeimposes or even relates to any direct governmental constraint upon theplaintiffs. . . . ”). Similarly, in the instant case, the district court heldthat “[w]ithout showing that they are subject to the statute they seekto challenge, the plaintiffs’ fear that they will suffer harm from thatstatute is speculative and hypothetical.” Amnesty Int’l, 646 F. Supp. 2dat 647.

31 The government also cites ACLU v. NSA for a similar interpreta-tion of Laird. See ACLU v. NSA, 493 F.3d at 660 (Batchelder, J., leadopinion) (“I cannot subscribe to a view that the reason the injury inLaird was insufficient was because the plaintiffs alleged ‘only’ chilled

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ernment dismisses the economic and professional coststhe plaintiffs have incurred because they “flow directlyfrom the ‘subjective chill’ on plaintiffs’ speech causedsolely by the existence of [the FAA].” The governmentsays those injuries are “nothing more than a repackagedversion of the ‘subjective chill’ that the Supreme Courtfound insufficient to establish standing in Laird.”

We are not persuaded that Laird created either ofthese special standing rules for surveillance cases.Since Laird is the only Supreme Court precedent inwhich a plaintiff who had not been surveilled claimedstanding to challenge a surveillance scheme, it is naturalto look to it for guidance. However, the governmentreads far more into Laird than either its facts or its lan-guage permit. In doing so, it loses sight of the generalprinciples of standing.

First, the Laird plaintiffs so obviously lacked stand-ing that the Court did not need to create stricter stand-ing rules in the surveillance context in order to denyplaintiffs standing. The Laird plaintiffs identified noinjury that they had suffered or would likely suffer. Inthe absence of any clear alleged injury, the Court couldnot find that the plaintiffs had satisfied the normalstanding requirements, and it therefore did not need toinvent new rules to reach that outcome. As we havedemonstrated at length above, the facts of Laird aresimply not comparable to those presented in the instantcase. That the Laird plaintiffs were held to lack stand-ing does not imply that the instant plaintiffs similarlyhave failed to allege injury. Any statement in Laird of

speech and that, by something ‘more,’ the Laird Court meant moresubjective injury or other injuries that derive from the chilled speech.”).

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a general rule applicable to all surveillance cases couldonly be dictum.

Second, Laird in fact contains no such purportedspecial rules for surveillance cases. Nothing in Lairdsupports the conclusion that the Court intended tochange the standing rules, nor does it explain any needto create standing rules for surveillance cases distinctfrom the rules applicable in other contexts. To the con-trary, Laird’s final sentence makes clear that the resultin that case was dictated by the well-established generalprinciples of standing:

[T]here is nothing in our Nation’s history or in thisCourt’s decided cases, including our holding today,that can properly be seen as giving any indicationthat actual or threatened injury by reason of unlaw-ful activities of the military would go unnoticed orunremedied.

Laird, 408 U.S. at 16. The language quoted by the gov-ernment—that some previous plaintiffs who obtainedstanding to challenge a regulation were or would soon be“subject to the regulations, proscriptions, or compul-sions” they challenged, id. at 11—does not purport toestablish a fixed requirement for standing in the surveil-lance context or in any other; it merely contrasts thesituation of the Laird plaintiffs with those of other plain-tiffs who were found to have standing.

Third, while the government relies heavily on ACLUv. NSA and United Presbyterian to support its interpre-tation of Laird, those cases do not bind us, and they arefactually distinguishable from the instant case.32 More-

32 In ACLU v. NSA, the plaintiffs challenged a narrow surveillanceprogram that monitored particular individuals the government sus-

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over, we do not find their interpretations of Laird to bepersuasive. They read Laird essentially the same waythe government does, without explaining why we shouldread Laird to have ratcheted up the standing require-ments in surveillance cases, sub silentio, where theplaintiffs at issue clearly lacked standing under the nor-mal rules. We do not see any reason why the law ofstanding should be stricter or different in the surveil-lance context, and those cases do not offer any such rea-sons.

Under the traditional, well-established rules ofstanding, the plaintiffs here have alleged that they rea-sonably anticipate direct injury from the enactment ofthe FAA because, unlike most Americans, they engagein legitimate professional activities that make it reason-ably likely that their privacy will be invaded and theirconversations overheard—unconstitutionally, or so theyargue—as a result of the surveillance newly authorizedby the FAA, and that they have already suffered tangi-ble, indirect injury due to the reasonable steps theyhave undertaken to avoid such overhearing, which would

pected were associated with al Qaeda. 493 F.2d at 647 (Batchelder, J.,lead opinion). The FAA, by contrast, authorizes a considerably broadersurveillance program. This fact increases the likelihood that the instantplaintiffs will be harmed in the future, which is a key consideration indetermining whether the plaintiffs should have standing to challengethe underlying statute. In United Presbyterian, the plaintiffs chal-lenged an executive order that, inter alia, established procedures forthe FBI and other intelligence agencies to divide their overlappingsurveillance duties. The D.C. Circuit said the plaintiffs essentiallychallenged the “constitutionality of the entire national intelligence-gathering system.” 738 F.2d at 1381. But, unlike the instant plaintiffs,the United Presbyterian plaintiffs failed to establish any particular riskthat they would be surveilled under the executive order they chal-lenged. Id. at 1380.

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impair their ability to carry out those activities. Noth-ing more is required for standing under well-establishedprinciples. And nothing in Laird, where the plaintiffsalleged no comparable injury, purports to change thoseprinciples.33

CONCLUSION

The plaintiffs’ uncontroverted testimony that theyfear their sensitive international electronic communica-tions being monitored and that they have taken costlymeasures to avoid being monitored—because we deemthat fear and those actions to be reasonable in the cir-cumstances of this case—establishes injuries in fact thatwe find are causally linked to the allegedly unconstitu-

33 We are not alone in so reading Laird. See Socialist Workers Party,419 U.S. at 1318 (Marshall, Circuit Justice) (“The Government has con-tended that under Laird, a chilling effect will not give rise to a justic-iable controversy unless the challenged exercise of governmental poweris regulatory, proscriptive, or compulsory in nature, and the complain-ant is either presently or prospectively subject to the regulations, pro-scriptions, or compulsions that he is challenging. In my view, the Gov-ernment reads Laird too broadly. In the passage relied upon by theGovernment, the Court was merely distinguishing earlier cases, notsetting out a rule for determining whether an action is justiciable ornot.” (internal quotation marks and citations omitted)); see also Meese,481 U.S. at 472-74 (Laird’s prohibition of standing based on “subjectivechill” does not preclude standing for plaintiff who alleged that his show-ing of films was chilled by a statute that required certain films to belabeled “political propaganda.”); Presbyterian Church (U.S.A.) v. Uni-ted States, 870 F.2d 518, 522-23 (9th Cir. 1989) (holding Laird does notapply where the alleged effect of INS surveillance on churches is “nota mere subjective chill” on worship activities but is “concrete, . . . dis-tinct and palpable”); Ozonoff v. Berzak, 744 F.2d 224, 229-30 (1st Cir.1984) (Breyer, J.) (Laird permitts [sic] standing when the challengedactivity “reasonably [leads] [plaintiff] to believe” he must alter hisbehavior).

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tional FAA. We therefore find that plaintiffs havestanding to challenge the constitutionality of the FAA infederal court.

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APPENDIX B

UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF NEW YORK

No. 08 Civ. 6259 ( JGK)

AMNESTY INTERNATIONAL USA, ET AL., PLAINTIFFS,

v.

JOHN MCCONNELL, ET AL., DEFENDANTS

Filed: Aug. 20, 2009

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

This is a facial challenge to the constitutionality ofSection 702 of the Foreign Intelligence Surveillance Actof 1978 (“FISA”), 50 U.S.C. § 1881a, which was added toFISA by Section 101(a)(2) of the FISA Amendments Actof 2008 (the “FAA”). In relevant part, the FAA amend-ed FISA by creating a new framework within which fed-eral officials may seek approval from the Foreign Intel-ligence Surveillance Court (the “FISC”) to authorizesurveillance targeting non-United States persons lo-cated outside the United States to acquire foreign intel-ligence information.

The plaintiffs are attorneys and organizations in theUnited States whose work necessitates international

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communications with people and organizations they be-lieve to be likely targets of surveillance under the FAA.The defendants are the Director of National Intelli-gence, the Director of the National Security Agency andChief of the Central Security Service, and the AttorneyGeneral of the United States.1

The plaintiffs fear that their international communi-cations will be monitored under the FAA. They make noclaim that their communications have yet been moni-tored, and they make no allegation or showing that thesurveillance of their communications has been autho-rized or that the Government has sought approval forsuch surveillance. However, the plaintiffs assert thatthey have an “actual and well-founded fear” of surveil-lance under the FAA and claim already to have incurredsignificant costs in taking steps to protect their interna-tional communications from surveillance. The plaintiffschallenge the FAA as unconstitutional under the FourthAmendment, the First Amendment, and Article III ofthe Constitution.

The Government contends as a threshold matter thatthe plaintiffs lack standing to challenge the FAA. TheGovernment also contends that the lawsuit lacks meritin any event because the FAA is constitutional on itsface.

The parties have filed cross-motions for summaryjudgment. For the reasons explained below, the plain-tiffs have failed to show that they have standing to bringtheir facial challenge to the statute.

1 Attorney General Eric H. Holder, Jr., should be automatically sub-stituted for former Attorney General Michael B. Mukasey as a defen-dant, and the caption of this case changed accordingly. See Fed. R. Civ.P. 25(d).

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I

A

Prior to the passage of the FAA, FISA created aframework for federal officials to apply for and obtainorders authorizing electronic surveillance where a sig-nificant purpose of the surveillance was to obtain foreignintelligence information. See 50 U.S.C. § 1804; see alsoUnited States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984).2

FISA established the FISC, comprised of judges ap-pointed by the Chief Justice of the United States, withjurisdiction to hear applications for and to grant ordersapproving electronic surveillance “in aid of protectingthe United States against attack by foreign governmentsor international terrorist groups.” United States v.Rahman, 861 F. Supp. 247, 249 (S.D.N.Y. 1994), aff ’d,189 F.3d 88 (2d Cir. 1999); see also 50 U.S.C. §§ 1801(e),1803.

FISA required that each application for an orderapproving electronic surveillance be made by a federalofficer upon oath or affirmation after approval by theAttorney General. 50 U.S.C. § 1804(a). An applicationwas required to set forth the identity of the federal offi-cer making the application; the identity, if known, of thetarget of the electronic surveillance; the facts uponwhich the applicant relied in concluding that the targetof the electronic surveillance was a foreign power or anagent of a foreign power and that each of the facilities orplaces at which the surveillance was directed was being

2 Prior to October 26, 2001, the date on which the Patriot Act becameeffective, FISA required that obtaining foreign intelligence informationbe “the purpose” of electronic surveillance, rather than “a significantpurpose.” See United States v. Sattar, No. 02 Cr. 395, 2003 WL22137012, at *3 & n.3 (S.D.N.Y. Sept. 15, 2003).

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used, or was about to be used, by a foreign power oragent thereof; a statement of proposed minimizationprocedures; the type of information sought and themeans by which surveillance would be effected; a state-ment concerning the previous applications sought; anda statement of the period of time for which the surveil-lance was required to be maintained. 50 U.S.C.§ 1804(a)(1)-(9).

The application had to be approved by the AttorneyGeneral upon the Attorney General’s finding that it sat-isfied the criteria and requirements of such an applica-tion. 50 U.S.C. § 1804(a). The application had to includea certification from a high ranking executive officer em-ployed in the area of national security or defense thatthe information sought was foreign intelligence informa-tion as defined by 50 U.S.C. § 1801(e). 50 U.S.C.§ 1804(a)(6). Foreign intelligence information includedinformation relating to the ability of the United Statesto protect against international terrorism, and “infor-mation with respect to a foreign power or foreign terri-tory that relates to . . . the conduct of the foreign af-fairs of the United States,” among other things.50 U.S.C. § 1801(e). FISA required that the certifica-tion include a statement that the information soughtcould not reasonably be obtained by normal investiga-tive techniques and designating the type of foreign intel-ligence information sought in accordance with § 1801(e).50 U.S.C. § 1804(a)(6). Finally, after the passage of thePatriot Act, the executive officer was required to certifythat “a significant purpose of the surveillance is to ob-tain foreign intelligence information.” 50 U.S.C.§ 1804(a)(6).

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Prior to approving the requested electronic surveil-lance, a FISC judge had to find that: (1) the applicationwas made by a federal officer and approved by the At-torney General; (2) there was probable cause on the ba-sis of the application to believe that the target of theelectronic surveillance was a foreign power or agent ofa foreign power, and that each of the facilities or placesat which the electronic surveillance was directed wasbeing used, or was about to be used, by a foreign poweror an agent of a foreign power; (3) the proposed mini-mization procedures met the definition of minimizationprocedures set forth in § 1801(h); and (4) the applicationcontained all statements and certifications required un-der § 1804. 50 U.S.C. § 1805(a).

Pursuant to FISA, a FISC judge who was satisfiedthat an application met the statutory requirements wasrequired to enter an ex parte order approving the re-quested electronic surveillance. 50 U.S.C. § 1805(a).Such an order was required to specify the identity of thetarget of the surveillance; the location of each of the fa-cilities or places at which the surveillance would be di-rected; the type of information sought and communica-tions or activities to be subjected to the surveillance; themeans by which the surveillance would be effected; andthe period of time for which the surveillance was ap-proved; and to direct that the minimization proceduresbe followed. 50 U.S.C. § 1805(c).

The FISA framework governed applications for or-ders authorizing electronic surveillance to obtain foreignintelligence information, including surveillance of com-munications between persons located within the UnitedStates (“domestic communications”) and surveillance ofcommunications between persons located within the

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United States and persons located outside the UnitedStates (“international communications”). FISA defined“electronic surveillance” to include:

(1) the acquisition by an electronic, mechanical, orother surveillance device of the contents of any wireor radio communication sent by or intended to bereceived by a particular, known United States personwho is in the United States, if the contents are ac-quired by intentionally targeting that United Statesperson, under circumstances in which a person has areasonable expectation of privacy and a warrantwould be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, orother surveillance device of the contents of any wirecommunication to or from a person in the UnitedStates, without the consent of any party thereto, ifsuch acquisition occurs in the United States, but doesnot include the acquisition of those communicationsof computer trespassers that would be permissibleunder section 2511(2)(i) of Title 18;

(3) the intentional acquisition by an electronic, me-chanical, or other surveillance device of the contentsof any radio communication, under circumstances inwhich a person has a reasonable expectation of pri-vacy and a warrant would be required for law en-forcement purposes, and if both the sender and allintended recipients are located within the UnitedStates; or

(4) the installation or use of an electronic, mechani-cal, or other surveillance device in the United Statesfor monitoring to acquire information, other thanfrom a wire or radio communication, under circum-stances in which a person has a reasonable expecta-

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tion of privacy and a warrant would be required forlaw enforcement purposes.

50 U.S.C. § 1801(f ). The FISA requirements thus ap-plied to the surveillance of international wire communi-cations (including telephone and email communications)provided that the surveillance occurred in the UnitedStates. 50 U.S.C. § 1801(f )(2). The FISA requirementsdid not apply to the surveillance of international radiocommunications, or to surveillance of international wirecommunications that did not take place in the UnitedStates,3 unless such surveillance targeted a knownUnited States person located in the United States. See50 U.S.C. §§ 1801(f )(1-2).4

B

The FAA was signed into law on July 10, 2008. TheFAA leaves much of the preexisting FISA frameworkintact. However, new Section 702 of FISA, added bySection 101(a)(2) of the FAA and codified at 50 U.S.C.§ 1881a, sets forth a new framework displacing the pre-existing FISA framework where the Government seeksapproval from the FISC to authorize surveillance tar-geting non-United States persons located outside theUnited States to acquire foreign intelligence informa-tion. Under the FAA, “[n]otwithstanding any other pro-vision of law, upon the issuance of an order in accord-

3 The plaintiffs represent that at the time FISA was passed, approx-imately half of Americans’ international communications were transmit-ted by radio or satellite, the monitoring of which Congress did notregulate. The Government represents that the percentage was greaterthan half.

4 FISA defines “United States person” to mean a citizen of the Uni-ted States or an alien lawfully admitted for permanent residence, in rel-evant part. 50 U.S.C. § 1801(i).

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ance with [50 U.S.C. § 1881a(i)(3)] or a determinationunder [50 U.S.C. § 1881a(c)(2)], the Attorney Generaland the Director of National Intelligence may authorizejointly, for a period of up to 1 year from the effectivedate of the authorization, the targeting of persons rea-sonably believed to be located outside the United Statesto acquire foreign intelligence information.” 50 U.S.C.§ 1881a(a).

In order to authorize surveillance under the FAA,the Attorney General and the Director of National Intel-ligence must apply for and obtain an order authorizingsuch surveillance from the FISC. 50 U.S.C. §§ 1881a(a)& (i)(3).5 The application consists of providing a writtencertification and any supporting affidavit, under oathand under seal, to the FISC. The certification must at-test, among other things, that a significant purpose ofthe requested surveillance is to obtain foreign intelli-gence information; that the surveillance involves obtain-ing such information from or with the assistance of anelectronic communications service provider; and that the

5 The FAA provides an exception where the Attorney General andthe Director of National Intelligence determine that exigent circum-stances exist because, without immediate implementation of an author-ization of surveillance, intelligence important to the national security ofthe United States may be lost or not timely acquired and time does notpermit the issuance of an order pursuant to 50 U.S.C. § 1881a(i)(3) priorto the implementation of such authorization. 50 U.S.C. § 1881a(c)(2). In the case of a determination of exigent circumstances pursuant to 50U.S.C. § 1881a(c)(2), the Attorney General and the Director of NationalIntelligence must undertake as soon as practicable, but in no event laterthan 7 days after such determination is made, to fulfill the same re-quirements ordinarily imposed before an order authorizing surveillanceunder the FAA may be obtained from the FISC. 50 U.S.C.§ 1881a(g)(1)(B).

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surveillance complies with certain limitations set forthin § 1881a(b). 50 U.S.C. § 1881a(g)(2)(A)(v-vii).

Pursuant to the limitations set forth in § 1881a(b),the requested surveillance may not intentionally targetany person known at the time of the surveillance to belocated in the United States; any person reasonably be-lieved to be located outside the United States if the pur-pose of such surveillance is to target a particular, knownperson reasonably believed to be in the United States;or any United States person reasonably believed tobe located outside the United States. 50 U.S.C.§ 1881a(b)(1-3). Moreover, the requested surveillancemay not intentionally acquire communications known atthe time of the surveillance to be domestic communica-tions, 50 U.S.C. § 1881a(b)(4), although it may inten-tionally acquire international communications.6 Section1881a(b) also provides that the requested surveillancemust be conducted in a manner consistent with theFourth Amendment. 50 U.S.C. § 1881a(b)(5).

The certification must attest that guidelines havebeen adopted in accordance with 50 U.S.C. § 1881a(f ) toensure compliance with the limitations in § 1881a(b) andto ensure that an application for a court order is filed asrequired by § 1881a. 50 U.S.C. § 1881a(g)(2)(A)(iii). Inaddition, such guidelines must be provided to the con-gressional intelligence committee and the Committeeson the Judiciary of the Senate and the House of Repre-sentatives, as well as the FISC. 50 U.S.C. § 1881a(f )(2).The certification must attest that such guidelines are

6 Insofar as the FAA regulates the surveillance of international radiocommunications to obtain foreign intelligence information, it establishesregulations where none existed under FISA.

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consistent with the Fourth Amendment. 50 U.S.C.§ 1881a(g)(2)(A)(iv).

The certification must attest that the Governmenthas targeting and minimization procedures in place thathave been approved by the FISC or have been submit-ted to the FISC for approval or will be submitted withthe certification. 50 U.S.C. § 1881a(g)(2)(A)(i-ii). Thecertification must also include the actual procedures andattest that they comply with the Fourth Amendment.50 U.S.C. § 1881a(g)(2)(B) & (g)(2)(A)(iv). “Targetingprocedures” are procedures reasonably designed to en-sure that the requested surveillance is limited to target-ing persons reasonably believed to be located outsidethe United States, and to prevent the intentional surveil-lance of communications known to be domestic commu-nications at the time of the surveillance. 50 U.S.C.§ 1881a(d)(1) & (g)(2)(A)(i). “Minimization procedures”for purposes of electronic surveillance under the FAAmust meet the definition of minimization procedures forpurposes of electronic surveillance under FISA. Mini-mization procedures are:

(1) specific procedures, which shall be adopted bythe Attorney General, that are reasonably designedin light of the purpose and technique of the particu-lar surveillance, to minimize the acquisition and re-tention, and prohibit the dissemination, of nonpub-licly available information concerning unconsentingUnited States persons consistent with the need of theUnited States to obtain, produce, and disseminateforeign intelligence information;

(2) procedures that require that nonpublicly avail-able information, which is not foreign intelligence in-formation, as defined in [50 U.S.C. § 1801(e)(1)], shall

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not be disseminated in a manner that identifies anyUnited States person, without such person’s consent,unless such person’s identity is necessary to under-stand foreign intelligence information or assess itsimportance; [and]

(3) notwithstanding paragraphs (1) and (2), proce-dures that allow for the retention and disseminationof information that is evidence of a crime which hasbeen, is being, or is about to be committed and thatis to be retained or disseminated for law enforcementpurposes[.]

50 U.S.C. § 1801(h).7

The certification required by the FAA must besupported, as appropriate, by the affidavit of any appro-priate official in the area of national security who isappointed by the President, by and with the adviceand consent of the Senate, or who is the head of anelement of the intelligence community. 50 U.S.C.§ 1881a(g)(2)(C). The certification must include an ef-fective date for the authorization that is at least 30 daysafter the submission of the certification to the FISC; or,if the acquisition has begun or the effective date is lessthan 30 days after the submission of the certification to

7 Section 1801(h) includes a fourth requirement for minimizationprocedures where surveillance is conducted pursuant to 50 U.S.C.§ 1802(a). Surveillance conducted under § 1802(a) is solely directed atcommunications transmitted by means of communications used exclu-sively between or among foreign powers, among other things, and maybe authorized without a court order if the requirements of that sectionare satisfied. 50 U.S.C. § 1802(a). Surveillance conducted pursuant tothe FAA is not subject to the minimization requirement set forth in§ 1801(h) that applies only to surveillance conducted pursuant to§ 1802(a).

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the FISC, the date the acquisition began or the effectivedate of the acquisition. 50 U.S.C. § 1881a(g)(2)(D).

The FISC has jurisdiction to review a certificationfor electronic surveillance under the FAA, including thetargeting and minimization procedures that wereadopted by the Attorney General in consultation withthe Director of National Intelligence. 50 U.S.C.§ 1881a(i)(1)(A). The FAA provides that the FISC shallreview the certification, the targeting procedures andthe minimization procedures to ensure that they complywith all of the requirements discussed above. 50 U.S.C.§ 1881a(i)(2). If the FISC finds that the certificationcontains all the required elements and the targeting andminimization procedures are in compliance with the stat-ute and with the Fourth Amendment, it must issue anorder granting the Government approval to authorizethe requested surveillance. 50 U.S.C. § 1881a(i)(3)(A).The FISC must complete its review and issue an orderwith respect to an application for an order authorizingsurveillance no more than 30 days after the date onwhich the certification and the targeting and minimiz-ation procedures are submitted for approval. 50 U.S.C.§ 1881a(i)(1)(B).

The FAA allows for the Government to appeal anorder rejecting an application for a surveillance order tothe FISA Court of Review. The Court of Review mustdecide an appeal no more than 60 days from the date theappeal is filed. The Government is permitted to con-tinue any surveillance affected by a FISC order while anappeal to the Court of Review is pending, or while anyrehearing of the FISC order by the FISC en banc ispending. The Government may file a petition for a writ

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of certiorari with the Supreme Court for review of a de-cision of the Court of Review. 50 U.S.C. § 1881a(i)(4).

The FAA provides for a semiannual assessment ofcompliance with the targeting and minimization proce-dures adopted in accordance with 50 U.S.C. §§ 1881a(d)and (e) and the guidelines adopted in accordance with§ 1881a(f ). The FAA provides that each assessmentshall be made by the Attorney General and the Directorof National Intelligence, and submitted to the FISC, thecongressional intelligence committees, and the Commit-tees on the Judiciary of the House of Representativesand the Senate.8 50 U.S.C. § 1881a(l).

The FAA also provides that the Inspector General ofthe Department of Justice and the Inspector General ofeach element of the intelligence community authorizedto acquire foreign intelligence information under § 1881aare authorized to review compliance with the targetingand minimization procedures adopted under §§ 1881a(d)and (e) and the guidelines adopted under § 1881a(f ). With respect to surveillance authorized under § 1881a,those officials are required to review the number of dis-seminated intelligence reports containing a reference toa United States person identity and the number ofUnited States person identities subsequently dissemi-nated by the element concerned in response to requestsfor identities that were not referred to by name or titlein the original reporting. They are also required to re-view the number of targets that were later determined

8 The submission of semiannual assessments to the congressionalcommittees, under this provision and all other provisions in the FAA,is subject to the Rules of the House of Representatives, the StandingRules of the Senate, and Senate Resolution 400 of the 94th Congress orany successor Senate resolution. 50 U.S.C. § 1881a(l)(B).

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to be located in the United States and, to the extent pos-sible, whether communications of such targets were re-viewed. They must provide each such review to the At-torney General, the Director of National Intelligence,the congressional intelligence committees, and the Com-mittees on the Judiciary of the House of Representa-tives and the Senate. 50 U.S.C. § 1881a(l )(2).

Finally, the FAA provides for the head of each ele-ment of the intelligence community conducting surveil-lance authorized under § 1881a to conduct an annualreview to determine whether there is reason to believethat foreign intelligence information has been or will beobtained from the surveillance. The annual review isrequired to provide an accounting of the number of dis-seminated intelligence reports containing a reference toa United States person identity; an accounting of thenumber of United States person identities subsequentlydisseminated by that element in response to requests foridentities that were not referred to by name or title inthe original reporting; the number of targets that werelater determined to be located in the United States and,to the extent possible, whether communications of suchtargets were reviewed; and a description of any proce-dures developed by the head of such element of the in-telligence community and approved by the Director ofNational Intelligence to assess, in a manner consistentwith national security, operational requirements and theprivacy interests of United States persons, the extent towhich the surveillance authorized under § 1881a ac-quires the communications of United States persons,and the results of any such assessment. 50 U.S.C.§ 1881a(l)(3)(A). The purpose of the annual review is toevaluate the adequacy of the minimization proceduresused and, as appropriate, the application of the minimi-

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zation procedures to a particular surveillance. 50 U.S.C.§ 1881a(l)(3)(B). The annual reviews are to be providedto the FISC, the Attorney General, the Director of Na-tional Intelligence, the congressional intelligence com-mittees, and the Committees on the Judiciary of theHouse of Representatives and the Senate. 50 U.S.C.§ 1881a(l)(3)(C).9

In applying for an order from the FISC approvingthe authorization of surveillance under the FAA, theGovernment is not required to identify the specific facili-ties, places, premises, or property at which the surveil-lance will be directed or conducted. 50 U.S.C.§ 1881g(4). The Government is also not required toidentify the specific targets of the requested surveil-lance or to show probable cause that the prospectivetargets of the surveillance are foreign powers or agentsthereof.

II

The plaintiffs move for summary judgment declaringthe FAA unconstitutional, and the Government movesfor summary judgment dismissing the plaintiffs’ consti-tutional challenge. Summary judgment may not begranted unless “the pleadings, the discovery and disclo-sure materials on file, and any affidavits show that thereis no genuine issue as to any material fact and that themovant is entitled to judgment as a matter of law.” Fed.R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477

9 The FAA also provides a framework for directives to be issued bythe Attorney General and the Director of National Intelligence to elec-tronic communication service providers in order to carry out surveil-lance authorized under § 1881a, and for judicial review of such direc-tives. See 50 U.S.C. § 1881a(h).

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U.S. 317, 322 (1986); Roe v. City of Waterbury, 542 F.3d31, 35 (2d Cir. 2008); New York State Motor Truck Ass’nv. Pataki, No. 03 Civ. 2386, 2004 WL 2937803, at *3(S.D.N.Y. Dec. 17, 2004).

Although both parties have moved for summaryjudgment, the only factual submissions in the record arethose made by the plaintiffs. In opposing the plaintiffs’motion for summary judgment, and in responding to theplaintiffs’ Statement of Undisputed Facts pursuant toLocal Rule 56.1 (the plaintiffs’ “56.1 Statement” or “56.1Stmt.”), the Government makes no reference to any evi-dence except that submitted by the plaintiffs. Moreover,the Government submits no facts in support of its ownmotion for summary judgment. At oral argument, theGovernment clarified that it was accepting the factualsubmissions of the plaintiffs as true for purposes ofthese motions. (Tr. 48-49.) Of course, that does not im-ply the acceptance of any legal conclusions embedded inthe plaintiffs’ 56.1 statement. See, e.g., Alliance Sec.Products, Inc. v. Fleming Co., 471 F. Supp. 2d 452, 454& n.8 (S.D.N.Y. 2007) (legal arguments in Rule 56.1Statement disregarded in determining whether thereare genuine issues of material fact).10

10 The plaintiffs argue in passing that the defendants should not beentitled to summary judgment because they failed to submit a 56.1Statement in support of their motion for summary judgment. However,the Court can dispense with the requirement of a 56.1 Statement, seeHadden v. Bureau of Prisons, No. 07 Civ. 8586, 2008 WL 5429823, at *5(Dec. 22, 2008) (citing D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 109n.2 (2d Cir. 2006)), and it would make no sense to require such a state-ment from the defendants in this case because they are prepared toaccept the plaintiffs’ allegedly undisputed facts, the conditional accept-ance of which is in any event the consequence of failing to submit a 56.1

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Accordingly, the following facts are undisputed.11

The plaintiffs are attorneys and human rights, labor,legal, and media organizations whose work requiresthem to engage in sensitive and sometimes privilegedtelephone and email communications with colleagues,clients, journalistic sources, witnesses, experts, foreigngovernmental officials, and victims of human rightsabuses located outside the United States. (Pl.’s 56.1Stmt. ¶ 9(A).) Some of the plaintiffs communicate bytelephone and email with people the United States Gov-ernment believes or believed to be associated with ter-rorist organizations. (Pl.’s 56.1 Stmt. ¶ 9(B).) Some ofthe plaintiffs communicate by telephone and email withpolitical and human rights activists who oppose govern-ments that are supported economically or militarily bythe United States Government. (Pl.’s 56.1 Stmt. ¶ 9(C).)Some of the plaintiffs communicate by telephone andemail with people located in geographic areas that are aspecial focus of the United States Government’s coun-terterrorism or diplomatic efforts. (Pl.’s 56.1 Stmt.¶ 9(D).)

Statement. Cf. Cosy Goose Hellas v. Cosy Goose U.S.A. Lt., 581F. Supp. 2d 606, 616-17.

Moreover, when the plaintiffs’ standing has been challenged on a mot-ion for summary judgment the plaintiffs must come forward with suf-ficient evidence to show that there is a genuine material issue as to theirstanding to warrant a trial. See Simon v. Eastern Kentucky WelfareRights Organization, 426 U.S. 26, 53-54 (1976). If the plaintiffs fail tomeet this standard, then summary judgment should be granted dis-missing their complaint.

11 The Court only recites those facts set forth by the plaintiffs that arematerial to the disposition of these motions. See, e.g., Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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All of the plaintiffs exchange information that consti-tutes foreign intelligence information within the mean-ing of the FAA. (Pl.’s 56.1 Stmt. ¶ 9(E).) The plaintiffsbelieve that their communications will be monitored un-der the FAA, and that those communications will be re-tained, analyzed, and disseminated by the Government.(Pl.’s 56.1 Stmt. ¶ 9(F).) This belief has affected the waythe plaintiffs do their jobs. (Pl.’s 56.1 Stmt. ¶ 9(G).)Namely, the plaintiffs feel constrained in locating wit-nesses, cultivating sources, gathering information, andcommunicating confidential information to their clients,among other things. (Pl.’s 56.1 Stmt. ¶ 9(H).) The plain-tiffs have ceased engaging in certain conversations onthe telephone and by email. (Pl.’s 56.1 Stmt. ¶ 9(I).)The attorney plaintiffs have an ethical obligation toavoid communicating confidential information about cli-ent matters over telephone, fax, or email if they havereason to believe that it is likely to be intercepted byothers. (Pl.’s Supplemental 56.1 Stmt. ¶ 2( J).)

The plaintiffs have incurred costs in seeking to pro-tect the confidentiality of sensitive and privileged com-munications. (Pl.’s 56.1 Stmt. ¶ 9(J).) Some of the plain-tiffs now travel long distances to meet personally withindividuals instead of communicating with those individ-uals over telephone or email. (Pl.’s 56.1 Stmt. ¶ 9(K).)On the whole, the plaintiffs’ reaction to the FAA hasaffected their work more than their reaction to previousregulatory enactments providing frameworks for Gov-ernment surveillance. (Pl.’s 56.1 Stmt. ¶ 9(L).)

III

The plaintiffs argue that on its face, the FAA violatesthe Fourth Amendment, the First Amendment, and Ar-

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ticle III of the Constitution. The plaintiffs argue underthe Fourth Amendment that the FAA fails to protect theprivacy interest of Americans in the content of theirtelephone calls and emails. They argue under the FirstAmendment that the FAA chills the constitutionally pro-tected speech of Americans who fear that their tele-phone calls and emails will be subject to surveillance.They argue under Article III that the process of judicialreview set forth in the FAA violates the principle of theseparation of powers by allowing the FISC to issue or-ders approving the authorization of surveillance in theabsence of any case or controversy and by allowing forthe Government to continue surveillance while an appealto the FISC Court of Review is pending.

In order to reach the merits of the plaintiffs’ consti-tutional arguments, the Court must first determinewhether the plaintiffs have standing to bring this action.See, e.g., Warth v. Seldin, 422 U.S. 490, 498 (1975) (“Inessence the question of standing is whether the litigantis entitled to have the court decide the merits of the dis-pute or of particular issues.”); Ontario Public ServiceEmployees Union Pension Trust Fund v. Nortel Net-works Corp., 369 F.3d 27, 34 (2d Cir. 2004) (“In order forour court to properly reach the merits of the case . . .we must first find that the parties involved have met thebasic requirements of standing.”); Local 851 of Interna-tional Brotherhood of Teamsters v. Thyssen Hill Logis-tics, Inc., Nos. 95 Civ. 5179, 02 Civ. 6250, 2004 WL2269703, at *5 (E.D.N.Y. Sept. 30, 2004) (“Standing is ajurisdictional prerequisite; accordingly, the Court mustinitially determine whether [the plaintiff] has standingto invoke the jurisdiction of the federal courts to deter-mine the merits of the underlying disputes.”) (internalcitation and quotation marks omitted).

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Article III of the Constitution limits the jurisdictionof federal courts to “Cases” and “Controversies.” Lujanv. Defenders of Wildlife, 504 U.S. 555, 559 (1992). Tosatisfy the irreducible constitutional minimum of ArticleIII standing, a plaintiff must show that (1) it has suf-fered an actual or imminent injury in fact, that is con-crete and particularized, and not conjectural or hypo-thetical; (2) there is a causal connection between theinjury and the defendant’s actions; and (3) it is likelythat a favorable decision in the case will redress the in-jury. Id . at 560-61. “The party invoking federal juris-diction bears the burden of establishing these elements.”Id . at 561.

Because the judicial power of federal courts “existsonly to redress or otherwise protect against injury tothe complaining party,” a federal court’s jurisdiction“can be invoked only when the plaintiff . . . has suf-fered ‘some threatened or actual injury resulting fromthe putatively illegal action. . . .’ ” Warth, 422 U.S. at499 (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617(1973)). The plaintiff must show a particularized injurythat affects the plaintiff in a personalized and individualway. Lujan, 504 U.S. at 560 n.1. Only a plaintiff so in-jured has “ ‘alleged such a personal stake in the out-come of the controversy’ as to warrant his invocation offederal-court jurisdiction and to justify exercise ofthe court’s remedial powers on his behalf.” Warth, 422U.S. at 498-99 (quoting Baker v. Carr, 399 U.S. 186, 204(1962)).

Apart from the irreducible constitutional minimum,the Supreme Court has also recognized other prudentiallimitations on the class of persons who may invoke thefederal judicial power. “[T]he Court has held that when

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the asserted grievance is a ‘generalized grievance’shared in substantially equal measure by all or a largeclass of citizens, that harm alone normally does not war-rant exercise of jurisdiction.” Warth, 422 U.S. at 499.The Court has also held that the plaintiff must generallyassert the plaintiff ’s own rights, and cannot rest on thelegal rights or interests of third parties. Id . This caseturns on whether the plaintiffs have met the irreducibleconstitutional minimum of personal, particularized, con-crete injury in fact without turning to the additional pru-dential aspects of standing.

The plaintiffs advance what they characterize as twoindependent bases for Article III standing to challengethe constitutionality of the FAA. First, the plaintiffsargue that they have standing on the basis of their fearthat their communications will be monitored underthe FAA because that fear is “actual and well-founded.”Second, the plaintiffs argue that they have standing onthe basis of the costs they have incurred in taking mea-sures to protect the confidentiality of their internationalcommunications, in light of their fear of surveillance.The Court addresses each proffered basis for standingin turn.

A

The plaintiffs argue that their fear of surveillanceunder the FAA provides a basis for Article III standingto challenge the constitutionality of that statute. Theyseize upon case law indicating that in the context of apre-enforcement challenge to a statute on First Amend-ment grounds, a plaintiff need only demonstrate “ ‘anactual and well-founded fear that the law will be en-forced against’ it” to satisfy the injury-in-fact require-

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ment for Article III standing. Vt. Right to Life Comm.,Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000) (quotingVirginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383,393 (1988)); see also Am. Booksellers Foundation v.Dean, 342 F.3d 96, 101 (2d Cir. 2003).12 The plaintiffs

12 The Court of Appeals for the Second Circuit has indicated that thestandard of showing an “actual and well-founded fear” of enforcementis “slightly” easier to satisfy than the standard of showing a “realisticdanger” of enforcement that applies to non-First Amendment pre-enforcement challenges to a statute. Am. Booksellers, 342 F.3d at 101(internal quotation marks omitted). The plaintiffs argue that the “ac-tual and well-founded fear” standard should apply to the determinationof standing with respect to all of their claims, rather than the FirstAmendment claim alone, because the alleged conduct that is the sourceof the injuries asserted under each constitutional claim—the potentialenforcement of the statute—implicates First Amendment rights. Thedifference between the “actual and well-founded fear” standard and the“realistic danger” standard has never been explained, and it should benoted that there are some indications that there is no meaningfuldifference between the two standards. See Brooklyn Legal Servs. Corp.v. Legal Servs. Corp., 462 F.3d 219, 227 (2d Cir. 2006) (finding standingfor as-applied First Amendment challenge based on “actual and well-founded fear” and “realistic danger”); cf. Babbitt v. United FarmWorkers Nat’l Union, 442 U.S. 289, 298 (1979) (invoking “realisticdanger” standard in First Amendment context). In any event, any dif-ference between the “actual and well-founded fear” standard and the“realistic danger” standard has no bearing on the outcome of this case,and the parties agree that Article III standing should be assessedunder a single standard with respect to all of the plaintiffs’ claims. (Tr.12, 54.) Therefore, the Court applies the “actual and well-founded fear”standard to all of the challenges to the FAA.

In addition, because the potential enforcement of the challengedstatute accounts for all of the injuries asserted under each constitu-tional claim; the parties agree that Article III standing should beassessed under a single standard with respect to all of the plaintiffs’claims; and separate standing analyses for each constitutional claimwould not affect the outcome of this case, the Court does not undertakea separate standing analysis with respect to each alleged constitutional

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urge that their fear of surveillance is “actual and well-founded” because, according to the plaintiffs, “the FAAauthorizes the government to monitor plaintiffs’ inter-national communications” and “plaintiffs’ communica-tions are likely to be collected under the challenged law”based on the nature of the communications and the iden-tity of the persons with whom the plaintiffs communi-cate. (Pl.’s Reply Br. 4.) (emphasis in original).

The Government argues that the plaintiffs’ fear thattheir communications will be monitored under the FAAdoes not confer standing on the plaintiffs to challengethe constitutionality of that statute. The Governmentcontends that standing to make a pre-enforcement chal-lenge to a statute may only be found “where there is athreat of imminent enforcement of a specific proscrip-tion that demonstrably applies to a plaintiff ’s actions”(Gov’t Reply Br. 2-3), and that no such basis for a pre-enforcement challenge to the FAA exists here.

The plaintiffs have failed to establish standing tochallenge the constitutionality of the FAA on the basisof their fear of surveillance. The plaintiffs can only dem-onstrate an abstract fear that their communications willbe monitored under the FAA. The FAA creates aframework within which intervening federal officials

violation. See Duke Power Co. v. Carolina Envtl. Study Group, Inc.,438 U.S. 59, 78 (1978) (holding that plaintiffs need not “demonstrate aconnection between the injuries they claim and the constitutional rightsbeing asserted”); United Presbyterian Church in the United States ofAmerica v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) (Scalia, J.) (conduct-ing collective standing analysis for First, Fourth, and Fifth Amendmentclaims and separation of powers claims); cf. Friends of the Earth v.Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185 (2000) (standing must bedemonstrated separately for injunctive relief and civil penalties becausethese are different forms of relief ).

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may apply for approval from the FISC to authorize sur-veillance targeting non-United States persons locatedoutside the United States to acquire foreign intelligenceinformation. The FAA sets forth the requirements thatan application to obtain a surveillance order from theFISC must satisfy. Contrary to the characterization ofthe statute in the plaintiffs’ motion papers, the FAA it-self does not authorize the surveillance of the plaintiffs’communications. Indeed, the FAA neither authorizessurveillance nor identifies on its face a class of personsthat includes the plaintiffs. Rather the FAA authorizesspecified federal officials to seek a surveillance orderfrom the FISC. That order cannot target the plaintiffsand whether an order will be sought that affects theplaintiffs’ rights, and whether such an order would begranted by the FISC, is completely speculative.

1.

Courts have explicitly rejected standing based on afear of surveillance in circumstances similar to those inthis case. In United Presbyterian Church in the UnitedStates of America v. Reagan, 738 F.2d 1375 (D.C. Cir.1984) (Scalia, J.), the Court of Appeals for the District ofColumbia Circuit denied standing to plaintiffs seeking tochallenge the constitutionality of Executive OrderNo. 12333 (the “Executive Order”). The Executive Or-der created a framework within which intelligence agen-cies could apply to the Attorney General for approval tocollect, retain or disseminate certain kinds of intelli-gence information. See Executive Order No. 12333 at¶¶ 2.3, 2.5. The Executive Order set forth the kinds ofinformation that could be collected and established limi-tations on permissible collection techniques, includingelectronic surveillance under certain circumstances.

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Executive Order No. 12333 at ¶¶ 2.3, 2.4, 2.5. The plain-tiffs were political and religious organizations that theCourt assumed were more likely than the public at largeto be subject to surveillance under the Executive Order.See United Presbyterian, 738 F.2d at 1380. The Courtrejected the plaintiffs’ attempt to rely upon the “threat”of surveillance for standing to challenge the ExecutiveOrder, explaining that “[t]he problem with [the plain-tiffs’] attempt to rely upon this sort of harm to establishstanding in the present case is that they have not ade-quately averred that any specific action is threatened oreven contemplated against them.” Id . The Court ob-served that “[t]o give these plaintiffs standing on thebasis of threatened injury would be to acknowledge, forexample, that all churches would have standing to chal-lenge a statute which provides that search warrants maybe sought for church property if there is reason to be-lieve that felons have taken refuge there. That is not thelaw.” Id .

The plaintiffs’ attempt to rely upon their fear of sur-veillance as a basis for standing in this case is not mate-rially distinguishable from the attempt that was rejectedin United Presbyterian. As in United Presbyterian, theplaintiffs in this case have not shown that any specificaction is threatened or even contemplated against them.They have not shown or alleged that the Governmenthas sought or obtained approval from the FISC to au-thorize surveillance of their communications. They havenot shown or alleged that surveillance of their communi-cations has ever taken place under the challenged stat-ute. They only allege a fear, based on a perceived likeli-hood, that their communications will be surveilled. Butabsent any showing that such surveillance has been con-

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ducted, authorized or even contemplated, the plaintiffs’fear is speculative.

Moreover, the alleged injury in this case is even morespeculative than the injury asserted in United Presbyte-rian because the FAA requires a court to approve theapplication for surveillance, which includes making anindependent judgment with respect to whether theguidelines proposed by the Executive Branch to circum-scribe the requested surveillance comply with theFourth Amendment. The intervening role carved out forthe Judicial Branch in the FAA makes the plaintiffs’assertion of standing on the basis of their fear of surveil-lance uniquely attenuated.

Arguments for standing similar to those asserted bythe plaintiffs here were also rejected by the Court ofAppeals for the Sixth Circuit in ACLU v. NSA, 493 F.3d644 (6th Cir. 2007). ACLU involved a challenge to theconstitutionality of the Terrorist Surveillance Program(the “TSP”) conducted by the National Security Agency(the “NSA”). The TSP entailed the warrantless inter-ception of telephone and email communications withrespect to which one party was located outside theUnited States and the NSA had a reasonable basis toconclude that one party was connected to al Qaeda. SeeACLU, 493 F.3d at 648. The plaintiffs were journalists,academics and lawyers who regularly communicatedwith individuals located overseas whom they believedthe NSA suspected of being connected to al Qaeda andwhom they believed the NSA would therefore be likelyto monitor under the TSP. Id . at 648-49. The ACLU de-cision was fragmented into three opinions: a lead opin-ion, a concurrence, and a dissent. Both the lead opinionand the concurring opinion rejected the plaintiffs’ alle-

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gation that they had standing on the basis of their fearof surveillance pursuant to the TSP.13

The lead opinion rejected this basis for standing onthe rationale that “it would be unprecedented for thiscourt to find standing for plaintiffs to litigate a FourthAmendment cause of action without any evidence thatthe plaintiffs themselves have been subjected to an ille-gal search or seizure.” Id . at 673-74 (Batchelder, J.).The concurring opinion rejected standing on thegrounds that the plaintiffs had not shown that they were“personally subject to” the warrantless surveillance pol-icy. Id. at 691 (Gibbons, J., concurring). The concurringopinion drew an implicit distinction between proof ofbeing subject to the surveillance policy and proof of hav-ing been subjected to actual surveillance pursuant tothat policy. The former consisted of “evidence as towhether, in the government’s view, there are reasonablegrounds to believe that a party to the [plaintiffs’] com-munications is affiliated with al Qaeda.” Id . at 690 (Gib-bons, J., concurring) (internal quotation marks omitted).It was the failure to present such evidence that was fatalto the plaintiffs’ assertion of standing. Relying onUnited Presbyterian, the concurring opinion distin-guished cases involving “[a] genuine threat of enforce-ment of a policy against a plaintiff who is demonstrablysubject to that policy,” which supports standing, fromcases “in which a plaintiff cannot establish that he issubject to the policy but merely fears that he is subjectto the policy that may be enforced, which cannot support

13 The lead opinion only discussed this basis for standing in the con-text of determining whether the plaintiffs had standing to bring FourthAmendment claims in connection with the TSP. However, the leadopinion denied the plaintiffs standing to bring any of their claims.

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standing.” Id . at 689 n.2 (Gibbons, J., concurring). Theplaintiffs could not demonstrate a genuine threat of sur-veillance because they could not show that they weresubject to the challenged surveillance policy—that theywould be targeted by the policy. See id . at 691 (Gibbons,J., concurring) (“There is no relevant factual differencebetween the United Presbyterian Church plaintiffs,whose activities the D.C. Circuit conceded made themmore likely to be subject to surveillance, and the attor-ney-plaintiffs in this case, whose representation of ex-actly the types of clients targeted by the TSP makesthem more likely to be targeted by the TSP.” Id. at 691(Gibbons, J., concurring) (internal citations omitted).

The plaintiffs in this case, like the plaintiffs in ACLUand United Presbyterian, have not made any showingthat they are subject to the surveillance policy they seekto challenge. Without showing that they are subject tothe statute they seek to challenge, the plaintiffs’ fearthat they will suffer harm from that statute is specula-tive and hypothetical.

Indeed, the plaintiffs in this case are one step furtherremoved from the challenged surveillance policy thanwere the plaintiffs in ACLU. The plaintiffs in ACLUsought to challenge an actual program of surveillancethat had already been authorized by the President. SeeACLU, 493 F.3d at 648 n.1. The TSP was more than aframework within which federal officials could apply forauthorization to engage in surveillance. The NSA wasalready authorized to monitor communications with re-spect to which one party was located outside the UnitedStates and there was a reasonable basis to believe thatone party was connected to al Qaeda. As the concurringopinion in ACLU explained, the plaintiffs in that case

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could not show that they were subject to that authoriza-tion of surveillance because they could not show thattheir communications fell into the class of communica-tions that the NSA was authorized to monitor. By con-trast, the FAA does not authorize surveillance but rath-er authorizes the FISC to do so pursuant to the proce-dures set forth in the statute. Thus the standing argu-ment by the plaintiffs in this case is more speculativeand hypothetical than the standing argument rejectedby the Court of Appeals for the Sixth Circuit in ACLU.No case from within or outside the context of surveil-lance provides any basis to conclude that the speculativefear of harm asserted by the plaintiffs is sufficient tosupport standing for a pre-enforcement challenge to astatute.

2.

At oral argument the plaintiffs sought to minimizethe persuasiveness of United Presbyterian and ACLU,which denied standing to plaintiffs who feared the sur-veillance of their communications, by pointing to “physi-cal surveillance cases” where the Supreme Courtreached the merits of challenges to laws or policies au-thorizing drug or alcohol testing for specific classes ofpersons, without requiring that the plaintiffs had actu-ally submitted to such testing before bringing such chal-lenges. (Tr. 9 (“The cases I’m thinking of are cases likeEarls and Chandler and Skinner.”).) None of thosephysical search cases identified by the plaintiffs under-mines the reasoning of the electronic surveillance cas-es or otherwise provides any support for the plaintiffs’standing argument. The physical search cases con-cerned plaintiffs who were in a defined class of personssubject to a challenged policy of drug or alcohol testing

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and who faced a genuine threat of being tested pursuantto that policy. In Board of Education of IndependentSchool District Number 92 of Pottawatomie County v.Earls, 536 U.S. 822, 826 & n.1 (2002), the SupremeCourt found that a student plaintiff who participated incompetitive extracurricular activities at school hadstanding to challenge a Board of Education policy re-quiring all students participating in such activities toconsent to drug testing. It was indisputable in Earlsthat the challenged policy required a student who partic-ipated in such extracurricular activities, such as theplaintiff, to take a drug test before participating in theactivity, and to submit to random drug testing while par-ticipating in the activity at any time based on reasonablesuspicion. Earls, 536 U.S. at 826. Earls therefore hasno application to this case, where the plaintiffs are notrequired to do anything or to submit to anything, andwhere there is no showing that the Government has au-thorized any action against the plaintiffs. See alsoChandler v. Miller, 520 U.S. 305, 308-09 (1997) (rulingon merits, without discussing standing, where plaintiffcandidates for state offices challenged state law requir-ing candidates for such offices to certify that they hadtaken a urinalysis drug test within 30 days prior to qual-ifying for nomination and that the test results were neg-ative).

Among the drug or alcohol testing cases, the plain-tiffs place particular emphasis on Skinner v. RailwayLabor Executives’ Association, 489 U.S. 602, 611 (1989),in which the Supreme Court upheld on the merits regu-lations authorizing railroads to conduct drug and alcoholtesting of railroad employees after certain accidents, inthe event of certain rule violations, or where a supervi-sor had a reasonable suspicion based on personal obser-

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vation that an employee was under the influence of alco-hol. Skinner provides little guidance for the standinganalysis in this case because standing was not contestedin that case. It was not discussed by the SupremeCourt, the issue was not briefed before the Court, andthe appellate court decision contained no discussion ofstanding. See Ry. Labor Executives’ Ass’n v. Burnley,839 F.2d 575 (9th Cir. 1988).

To the extent that the Supreme Court implicitly de-termined that there was standing in Skinner as a neces-sary prerequisite to jurisdiction, nothing about that de-termination affects the standing analysis in this case.The regulations at issue in Skinner authorized drug oralcohol testing of a defined class of persons representedby the plaintiff labor organizations, namely railroad em-ployees. The plaintiffs were plainly subject to the chal-lenged policy. By contrast, the FAA neither authorizessurveillance nor identifies, on its face, a class of personsto which the plaintiffs belong, and there is no allegationor evidence of an order authorizing Government surveil-lance that would encompass the plaintiffs’ communica-tions. Thus the relation in which the railroad employeesstood to the challenged policy in Skinner is wholly un-like the relation in which the plaintiffs in this case standto the FAA.

3.

Thus the electronic surveillance cases undermine anyclaim of standing in this case, and the drug or alcoholtesting cases on which the plaintiffs rely do not supportthe plaintiffs’ claims of standing to challenge the FAAbased on their fear of surveillance. However, the plain-tiffs urge the Court to look beyond surveillance cases.(See Tr. 11 (“Surveillance is just like any other context.

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. . . [I]t’s a completely artificial distinction betweensurveillance cases [and] other contexts.”).) The plain-tiffs claim that their position is supported by cases out-side the surveillance context considering the issue ofstanding to make a pre-enforcement challenge to a stat-ute or regulation. They argue that under those casesthey have shown an “actual and well-founded fear of en-forcement” of the FAA against them that is sufficient forstanding in this case.

The plaintiffs’ reliance on non-surveillance cases con-sidering pre-enforcement challenges to statutes or regu-lations is unavailing. The standing analysis displayed inthose cases is fully consistent with the rejection ofstanding in the electronic surveillance cases. Indeed,the application of the reasoning employed by the non-surveillance cases to this case reinforces the plaintiffs’lack of standing to challenge the FAA. The non- surveil-lance cases cited by the plaintiffs stand for the proposi-tion that a plaintiff may challenge a specific law or regu-lation before it is enforced against the plaintiff if theplaintiff is subject to that law or regulation and has awell-founded fear that it will be so enforced. The plain-tiffs in this case have made no showing that they aresubject to any specific law or regulation that they seekto challenge. The FAA does not require that the plain-tiffs do anything or refrain from doing anything suchthat they might have a well-founded fear that the Gov-ernment would take action against them for failing toabide by the statute. Moreover, the FAA does not au-thorize surveillance of the plaintiffs’ communicationsand the plaintiffs have made no showing that the Gov-ernment has sought any such surveillance pursuant tothe general framework set forth in the statute or thatsuch surveillance has been authorized. It is unnecessary

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to seek to define the outer limits of what it would takefor the plaintiffs to be subject to the FAA such that theywould have standing to challenge its constitutionality.The plaintiffs’ failure to show that they are subject tothe FAA in any concrete way is sufficient to concludethat the plaintiffs lack standing to challenge the FAA.

Under the line of non-surveillance cases referredto by the plaintiffs, “[a] plaintiff bringing a pre-enforcement facial challenge against a statute need notdemonstrate to a certainty that it will be prosecutedunder the statute to show injury, but only that it has anactual and well-founded fear that the law will be en-forced against it.” Vt. Right to Life, 221 F.3d at 382 (in-ternal quotation marks omitted). The plaintiffs seek tocouch their fear of surveillance under the FAA as an“actual and well-founded fear” that the FAA will be en-forced against them. But the cases are clear that anactual and well-founded fear of enforcement dependsupon a reasonable showing that the plaintiff is subject tothe challenged law or regulation. In the cases cited bythe plaintiffs involving pre-enforcement challenges tonon-surveillance statutes, the plaintiffs in those caseswere subject to a challenged statute or regulation suchthat there would be consequences resulting from a fail-ure to comply. Courts reasonably have allowed chal-lenges to such legal proscriptions without requiring theplaintiff to incur the penalties of non-compliance. Cf.Babbitt v. United Farm Workers National Union, 442U.S. 289, 302-03 (1979) (granting standing for pre-enforcement challenge to certain provisions of statutebased on “realistic danger” of enforcement where plain-tiffs intended to engage in conduct “arguably prohibitedby the statute”); Pacific Capital Bank, N.A. v. Connecti-cut, 542 F.3d 341, 350 (2d Cir. 2008 (finding standing for

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pre-enforcement challenge by national bank to statestatute limiting certain interest rates where plaintiff“reasonably interpreted [the statute’s] limitation as, onits face, applying to [the plaintiff]”; Vt. Right to Life, 221F.3d at 383 (finding standing for pre-enforcement chal-lenge to statute proscribing range of activities relatingto campaign finance disclosure and reporting require-ments where plaintiff ’s interpretation of proscription tocover its activities was “reasonable,” and plain-tiff ’s activities “could easily be construed” to fall with-in the statute’s proscription); Nitke v. Gonzales, 413F. Supp. 2d 262, 267 (S.D.N.Y. 2005) (per curiam) (“[T]oshow that a fear [of enforcement] is well-founded, theplaintiff must show that it is reasonable. A fear that astatute will be enforced against a plaintiff is reasonableif the plaintiff ’s interpretation of the statute to reach hisor her conduct is itself reasonable.”) (internal citationand quotation marks omitted).

Every non-surveillance pre-enforcement challengecase cited by the plaintiffs involved a law or regulationthat could, at the very least, reasonably be interpre-ted on its face to apply to the plaintiffs in that case.The plaintiffs in such cases faced the risks of non-compliance unless they received judicial relief from en-forcement of the statute or regulation against them.See, e.g., Am. Booksellers Ass’n, 484 U.S. at 392 (grant-ing standing for pre-enforcement challenge to statutewhere “the law is aimed directly at plaintiffs, who, iftheir interpretation of the statute is correct, will haveto take significant and costly compliance measures orrisk criminal prosecution”); Am. Booksellers Founda-tion, 342 F.3d at 100-01 (finding standing for pre-enforcement challenge to state statute proscribing resi-dents from distributing pornographic material harmful

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to minors where statute “reach[ed] material posted onplaintiffs’ websites”); New Hampshire Right to Life Po-litical Action Committee v. Gardner, 99 F.3d 8, 14 (1stCir. 1996) (“The record reveals that [the plaintiff] in-tends to engage in political expenditures of a type pro-tected under the First Amendment, and New Hamp-shire’s statutory scheme restricts [the plaintiff ’s] free-dom to make those expenditures.”) (internal citationomitted); see also Pac. Capital Bank, 542 F.3d at 350;Vt. Right to Life, 221 F.3d at 383.

The plaintiffs attempt to stretch the pre-enforcementcases to apply to their challenge to the FAA even thoughthose cases do not arise in the context of electronic sur-veillance or surveillance of any kind, and even thoughthe facts of those cases bear no resemblance to thestanding issues raised in the context of the FAA. A fun-damental tenet of standing is that a plaintiff must showthat the plaintiff has suffered an actual or imminent in-jury in fact, that is concrete and particularized, and notconjectural or hypothetical. Lujan, 504 U.S. at 559. Ineach of the pre-enforcement cases, the plaintiff or plain-tiffs could point to a specific statute that reasonablycould be applied to them and which produced conse-quences if they failed to comply. That provided concreteand particularized injury.

In this case, the plaintiffs have not made a reason-able showing that they are subject to the challengedstatute in any way. The FAA does not require the plain-tiffs to do anything or refrain from doing anything, anddoes not authorize surveillance to which the plaintiffswill be subject. The statute cannot reasonably be inter-preted on its face to apply to the plaintiffs, because itneither authorizes surveillance nor refers to a class of

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persons that on its face could reasonably be construed toinclude the plaintiffs. Moreover, there is no allegationor evidence that an order has been obtained pursuant tothe statute authorizing the surveillance of communica-tions that could reasonably be construed to include theplaintiffs’ communications. Therefore the plaintiffs can-not establish standing on the basis of a well-founded fearof enforcement. The plaintiffs have failed to show thatthere is anything to enforce, because they have failed toshow that they are subject to the statute. The plaintiffs’alleged fears of enforcement arising from the fact thatsurveillance orders of unknown scope may eventually beissued that may affect them bear no resemblance to thefears of enforcement of specific statutes or regulationsthat reasonably apply to complaining plaintiffs and thathave been found sufficient for purposes of standing.

The Supreme Court’s decision in Babbitt, relied uponby the plaintiffs, does not suggest otherwise. In Babbitt,the plaintiffs, including a farmworkers’ union (the“UFW”), challenged, in relevant part, five provisions ofa farm labor statute passed in Arizona. Babbitt, 442U.S. at 292-93. The Court emphasized that “[a] plaintiffwho challenges a statute must demonstrate a realisticdanger of sustaining a direct injury as a result of thestatute’s operation or enforcement.” Id . at 298. TheCourt held that the plaintiffs had standing to challengethree of the five provisions of the statute but not theremaining two. The first challenged provision regulatedthe election of employee bargaining representatives,specifying certain procedures for such elections. Id . at292-94, 299. The Court found that the plaintiffs hadstanding to challenge that provision, because “the UFWhas in the past sought to represent Arizona farmworkersand has asserted in its complaint a desire to organize

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such workers and to represent them in collective bar-gaining.” Id . at 300.

The second challenged provision limited consumerpublicity and violations of the statute were criminallypunishable. Id . at 301-02. The Court found that theplaintiffs had standing to challenge that provision be-cause they intended to engage in consumer publicity anderroneous statements would be inevitable. Id . at 302.

The third challenged provision was the criminal pen-alty provision of the statute, which authorized the impo-sition of criminal sanctions against any person violatingany provision of the statute. Id . at 303. The Courtfound that the plaintiffs had standing to challenge thecriminal penalty provision because they intended to en-gage in conduct that may be proscribed by the statute.Id .

Standing for the plaintiffs in Babbitt lends no sup-port to the plaintiffs in this case. In Babbitt the Su-preme Court found that the plaintiffs had standing tochallenge provisions of a statute that could be construedon their face to proscribe or regulate conduct in whichthe plaintiffs wished to engage. The analysis in Babbittcannot be superimposed onto this case. The plaintiffs inthis case have not challenged a statute that regulates orproscribes any conduct by them, as was the case in Bab-bitt, or that otherwise applies to them.

To the extent the decision in Babbitt bears on theissue of standing in this case, it is instructive for its re-jection of the plaintiffs’ bid for standing to challenge oneof the remaining provisions of the statute. That provi-sion provided that no employer was required to furnishcertain information to a labor organization to enablethat organization to communicate with employees of the

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employer, members of the labor organization, its sup-porters, or adherents (the “access provision”). Id . at303-04. The UFW argued that it would seek access toemployers’ property to communicate with farmworkers,which the Court conceded it would do. Id . at 304. How-ever, the Court found the challenge to be non-justiciablebecause the plaintiffs had not yet “assert[ed] an interestin seeking access to particular facilities as well as a pal-pable basis for believing that access will be refused .”Id .; see also id . (“[I]t is conjectural to anticipate thataccess will be denied. More importantly, [plaintiffs’]claim depends inextricably upon the attributes of thesitus involved.”).

The plaintiffs’ challenge to the FAA is similarly non-justiciable. The plaintiffs seek to challenge the FAAwithout any showing that the FISC has approved sur-veillance that could encompass their communications.Thus the plaintiffs in this case lack a “palpable basisfor believing” that their communications will be sur-veilled . In Babbitt it was “impossible to know whetheraccess will be denied to places fitting [plaintiffs’] consti-tutional claim.” Id . The plaintiffs’ claim depended uponthe attributes of the situs to which they sought access,and the plaintiffs had not asserted an interest in gainingaccess to any particular situs. Like the plaintiffs in Bab-bitt attempting to challenge the access provision, theplaintiffs in this case have only a hypothetical fear ofbeing harmed by the statute that is insufficient to sup-port standing.14

14 In Babbitt the Supreme Court also denied the plaintiffs standing tochallenge a compulsory arbitration provision in the statute. The Courtbased its holding in part on the fact that the plaintiffs had “never con-tested the constitutionality of the arbitration clause.” Id. at 305.

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In sum, the plaintiffs’ assertion of standing to chal-lenge the FAA on the basis of their fear of surveillancefinds no support in the cases that have analyzed stand-ing to challenge electronic surveillance. The plaintiffs’argument also finds no support in the cases relating todrug and alcohol testing or the pre-enforcement chal-lenges to non-surveillance statutes and regulations onwhich the plaintiffs rely. In none of those contexts dothe cases provide any support for the proposition that aplaintiff may challenge a statute to which the plaintiffcannot reasonably be considered subject. On its face theFAA does not regulate or proscribe the plaintiffs’ con-duct or authorize surveillance of a class of persons thatincludes the plaintiffs. Moreover, the plaintiffs haveneither alleged nor shown that the Government hassought or obtained an order from the FISC authorizingsurveillance that could reasonably be construed to en-compass their communications. The plaintiffs’ allegedfear of surveillance is insufficient to provide them withstanding to challenge the FAA.

B

The plaintiffs purport not to rely solely upon theirfear of surveillance as a basis for standing to challengethe FAA. They offer what they characterize as a second,independent basis for standing: the costly and burden-some measures they have undertaken, as a result of thatfear, to ensure the confidentiality of their internationalcommunications. The plaintiffs argue that such costsconstitute “specific present objective harm[s]” sufferedas a result of the passage of the FAA and thereforequalify as an injury in fact for purposes of standing. (Tr.18.) The Government counters that any costs incurredby the plaintiffs have resulted not from the challenged

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statute itself but from the alleged subjective chillingeffect the statute has had on the plaintiffs’ communica-tions. The Government urges that the assertion ofstanding on the basis of a “subjective chill” of this kindis foreclosed by Supreme Court precedent.

The costs the plaintiffs have incurred in an effort toprotect the confidentiality of their international commu-nications fail to provide a basis for standing to challengethe constitutionality of the FAA. This second basis forstanding is not truly independent of the first basis; thecosts incurred by the plaintiffs flow directly from theplaintiffs’ fear of surveillance. To allow the plaintiffs tobring this action on the basis of such costs would essen-tially be to accept a repackaged version of the first failedbasis for standing. The plaintiffs cannot manufacture asufficient basis for standing from an insufficient one.

The plaintiffs argue that their fear of surveillancehas chilled their normal exchange of international com-munications and thereby forced them to incur certaincosts to protect the confidentiality of those communica-tions by carrying them out through alternative means.But because the plaintiffs have failed to show that theyare subject to the FAA and that they face a threat ofharm from its enforcement, the chilling of their speechthat they attribute to the statute is actually the result oftheir purely subjective fear of surveillance. The Su-preme Court has held that a subjective chill of this kindis insufficient to support standing. In Laird v. Tatum,408 U.S. 1, 6 (1972), the Supreme Court considered aFirst Amendment challenge to an Army surveillanceprogram that entailed “the collection of informationabout public activities that were thought to have at leastsome potential for civil disorder,” and the dissemination

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and storage of such information within the Army. Theplaintiffs argued that they had standing to challenge theprogram because the existence of the program chilledthe exercise of their First Amendment rights. TheCourt rejected the argument that a plaintiff “who al-leges that the exercise of his First Amendment rights isbeing chilled by the mere existence, without more, of agovernmental investigative and data-gathering activity”has standing to invoke the jurisdiction of a federal court.Id. at 10. Noting that the plaintiffs had failed to connectthe existence of the surveillance program to their ownspeech, the Court held that “[a]llegations of a subjective‘chill’ are not an adequate substitute for a claim of spe-cific present objective harm or a threat of specific futureharm; the federal courts established pursuant to ArticleIII of the Constitution do not render advisory opinions.”Id . at 13-14 & n.7 (internal quotation marks omitted).The Court distinguished its prior cases finding standingto challenge Government conduct that allegedly violatedthe First Amendment by chilling protected speech, ex-plaining that “in each of these cases, the challenged ex-ercise of governmental power was regulatory, proscrip-tive, or compulsory in nature, and the complainant waseither presently or prospectively subject to the regula-tions, proscriptions, or compulsions that he was chal-lenging.” Id . at 11.

Like the plaintiffs in Laird, the plaintiffs in this caseallege that their communications are chilled by the sheerexistence of the challenged policy without connecting thepolicy to their own speech. Therefore the analysis of theplaintiffs’ second purported basis for standing in thiscase is controlled by Laird. In Laird “the chilling effectalleged . . . was so remote and speculative that therewas no justiciable case or controversy and therefore the

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federal courts lacked jurisdiction under Article III ofthe Constitution.” Davis v. Vill. Park II Realty Co., 578F.2d 461, 463 (2d Cir. 1978) (finding standing for FirstAmendment claim alleging that threat of eviction, mani-fested in attempt by defendant management company toterminate tenant plaintiff ’s lease, chilled plaintiff ’s ex-pressive activity in connection with tenants’ association).The same is true in this case, where the plaintiffs havefailed to make any showing that they are subject to theFAA.

The plaintiffs insist that the Supreme Court’s dis-tinction in Laird between the challenged policy in thatcase and challenged exercises of Government power inprevious cases that were “regulatory, proscriptive, orcompulsory in nature” was only a distinction and not aprospective rule that plaintiffs may only challenge Gov-ernment policies that are regulatory, proscriptive, orcompulsory. See Socialist Workers Party v. AttorneyGeneral of the United States, 419 U.S. 1314, 1318 (1974)(Marshall, J., sitting as Circuit Justice) (“In my view. . . the Court [in Laird] was merely distinguishingearlier cases, not setting out a rule for determiningwhether an action is justiciable or not.”); ACLU, 493F.3d at 693 n.3 (Gibbons, J., concurring) (“The languagein Laird about regulation, proscription, and compulsionto me seems merely descriptive of the facts in priorcases in which the Supreme Court had found standing.”);but see ACLU, 493 F.3d at 661 (Batchelder, J.) (“[T]oallege a sufficient injury under the First Amendment, aplaintiff must establish that he or she is regulated, con-strained, or compelled directly by the government’s ac-tions. . . .”).

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It is unnecessary to decide whether an argument forstanding based on a chill of expressive activity should belimited to cases in which the plaintiff is complainingabout a statute or regulation that is “regulatory, pro-scriptive, or compulsory in nature” or whether a plaintiffcan allege such a chill based on a statute or regulation towhich the plaintiff is otherwise subject. The plaintiffs inthis case have failed to show that they are subject to thestatute other than by speculation and conjecture, whichis insufficient for standing. The plaintiffs in this casehave made no showing that they are subject to the stat-ute they seek to challenge, and therefore have made noshowing that they face a danger of being harmed as aresult of the statute. In the standing context the indi-rect harm of a chilling effect on speech may only be as-serted in conjunction with a danger of direct harm fromthe challenged statute, because that danger is the sourceof the chill. See Laird, 408 U.S. at 12-13 (“[G]overnmen-tal action may be subject to constitutional challengeeven though it has only an indirect effect on the exerciseof First Amendment rights. At the same time, however. . . to entitle a private individual to invoke the judicialpower to determine the validity of executive or legisla-tive action he must show that he has sustained, or is im-mediately in danger of sustaining, a direct injury as theresult of that action.”) (internal quotation marks andellipsis omitted). As the Supreme Court explained: “Al-legations of a subjective ‘chill’ are not an adequate sub-stitute for a claim of specific present objective harm ora threat of future harm; the federal courts establishedpursuant to Article III of the Constitution do not renderadvisory opinions.” Id . at 13-14 (internal quotationmarks omitted).

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A plaintiff ’s claim that a Government policy chills theplaintiff ’s expressive activity is not an independentbasis to challenge the policy. The alleged chill must begrounded in a threat of harm from the policy to whichthe plaintiff can reasonably argue he is subject; other-wise the chill is plainly subjective. Cf. Davis, 578 F.2dat 463 (chilling effect grounded in threat of eviction). Achilling effect can only be a product of a threat of directharm, not a “substitute” for such a threat. Laird, 408U.S. at 14.

The plaintiffs argue that the chilling effect the FAAhas had on their speech cannot be considered subjectivebecause they have incurred real, objective costs to avoidsurveillance. Embedded in that argument is a misun-derstanding of what was meant in Laird by the term“subjective.” In Laird the Supreme Court found that aplaintiff cannot establish standing by “alleg[ing] that theexercise of his First Amendment rights is being chilledby the mere existence, without more, of a governmentalinvestigative and data-gathering activity. . . .” Id . at10. What made the chilling effect subjective in Lairdwas the plaintiffs’ failure to show that they were subjectto the challenged policy and faced a threat of harm fromit. The plaintiffs could only show that the surveillancepolicy existed. The plaintiffs’ failure to substantiate thealleged chill with proof that they really were subject tothe information gathering policy made their alleged chill“subjective.” See Ozonoff v. Berzak, 744 F.2d 224, 229(1st Cir. 1984) (Breyer, J.) (interpreting phrase “withoutmore” in Laird to mean that “[t]he plaintiffs in Lairddid not claim that the information gathering activitieswere directed against them specifically or that the gath-ered data could be directly used against them in anyforeseeable way”). All of the plaintiffs’ alleged “objec-

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tive” expenditures are insufficient to establish standingbecause they all arise from the plaintiffs’ choices to in-cur expenditures and costs that are not based on a suffi-cient showing that the statute in question was directedat them.

The Court of Appeals for the District of ColumbiaCircuit relied upon Laird in rejecting the allegation ofa chilling effect as a basis for standing in United Presby-terian. The United Presbyterian Court denied standingto certain political and religious organizations to chal-lenge an Executive Order that provided a framework foragencies within the intelligence community to seek andobtain approval from the Attorney General for certainkinds of surveillance. One of the bases for standing thatwas proffered by the plaintiffs and rejected by the Courtwas the assertion that their expressive activities werechilled by the fear that their communications would besurveilled under the Executive Order. See United Pres-byterian, 738 F.2d at 1378. In rejecting this basis forstanding, the Court explained that “[a]ll of the SupremeCourt cases employing the concept of the ‘chilling effect’involve situations in which the plaintiff has unquestion-ably suffered some concrete harm (past or immediatelythreatened) apart from the ‘chill’ itself.” Id . In UnitedPresbyterian the plaintiffs could not point to any suchconcrete harm because they could not show that “anyspecific action [was] threatened or even contemplatedagainst them” with respect to the Executive Order.Id. at 1380.

The same analysis applies in this case. The plaintiffshave not shown that any specific action is threatened orcontemplated against them because they have not shownthat they are subject to the FAA. Therefore they have

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failed to allege a concrete harm “apart from” the chillingeffect on their international communications, and thechilling effect is their subjective fear of being surveilledwhich is insufficient in the absence of evidence that theyare subject to surveillance under the statute. Cf. ACLU,493 F.3d at 688 (Gibbons, J., concurring) (rejecting as-sertion of standing based on chilling effect together withassertion of standing based on “well-founded fear” ofsurveillance because “[t]he disposition of all of the plain-tiffs’ claims depends upon the single fact that the plain-tiffs have failed to provide evidence that they are per-sonally subject to the [challenged surveillance pro-gram].”).

The plaintiffs cite a number of cases allowing chal-lenges to statutes or policies based on the chilling effectsuch statutes or policies had on a plaintiff ’s expressiveconduct. But in each of those cases, the plaintiff was sub-ject to the challenged policy and faced potential harmfrom the enforcement of the policy. In Meese v. Keene,481 U.S. 465, 467 (1987), the plaintiff alleged that he waschilled from exhibiting three films because under thechallenged statute they would be labeled “political pro-paganda,” thereby injuring his reputation. Crucially,there was no question in Meese that the statute appliedto the films the plaintiff wished to exhibit. See Meese,481 U.S. at 467 n.1. That fact distinguishes Meese fromthis case. In holding that the plaintiff had standing inMeese, the Supreme Court emphasized that the plaintiffhad shown that he faced a threat of harm from the stat-ute if he chose to exhibit the films. See id . at 473 (“Wefind, however, that [the plaintiff] has alleged and demon-strated more than a ‘subjective chill’; he establishes thatthe term ‘political propaganda’ threatens to cause himcognizable injury.”). The Court explained that under

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Laird, if the plaintiff could not show that the label of“political propaganda” would be harmful to him, hewould not have standing to challenge the statute. Seeid . The plaintiff plainly could not have shown that thelabel would be harmful to him without showing that hisfilms would be subject to the label. The finding that theplaintiff ’s films were subject to the challenged statutewas a predicate to the finding of standing in Meese forwhich there is no corollary in this case.

The plaintiffs fare no better in their reliance onOzonoff. In Ozonoff, the Court of Appeals for the FirstCircuit found standing to challenge an Executive Orderbased on the chilling effect it would exert on theplaintiff ’s expressive activity. See Ozonoff, 744 F.2d at228. The Executive Order provided for a loyalty check,conducted by the Executive Branch, of persons who ap-plied to work for the World Health Organization (the“WHO”). See id . at 225. The plaintiff in Ozonoff “wouldlike to work” for the WHO, and thus there was no ques-tion that he was subject to the policy of loyalty checksand the potential harm of being denied a job with theWHO on account of being found disloyal if the policywere enforced . Id . The Court found standing based onthe plaintiff ’s assertion that he planned to apply for ajob with the WHO and the challenged policy chilled hisexpressive conduct by discouraging activity that mightbe considered disloyal. See id . at 228-29. The Courtexplained that the relevant inquiry was “whether theOrder reasonably leads [the plaintiff] to believe he mustconform his conduct to its standards.” Id . at 229-30. Indistinguishing the case from Laird, the Court madeclear that the reasonableness of that belief depended onthe plaintiff being subject to the challenged policy: “Theplaintiffs in Laird did not claim that the information

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gathering activities were directed against them specifi-cally or that the gathered data could be directly usedagainst them in any foreseeable way.” Id . at 229 (em-phasis in original).

The plaintiffs in this case have not shown that thechallenged statute is directed against them. The chillingeffect in Ozonoff was the result of the plaintiff ’s fear ofharm from the enforcement of a policy to which he wassubject. Because that much has not been shown in thiscase, the alleged chill of the plaintiffs’ speech in this caseis not analogous to the chill of the plaintiff ’s speech inOzonoff. Cf. also Socialist Workers Party, 419 U.S. at1315 (Marshall, J., sitting as Circuit Justice) (grantingstanding to challenge prospective surveillance of con-vention where plaintiffs “apparently learned that theFBI planned to monitor the . . . convention”).

The plaintiffs claim to find support for their asser-tion of standing based on the chilling of their speech inFriends of the Earth, Inc. v. Laidlaw EnvironmentalServices (TOC), Inc., 528 U.S. 167 (2000). In Laidlaw,the Supreme Court found that environmental groupswhose members, among other things, wished to use andenjoy a river into which the defendant was dumping pol-lutants, had standing to sue the defendant.15 SeeLaidlaw, 528 U.S. at 181-82. The Court found that theplaintiffs had demonstrated injury in fact based on theevidence that members of the plaintiff environmentalgroups were deterred from using the river by the defen-dant’s pollution. See id . at 183. The plaintiffs suggest

15 The plaintiffs in Laidlaw also included a person whose propertyvalue was allegedly diminished by the pollution of the river and anotherwho would like to purchase a home near the river but did not intend todo so because of the pollution. See id . at 182.

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that their own reluctance to engage in internationalcommunications is analogous to the reluctance of theLaidlaw plaintiffs to use the river. They extrapolatefrom that analogy that they have standing to challengethe FAA.

The plaintiffs’ reliance on Laidlaw is plainly mis-placed. Laidlaw did not concern an alleged chill of FirstAmendment activity, making any comparison betweenthe plaintiffs’ second purported basis for standing in thiscase and the plaintiffs’ basis for standing in Laidlawstrained at best. In any event, Laidlaw does not helpthe plaintiffs. In Laidlaw the members of the plaintifforganizations had allegedly ceased to use the river be-cause of the concrete harm caused by the defendant’sdischarge of pollutants into the river. The discharge ofpollutants was already occurring and there was no ques-tion that the plaintiffs were affected by the dischargebecause they ceased to use the river as a result of thedefendant’s activity that allegedly harmed the river inwhich they had an environmental interest. Cf. ACLU,493 F.3d at 689 (Gibbons, J., concurring) (“[I]n Laidlaw,the plaintiff ’s [sic] fear of harm from the defendant’sundisputed conduct—conduct that would also undisput-ably affect plaintiffs personally if they undertook theirdesired activities—was sufficient to support standing.”)(emphasis in original)).16 In this case, the plaintiffs’reluctance to engage in their desired speech is self-imposed because their fear of surveillance under theFAA is an abstract and hypothetical one, for all of the

16 Judge Gibbons explained: “I read Laidlaw to require that plaintiffsdemonstrate that they (1) are in fact subject to the defendant’s conduct,in the past or future, and (2) have at least a reasonable fear of harmfrom that conduct.” ACLU, 493 F.3d at 689 (Gibbons, J., concurring).

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reasons explained above. Thus the reasoning behind thefinding of standing in Laidlaw does not support theplaintiffs’ standing argument in this case.

The plaintiffs’ reliance on United States v. SCRAP,412 U.S. 669 (1973), fares no better. Like Laidlaw,SCRAP did not involve an alleged chill of First Amend-ment activity. Indeed, the analysis of standing inSCRAP did not concern any sort of deterrence or dis-couragement of the plaintiffs’ behavior.

SCRAP concerned a challenge by environmentalgroups, among others, to a decision by the InterstateCommerce Commission (the “Commission”) allowingrailroads to collect a 2.5% percent surcharge on freightrates. SCRAP, 412 U.S. at 678. The plaintiff groupsargued that the surcharge would harm them by makingthe use of recycled goods more expensive, thereby im-pacting forests and other natural environments thatmembers of the plaintiff groups used and intended touse. See id . at 684-85. The Court acknowledged skepti-cism with respect to whether the plaintiffs would be ableto prove that the surcharge would harm the areas of theenvironment in which the plaintiffs had an interest. Seeid . at 688 (referring to chain of causation as “attenu-ated”). Nevertheless, the Court found standing becausethe plaintiffs’ allegations, “if proved, would place themsquarely among those persons injured in fact by theCommission’s action[.]” Id . at 690. The standing issuein SCRAP arose on a motion to dismiss based on thepleadings, and therefore the Court’s doubts as towhether the plaintiffs would be able to prove that thesurcharge would cause them harm did not bear on thestanding analysis. See id . at 683-84.

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It is difficult to understand how the plaintiffs canfind any analogy between the standing analysis inSCRAP and their effort to allege standing in this case.In SCRAP, the conduct challenged by the plaintiffs wasthe Commission’s authorization of the railroads to col-lect a surcharge that the plaintiffs alleged would injurethem. The collection of the surcharge had already beenauthorized and the plaintiffs alleged facts that, if true,would “place them squarely among those persons in-jured” by the surcharge. The plaintiffs’ fear of surveil-lance under the FAA in this case bears no relation to theplaintiffs’ fear of harm from the surcharge in SCRAP.The plaintiffs in this case have neither alleged norshown that surveillance encompassing their communica-tions has been authorized or even that such authoriza-tion has been sought by the Government. Neither inSCRAP nor in any case cited by the plaintiffs has anycourt found that a plaintiff had standing to bring a law-suit in circumstances remotely similar to these.

For all of the reasons explained above, the plaintiffs’second purported basis for standing cannot survive thefailure of the first. Therefore the costs incurred by theplaintiffs in seeking to protect their international com-munications from surveillance under the FAA do notconstitute a basis for standing for the plaintiffs’ consti-tutional challenge to that statute.

CONCLUSION

For all of the foregoing reasons, the plaintiffs lackArticle III standing to bring this constitutional chal-lenge to the FAA. The plaintiffs’ motion for summaryjudgment is denied. The Government’s motion for sum-mary judgment is granted. The Clerk is directed to

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close Docket Nos. 6 and 12 and to enter judgment dis-missing the complaint and closing this case.

SO ORDERED.

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APPENDIX C

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

No. 09-4112-cv

AMNESTY INTERNATIONAL USA, ET AL.,PLAINTIFFS-APPELLANTS

v.

JAMES R. CLAPPER, JR., ET AL.,DEFENDANTS-APPELLEES

Filed: Sept. 21, 2011

ORDER

Following disposition of this appeal on March 21,2011, Defendants-Appellees James R. Clapper, Jr. et al.filed a petition for rehearing in banc. A poll of the ac-tive members of the Court having been conducted, andthere being no majority favoring in banc review, rehear-ing in banc is hereby DENIED.

GERARD E. LYNCH, Circuit Judge, concurs by opin-ion in the denial of rehearing in banc.

REENA RAGGI, Circuit Judge, joined by DENNISJACOBS, Chief Judge, JOSÉ A. CABRANES, RICHARD C.WESLEY, and DEBRA ANN LIVINGSTON, Circuit Judges,dissents by opinion from the denial of rehearing in banc.

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DEBRA ANN LIVINGSTON, Circuit Judge, joined byDENNIS JACOBS, Chief Judge, JOSÉ A. CABRANES,REENA RAGGI, and RICHARD C. WESLEY, CircuitJudges, dissents by opinion from the denial of rehearingin banc.

DENNIS JACOBS, Chief Judge, dissents by opinionfrom the denial of rehearing in banc.

PETER W. HALL, Circuit Judge, dissents by opinionfrom the denial of rehearing in banc.

FOR THE COURT:

/s/ CATHERINE O’HAGAN WOLFE CATHERINE O’HAGAN WOLFEClerk

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GERARD E. LYNCH, Circuit Judge, concurring in thedenial of rehearing en banc:

While I usually consider opinions concurring in adenial of en banc review unnecessary, I write briefly inresponse to my colleagues’ dissents from denial of re-hearing en banc because, in the absence of any paneldissent, some of their criticisms have not previouslybeen aired. For the most part, the panel opinion speaksfor itself; answers to nearly all of the dissents’ pointscan be found there. See Amnesty Int’l USA v. Clapper,638 F.3d 118 (2d Cir. 2011). Nevertheless, I take thisopportunity to respond directly to a few points.1

As an initial matter, I agree with the dissenters thatthis case clearly satisfies Federal Rule of Appellate Pro-cedure 35(a)(2)’s exceptional-importance requirement.And I acknowledge that it may be in some tension withopinions from other circuits (although, as discussed be-low, those cases are largely distinguishable from thisone). But I dispute the dissenters’ assertions that Am-nesty somehow distorts the law of standing or, in JudgeLivingston’s words, “threatens a sub silentio transfor-mation of this Circuit’s case law.” Livingston, J., Op.Dissenting from Denial of Reh’g En Banc (“Livingston,J., Op.”), post at [1]; see also Raggi, J., Op. Dissentingfrom Denial of Reh’g En Banc (“Raggi, J., Op.”), post at[3]. Standing cases are inherently fact specific, and thepanel opinion takes pains to make clear that our conclu-sions regarding standing were limited to this statute,these plaintiffs, and the facts of this case. Furthermore,for the reasons articulated in the panel opinion and be-

1 As senior judges, Judges Calabresi and Sack—the other membersof the panel that heard the appeal—are not eligible to participate indeciding whether to grant a petition for rehearing en banc.

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low, Amnesty fully coheres with established standingdoctrine and does not represent a departure from ourcontrolling precedents.

I. Summary Judgment Standard

A theme that runs through all of the dissents is thatthe panel should have treated the plaintiffs’ avermentsmore skeptically. One dissent, for example, criticizes usfor our overly “credulous[]” and insufficiently skepticalreading of the record. See Jacobs, C.J., Op. Dissentingfrom Denial of Reh’g En Banc (“Jacobs, C.J., Op.”), postat [3]; see also Raggi, J., Op., post at [22-25]. But any“credul[ity]” displayed by the opinion reflects not anynaïveté on the part of the panel, but the requirements ofthe procedural posture of the case. The case came to uson summary judgment, and the government expresslychose to accept the plaintiffs’ allegations as true for pur-poses of the standing motion.2 Thus, the panel opinionreviews the record as we are required to review it: ac-cepting the plaintiffs’ allegations as true, drawing allreasonable factual inferences in their favor, and viewingtheir factual assertions in the light most favorable tothem. As this Court has long held, even if evidence“greatly taxes the credulity of the judge,” that alone

2 See Amnesty, 638 F.3d at 129 (“The government did not submit anyevidence of its own either in opposition to the plaintiff ’s submissions, orin support of its own summary judgment motion. Additionally, at oralargument on the summary judgment motions, the government said itaccepted the factual submissions of the plaintiffs as true for purposesof those motions.”); id . at 141 (“The plaintiffs have . . . testfi[fied] thatthey have altered their conduct and thereby incurred specific costs inresponse to the FAA. As discussed above, we must accept that undis-puted testimony . . . .”); see also Lujan v. Defenders of Wildlife, 504U.S. 555, 561 (1992) (on summary judgment, evidence to support stand-ing “will be taken to be true”).

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does not justify a grant of summary judgment. SeeArnstein v. Porter, 154 F.2d 464, 469 (2d Cir. 1946) (cita-tion omitted).

Judge Raggi points out, correctly, that where thecourt’s subject matter jurisdiction is at issue, as in thecase of constitutional standing, courts have an “ ‘inde-pendent obligation’ ” to question even undisputed facts,necessary to the court’s jurisdiction, that are assertedby parties. Post at [25] (quoting Ariz. Christian Sch.Tuition Org., v. Winn, 131 S. Ct. 1436, 1454 (2011)).Certainly, parties cannot confer jurisdiction on the courtby stipulating to facts that are false. But this is hardlyan example of collusive stipulation to facts that, as ChiefJudge Jacobs would have it, are fanciful. See post at [1,5, 7]. As the panel opinion carefully notes, the plaintiffs’sworn testimony about their activities, and about theirreasons for believing that their communications arelikely to be intercepted if the government uses the au-thority provided by the FAA, are anything but implausi-ble.

There is no reason to believe that the government,which vigorously contests standing, is collusively declin-ing to challenge the plaintiffs’ factual presentation inorder to obtain a decision on the merits by creating anillusion of jurisdiction on the part of the court. Thecourt’s obligation to question assertions of fact does notextend permission for judges to substitute their ownbeliefs—derived from their own notions about what isand is not likely to be true—about the truth of the sortof ordinary factual matters that are eminently determi-nable by the usual factfinding processes of the court, butthat the moving party (and especially the government,

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which has ample resources to litigate those matters)declines to challenge.

Because the plaintiffs’ facts were uncontroverted,they necessarily constituted the main basis on which thepanel could assess standing. There is precedent for de-clining to rule on standing and remanding the issue tothe district court. See, e.g., Fund for Animals v. Bab-bitt, 89 F.3d 128, 134 (2d Cir. 1996). But in that case, theissue of standing “was neither ruled on by the districtcourt nor fully briefed by the parties.” Id. In Amnesty,by contrast, the standing issue was ruled on by the dis-trict court and fully briefed by both sides. The panelfully satisfied its “independent obligation” to assess theplaintiffs’ standing.

II. The Statute

The dissenters go to great lengths to downplay thesignificance of the changes contained in the FISAAmendments Act (“FAA”), and to suggest that the panelsomehow misinterpreted the statute’s scope or opera-tion. See, e.g., Raggi, J., Op., post at [30-32].

As the panel opinion explains, the FAA indisputablyand significantly broadens the risk of interception, low-ers the government’s probable-cause burden, and de-creases the oversight role of the Foreign IntelligenceSurveillance Court (“FISC”). Prior to the FAA, the gov-ernment was required to identify its specific surveillancetargets to the FISC. The FISC would issue a warrantonly if it found there was probable cause that the targetwas a foreign power or an agent of a foreign power, andthat the target was using or about to use the facility tobe monitored. In other words, the FISC had to findprobable cause for each specific search, and maintained

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a continuing oversight role after each probable-causedetermination. See Amnesty, 638 F.3d at 122-24.

The FAA significantly alters these procedures. Un-der Section 702 of the FAA, the FISC need only findthat the government’s general procedures comply withthe statute’s subsections and with the Fourth Amend-ment; the probable-cause determinations are no longerparticularized. The Attorney General no longer needsto identify specific surveillance targets to the FISC. See50 U.S.C. § 1881a(g)(4). The FAA requires him (and theDirector of National Intelligence) only to provide “writ-ten certification” that targets are outside the UnitedStates. Id. § 1881a(g)(1)(A). The FISC, in order to is-sue a warrant, must find only that the executive’s tar-geting procedures are “reasonably designed to” (i) en-sure that any acquisition conducted under the authoriza-tion “is limited to targeting persons reasonably believedto be located outside the United States,” and (ii) “pre-vent the intentional acquisition of any communication asto which the sender and all intended recipients areknown at the time of the acquisition to be located in theUnited States.” Id. § 1881a(i)(2)(B). The FISC no lon-ger considers individual surveillance applications, butrather is charged only with overseeing whether theagency has complied with FISA’s general proceduralrequirements. Id. § 1881a(i)(2), (3)(A). The dissentsmake much of the FAA’s requirement that the FISCdetermine whether the government’s procedures complywith the Fourth Amendment, but, again, under the FAAthat analysis is limited to the government’s general pro-cedures. Unlike the prior FISA regime, the FISC plays

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no role in reviewing the basis for any particular surveil-lance undertaken by the government.3

Additionally, as the opinion explains, “[u]nder theFAA, in contrast to the preexisting FISA scheme, theFISC may not monitor compliance with the targetingand minimization procedures on an ongoing basis. In-stead, that duty falls to the AG and [Director of NationalIntelligence], who must submit their assessments tothe FISC, as well as the congressional intelligence com-mittees and the Senate and House Judiciary Commit-tees.” Amnesty, 638 F.3d at 125 (citing 50 U.S.C.§ 1881a(l)(1)).

The government itself admits that the FAA differssignificantly from the previous version of FISA. In itspetition for rehearing en banc, the government notes,for example, that “[u]nlike traditional FISA surveil-lance, Section 702 does not require the Government toestablish individualized probable cause or to identify thespecific facilities at which the acquisition will takeplace.” Pet. for Reh’g 4. Indeed, Congress presumablywould not have bothered to amend FISA if the new ver-sion of the statute were not appreciably different fromthe old. And as the opinion makes clear, proponents ofthe statute argued that it was necessary precisely be-cause it made possible expanded surveillance that wouldnot have been permitted under prior law. See Amnesty,638 F.3d at 122; see also 154 Cong. Rec. H5756 (daily ed.June 20, 2008) (statement of Rep. Smith); 154 Cong.

3 In making this point, I in no way suggest that such a specific reviewis constitutionally required. That is one of the issues to be addressedon the merits. The point is only that the FAA changes the prior regime,in a way that adversely affects the plaintiffs’ situation and makes sur-veillance easier and therefore more likely.

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Rec. S6178-79 (daily ed. June 26, 2008) (statement ofSen. Graham). Nor did the government ever “identifywhat is wrong with the plaintiffs’ interpretation [of theFAA], or what a more appropriate interpretation wouldbe. At oral argument, we asked the government to clar-ify what it found inaccurate in the plaintiffs’ character-ization, and again it failed to do so.” Amnesty, 638 F.3dat 128 n.8.4 At no point has the government explainedwhy the plaintiffs’ or the panel’s characterization of theFAA is inaccurate.

III. Standing

Turning to the standing analysis, it is commonground that standing requires injury in fact, causation,and redressability. The dissents seem to suggest thatthe opinion somehow muddles these well-establishedrequirements, see, e.g., Livingston, J., Op., post at [3-9],when in fact the opinion analyzes each element sepa-rately and in detail, see Amnesty, 638 F.3d at 131-45.The plaintiffs demonstrated present injuries in factby “alleg[ing] . . . the expenditure of funds.” Id. at133. Their declarations—which, as discussed previously,we are bound to accept as true and which the govern-ment accepted for purposes of summary judgment—“establish[ed] that they have already incurred profes-sional and economic costs to avoid interception.” Id.

4 As noted in the panel opinion, the plaintiffs alleged that under theFAA, “an acquisition order could seek, for example, ‘ [a]ll telephone ande-mail communications to and from countries of foreign policy interest—for example, Russia, Venezuela, or Israel—including communicationsmade to and from U.S. citizens and residents.’ Moreover, the specificshowing of probable cause previously required, and the requirement ofjudicial review of that showing, have been eliminated. The governmenthas not directly challenged this characterization.” Amnesty, 638 F.3dat 126.

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The plaintiffs satisfied the causation requirement be-cause “the professional and economic harms [they] suf-fered . . . were fairly traceable to the FAA.” Id. at134. And they demonstrated redressability because thediscrete injury of which they complained—the increasedlikelihood of interception specifically caused by theFAA—would be relieved by a decision in their favor. See id . at 140 n.24.

The dissents also seem to misunderstand our injuryanalysis. The opinion addresses two different theoriesof injury: present injury and future injury. As to pres-ent injuries, the opinion explains that the plaintiffs’ un-disputed (for purposes of this motion) economic and pro-fessional harms are an injury in fact, and the same anal-ysis that supports the conclusion that the plaintiffs’present-injury theory satisfies the causation prong fur-ther supports the conclusion that the plaintiffs’ future-injury theory properly satisfies the injury-in-fact prong.See id. at 133-40.

Furthermore, it is emphatically not the case that, asone dissent contends, “[t]he panel opinion bases its find-ing of injury and causation entirely on the ethical dutiesof lawyers and the affidavits of the lawyer plaintiffs.”Jacobs, C.J., Op., post at [4]. The opinion makes abun-dantly clear that the panel’s analysis is not focused ex-clusively on lawyers. The plaintiffs’ evidence of sensi-tive communications affected by the statute, cited indetail in the opinion, concerned journalists as well aslawyers, and referred to numerous categories of conver-sations of a sort not limited to attorneys.5 Indeed, the

5 See, e.g., Amnesty, 638 F.3d at 127 (“The plaintiffs’ [undisputed]evidence tended to show that their work ‘requires them to engage insensitive and sometimes privileged telephone and e-mail communica-

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panel concluded that a lawyer’s ethical duties and a jour-nalist’s prudent exercise of her role brought us to thesame conclusion—that is, all of the plaintiffs reasonablyincurred professional and economic costs in order toprotect clients or sources.6

tions with colleagues, clients, journalistic sources, witnesses, experts,foreign government officials, and victims of human rights abuses lo-cated outside the United States.’ ”); id. at 127 n.11 (“Journalist NaomiKlein . . . communicates with sources abroad, including Mexican indi-viduals regarding military activity in Chiapas, Argentinian advocatesfor indigenous rights, and indigenous Colombian groups who opposeU.S. trade policies. Likewise, journalist Chris Hedges, whose writingfocuses on American and Middle Eastern politics and society, maintainsregular contact with academics, journalists, politicians, and activists inplaces such as Iran, Syria, Libya, Kosovo, Bosnia, and Sudan. He alsocommunicates with political activists and civil society leaders in Pales-tine, whom he believes are ‘of interest’ to the U.S. government.”); id. at143 (“[T]he various groups of plaintiffs—attorneys, journalists, andhuman rights, labor, legal, and media organizations—have establishedthat they have legitimate interests in not being monitored.”); id. (“Jour-nalists Klein and Hedges, for example, assert that if their communica-tions with their sources were overheard, those sources’ identities,political activities, and other sensitive information would be disclosed,which would expose them to violence and retaliation by their own gov-ernments, non-state actors, and the U.S. government.”); id. at 144 n.27(“Both the attorneys and the non-attorneys have reason to fear beingmonitored under the challenged statute . . . .”).

6 Judge Livingston argues that these plaintiffs have suffered noactual or imminent harm. Post at [1-3]. If I simply answer, as she con-tends, “Not so,” that is because it simply is not so. The plaintiffs havesworn that they have suffered harm, in that it has become more difficultand expensive to practice their professions as a result of the enactmentof the FAA, and the government has chosen not to contest that evi-dence. The dissenters’ argument is not that these costs have not beenimposed upon the plaintiffs, but that the courts should not recognizethis kind of harm as conferring standing. That argument is not unrea-sonable; the question is a close one. But it should not be pretended thatthese harms do not exist, or that the requirement that only persons

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Next, one of the dissents submits that “any burdenimposed on plaintiffs by the risk of [FAA-authorized]surveillance arose under the pre-FAA regime as well.”Jacobs, C.J., Op. 7. But for the reasons already dis-cussed, and as explained in detail in the opinion, theFAA significantly broadens the risk of interception be-yond that which existed under the previous version ofFISA. Furthermore, as explained in the panel opinion,because the government “accepted the factual submis-sions of the plaintiffs as true for purposes of [the sum-mary judgment] motions,” we “must accept the plain-tiffs’ evidence as undisputed explanations of how theFAA has affected them.” Amnesty, 638 F.3d at 129.7

with a concrete stake in the matter may seek judicial relief is violatedin some unquestionable way when persons whose lives and occupationshave been affected by changes in the law are permitted to raise consti-tutional objections to those changes. The decision to close the court-house door to such claims is an exercise of judicial power that muststand or fall on the strength of the proffered reasons why such harmdoes not satisfy the purposes of the standing rule. For the reasons stat-ed in the panel opinion, it will not do to write off the plaintiffs as simplyfolks who, unhappy with the Congress’s resolution of the policy argu-ments for and against the FAA, seek to continue the political “discus-sion,” Raggi, J., Op., post at [5 n.3]. As the standing doctrine requires,they are people who assert that the law has specifically affected themin a way that gives them a concrete stake in the controversy, and thusa right to present their arguments (persuasive or otherwise) that thestatute infringes rights conferred on them by the Constitution.

7 See also Amnesty, 638 F.3d at 129 n.13 (“At oral argument on thisappeal, the government professed itself ‘puzzled’ as to why the plaintiffshad not been just as nervous about being monitored before the FAAwas enacted as they are now. To the extent that that statement ques-tioned whether the plaintiffs genuinely fear being monitored after theFAA’s enactment more than they did before it, the government cannotraise that challenge on appeal. . . . The time to challenge the accuracyof the plaintiffs’ assertions in their declarations has passed. The gov-

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The dissents further contend that the plaintiffs lackstanding because their asserted injuries are not redress-able. See Jacobs, C.J., Op., post at [6-8]; Raggi, J., Op.,post at [33-38]. But the plaintiffs’ uncontroverted testi-mony indicated that their contacts believed they weremore likely to be monitored under the FAA than underthe previous version of FISA. In their Local Rule 56.1Statement—which, I repeat at risk of redundancy, thegovernment declined to dispute—the plaintiffs said that“the threat of surveillance under the new law has a muchgreater impact on their work than previous U.S. govern-ment surveillance.” Amnesty, 638 F.3d at 129 n.13 (in-ternal quotation marks and alterations omitted). Thus,we concluded that the plaintiffs had “established thatthe relief they seek would redress their asserted injuriesin fact, because their injuries stem from their reasonablefear of being monitored by FAA-authorized governmentsurveillance, and if a court grants their requested re-lief—an injunction prohibiting the government fromconducting surveillance under the FAA—the feared sur-veillance would no longer be permitted and thereforewould, presumably, no longer be carried out.” Id. at 140n.24.8

ernment could have filed its own evidence, or sought an evidentiaryhearing on the accuracy of the plaintiffs’ claims, but it did neither.”).

8 Judge Raggi appears to question whether plaintiffs can assert aFourth Amendment right not to be surveilled, given that any surveil-lance authorized by the FAA would not have targeted them, renderingthem mere “coincidental interceptees.” Post at [11-12]. This seems tobe a question about the merits of the plaintiffs’ claims, rather thanabout their standing to make them. Plaintiffs claim that they have aright not to have their conversations intercepted by surveillance that isnot based on specifically targeted probable cause. The merits of thisclaim, especially given the urgent justifications for the surveillancelikely to be asserted by the government, may well be questionable. But

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In addition, contrary to the dissents’ contentions, see,e.g., Jacobs, C.J., Op., post at [7-8], to establish redress-ability the plaintiffs need not show that a judgment intheir favor would prevent all possible interception, orthat they would not suffer injuries under the pre-FAAversion of FISA. “[A] plaintiff satisfies the redress-ability requirement when he shows that a favorable deci-sion will relieve a discrete injury to himself. He neednot show that a favorable decision will relieve his everyinjury.” Larson v. Valente, 456 U.S. 228, 244 n.15(1982). Where a challenged action increases an alreadyextant risk of harm to a plaintiff, the elimination of thataction would redress the harm it causes—even if it doesnot eliminate the preexisting risk. Massachusetts v.EPA, 549 U.S. 497, 525-26 (2007).

The dissents also make much of the timing of theplaintiffs’ challenge, pointing out that the plaintiffs filedtheir suit on the same day that the FAA was passed.This fact is not unusual in the context of a facial chal-lenge, and in any event has no bearing on whether theplaintiffs could have suffered actual injury as a result ofthe government’s use of its authority under Section 702.

Judge Raggi’s suggestion that United States v. White, 401 U.S. 745(1971), disqualifies “coincidental interceptees” from asserting a FourthAmendment interest is unpersuasive. White rejected a Fourth Amend-ment claim by a person who voluntarily confided in an acquaintance whovoluntarily recorded the conversation and reported it to the authorities.Such consensual recording is not analogous to non-consensual intercep-tion. If the mere fact that the targets of the surveillance, as non-UnitedStates persons abroad, have no right to contest electronic surveillanceof their conversations entailed that no American who was overheardcould object to the surveillance either, plaintiffs would not have stand-ing even if they knew for certain they had been intercepted, and Ameri-can citizens’ conversations with foreigners abroad would have no pro-tection whatsoever.

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Indeed, there would seem to be no difference betweenthe “reasonable likelihood” that the plaintiffs will besurveilled under the FAA on day one of the FAA’s effectand the likelihood that they will be surveilled on anyother day in the future.

Finally, the dissents repeatedly characterize as“speculative” the plaintiffs’ assertion that their overseascontacts are likely to be government targets under theFAA. This characterization is hard to take seriously.As the opinion explains, the plaintiffs’ overseas contactsinclude, for example, alleged Al Qaeda members (andGuantanamo detainees) Khalid Sheik Mohammed andMohammedou Ould Salahi, as well as those men’s fami-lies. See Amnesty, 638 F.3d at 127 n.11. Furthermore,as discussed above, the government accepted the plain-tiffs’ factual submissions as true for summary judgmentpurposes, and never submitted evidence of its own. Theplaintiffs reasonably asserted that their contacts were“likely targets of FAA surveillance,” and the govern-ment never “disputed that assertion.” Id. at 139.9 The

9 Judge Raggi argues that the plaintiffs “can only speculate” aboutwhether FAA surveillance of themselves or their foreign contacts is“certainly impending,” notwithstanding that she “assumes” that the ex-ecutive will exercise FAA authority, which, she further assumes, en-compasses “dragnet surveillance.” Post at [27]. The contradiction ispalpable. How can the costs and burdens asserted by plaintiffs be deni-grated as “self-inflicted,” Livingston, J., Op., post at [3], when it is as-sumed that the FAA authorizes secret “dragnet surveillance” centeredon targets that these specific plaintiffs (as distinct from most Ameri-cans) have legitimate reasons to engage? Of course, given the necessar-ily secret nature of the interceptions authorized by the FAA, the plain-tiffs almost certainly will never know with the certainty and specificitydemanded by Judge Raggi that their conversations have been over-heard as a result of FAA surveillance orders. But on the assumptionsthat Judge Raggi makes—which seem to me unquestionably correct—

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plaintiffs here, in short, have incurred present, concretecosts, because their fear of being subjected to surveil-lance is reasonable.10

IV. Circuit Split

Judge Raggi contends that the panel opinion createsa circuit split concerning the standards for “evaluatingstanding to challenge foreign intelligence surveillanceprograms.” Raggi, J., Op., post at [3]; see also id. at [27-30]. While I concede that Amnesty is in some tensionwith United Presbyterian Church v. Reagan, 738 F.2d1375 (D.C. Cir. 1984), and ACLU v. NSA, 493 F.3d 644(6th Cir. 2007)—the two principal cases with which thedissenters argue that Amnesty creates a circuit con-flict—Amnesty is nevertheless distinguishable in severalways from those cases. I will describe a few points ofdistinction here; the panel opinion itself provides a fullerdiscussion. See Amnesty, 638 F.3d at 148-49.

United Presbyterian Church concerned a “general-ized challenge” to “the constitutionality of the entirenational intelligence-gathering system,” 738 F.2d at1381 (internal quotation marks omitted), whereas thepresent case involves a specific challenge to a specificstatute. Furthermore, the D.C. Circuit found that theplaintiffs’ injuries were not concrete, but amounted to

the plaintiffs have every reason to believe that such interceptions willoccur, and to take costly and burdensome steps in the present if theywish to avoid that result. Their professional lives have thus been direct-ly affected by the existence of the FAA.

10 In contrast, the plaintiff in City of Los Angeles v. Lyons, 461 U.S.95 (1983), could not, as Judge Raggi suggests, post at [14], have givenhimself standing by choosing to move out of the city, precisely becausehe did not have any reasonable expectation that he would be subjectedto chokehold tactics in the future.

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little more than a subjective “chilling effect.” Id. at1378-80. In the present case, by contrast, the plaintiffshave attested that they suffered concrete harms—in-cluding the expenditure of funds—and the governmenthas not offered contrary evidence.

ACLU v. NSA is similarly distinguishable, as it in-volved a challenge not to specific legislation, but ratherto the National Security Agency’s warrantless wiretapprogram, which targeted individuals the governmentbelieved to be associated with Al Qaeda. 493 F.3d at648. In the present case, by contrast, the plaintiffs chal-lenge a statute that, they argue, “permits dragnet sur-veillance—including surveillance directed at entire geo-graphic areas.” Appellants’ Br. 48. They contend thatunder such a “dragnet,” their communications “are farmore likely to be acquired . . . than under a programof individualized surveillance that focuses solely on thecommunications of terrorism suspects,” and that drag-net surveillance poses “far graver” consequences tothem than the warrantless wiretapping posed to theplaintiffs in ACLU v. NSA. Id. Additionally, in thatcase, the government argued that it would not be able toaddress the question of standing without disclosing statesecrets. ACLU v. NSA, 493 F.3d at 650. As the Am-nesty plaintiffs correctly point out, in the present case“the government has not invoked the state secrets privi-lege and has not controverted plaintiffs’ assertion thattheir communications are likely to be acquired under thestatute.” Appellants’ Br. 49.

The dissents also insist that the panel opinion defiesSupreme Court and Second Circuit precedents. See,e.g., Raggi, J., Op., post at [3] (the panel opinion is“wholly at odds with Supreme Court precedent”);

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Livingston, J., Op., post at [1] (“in frank disregard ofclear Supreme Court authority”). The panel opinionarticulates its reasoning in great detail and explains whyour holding comports with relevant Supreme Court andSecond Circuit precedent. See Amnesty, 638 F.3d at131-49. I will therefore let those portions of the opinionspeak for themselves.

* * *

The critical inquiry for standing is whether the plain-tiffs are simply citizens with an abstract claim that someaction was unlawful, or whether they, in some particularrespect not shared by every person who dislikes the ac-tion, are injured by that action. Here, the plaintiffs haveshown that the very existence of an expanded authorityfor the government to monitor electronic communica-tions with foreigners leads them reasonably to fear thattheir communications will be intercepted, and that thisfear inhibits their lawful activities and requires them totake costly actions to avoid such interception. The gov-ernment, despite every opportunity to contest the plain-tiffs’ factual claims, chose to accept them as true. Nordoes the government dispute that the new authority pro-vided by the FAA expands the government’s authorityto wiretap and reduces judicial supervision of such sur-veillance.

The suggestion that the government is not certain touse that authority—which was sought and provided byCongress on the ground that it was necessary to protectthe national security—is fanciful. And in any event theharm claimed by the plaintiffs is not simply that theircommunications may be intercepted, but that the veryexistence of the authority to intercept them itself causesthe harm of which they complain. The plaintiffs there-

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fore are not just people who don’t like the law; they arepeople who reasonably contend that the law imposes aburden on them.

It is important to remember what is at stake here.The government contends, with great facial plausibility,that the law is fully consistent with the Fourth Amend-ment’s prohibition of unreasonable searches and sei-zures, because the paramount necessity of protectingthe nation’s security against very real and dangerousexternal threats requires the limited additional burdenon a discrete category of international communicationsimposed by the statute.

The plaintiffs face a difficult road in persuading acourt that this is not so. There are strong argumentsagainst the plaintiffs’ position on the merits, and theywill be strongly made by the government as this casegoes forward. In the absence of any representations bythe government that addressing these questions woulddisclose state secrets, cf. ACLU v. NSA, 493 F.3d at 650,those arguments should be presented, and presentedforcefully, to the courts. But those who would close thecourthouse door to the plaintiffs do not rely on thosearguments. Instead, they seek to avoid having to makethem. To reject the plaintiffs’ arguments not becausethey lack merit, but because we refuse to hear them,runs a much graver risk than whatever invasion of plain-tiffs’ privacy might be occasioned by the surveillanceauthorized by the challenged statute. The Constitutionsets limits on the powers even of Congress. It is theglory of our system that even our elected leaders mustdefend the legality of their conduct when challenged.Short-circuiting that process risks not only that we willbe governed by unconstitutional laws, but also that legit-

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imate exercises of the lawmaking power will exist undera cloud, undispelled by the light of objective reasoning.

REENA RAGGI, Circuit Judge, with whom ChiefJudge JACOBS, Judge CABRANES, Judge WESLEY, andJudge LIVINGSTON join, dissenting from the denial ofrehearing en banc:

A panel of this court recognizes plaintiffs’ standingto mount a facial Fourth Amendment challenge to an actof Congress that authorizes foreign intelligence surveil-lance subject to statutory conditions, court order, con-gressional supervision—and compliance with the FourthAmendment. The panel reaches this conclusion eventhough plaintiffs cannot be targeted for surveillanceunder that statute, cannot demonstrate actual or immi-nent interception of any of their communications, andmay in fact never experience such interception.

The panel concludes that plaintiffs’ professed fear ofinterception under the statute is sufficient to supportstanding because the fear is not “irrational,” and plain-tiffs incurred costs to conduct conversations in personrather than risk interception. A rule that allows a plain-tiff to establish standing simply by incurring costs inresponse to a not-irrational fear of challenged conductis unprecedented. On that theory, every mobster’s girl-friend who pays for a cab to meet with him in personrather than converse by telephone would be acting on anot-irrational fear of Title III interception and, there-fore, have standing to challenge that statute.

In fact, Supreme Court precedent provides other-wise, holding that a subjective fear of challenged gov-ernment conduct is insufficient to support standing, and

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that forbearance action can do so only when a plaintiffwould otherwise certainly be subject to the challengedconduct. The panel’s reduced standing standard is so atodds with this precedent as to compel rejection en banc.Because this court, by an equally divided vote, declinesto convene for that purpose, I respectfully dissent.

1. Background

In 2008, Congress amended the Foreign IntelligenceSurveillance Act of 1978 (“FISA”) by adding § 702,which authorizes foreign intelligence surveillance ofnon-United States persons located outside this countryconsistent with the Fourth Amendment and pursuant tocourt order and congressional oversight. See FISAAmendments Act of 2008 (“FAA”), Pub. L. No. 110-261,§ 101(a)(2), 122 Stat. 2436 (codified at 50 U.S.C.§ 1881a).1 Plaintiffs are United States persons who(1) cannot, as a matter of law, be targeted for FAA sur-veillance; (2) offer no evidence that their communica-tions ever have been intercepted pursuant to the FAA;and (3) may in fact never be so intercepted. Neverthe-less, they assert standing to challenge the law’s facialconstitutionality and to seek to enjoin all FAA surveil-lance based on their professed fear of coincidental inter-

1 FISA defines “United States person” to mean a citizen or perma-nent resident of the United States; unincorporated associations, a sub-stantial number of whose members are citizens or permanent residentsof the United States; and corporations incorporated in the UnitedStates, unless qualifying as a “foreign power” under the statute. 50U.S.C. § 1801(i).

The FAA allows the executive to target only non-United States per-sons reasonably believed to be located outside this country in order toacquire foreign intelligence information. See id . § 1881a(a)-(b).

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ception in the course of their work-related communica-tions with foreign contacts who might be FAA targets.

On cross-motions for summary judgment, the districtcourt carefully reviewed Supreme Court precedent andconcluded that plaintiffs lacked standing because theirsubjective fear of interception was too speculative todemonstrate the requisite actual or imminent injury.See Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d633 (S.D.N.Y. 2009). A panel of this court reversed, con-cluding that plaintiffs established standing because theysustained actual injury by incurring costs to meet withforeign contacts rather than risk interception of theirelectronic communications. See Amnesty Int’l USA v.Clapper, 638 F.3d 118 (2d Cir. 2011). The panel ruledthat plaintiffs who incur costs to avoid feared govern-ment action have standing to challenge that action aslong as their fears are not “fanciful,” “irrational,” or“clearly unreasonable.” Id. at 133, 135. The panel con-cluded that plaintiffs satisfied this standard becausetheir fears of interception “are based on a reasonableinterpretation of the challenged statute and a realisticunderstanding of the world.” Id. at 139.

This analysis pronounces a novel, relaxed standingstandard wholly at odds with Supreme Court precedent.Further, the adoption of such a standard creates a splitbetween this court and our sister circuits in evaluatingstanding to challenge foreign intelligence surveillanceprograms. See Al-Haramain Islamic Found ., Inc. v.Bush, 507 F.3d 1190, 1205 (9th Cir. 2007); ACLU v.NSA, 493 F.3d 644, 656 (6th Cir. 2007); United Presbyte-rian Church v. Reagan, 738 F.2d 1375, 1380 (D.C. Cir.1984) (Scalia, J.). No member of the court here disputesthe “exceptional importance” of these concerns. Fed. R.

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App. P. 35(a)(2). Meanwhile, a significant number viewsthe panel decision as fundamentally flawed for reasonsdiscussed in detail in this opinion.2 Nevertheless, withlittle more than a token response from the author of thepanel opinion, the court refuses to rehear the case enbanc. I respectfully dissent from that decision.

2. The Nature of Plaintiffs’ Claim Warrants ParticularAttention in Assessing Standing

The panel’s novel conclusion—that self-incurredcosts can establish standing whenever occasioned by anot-irrational fear of being affected by challenged gov-ernment conduct—would warrant en banc review in anycase. This, however, is hardly “any case.” Three fea-tures merit mention before discussing the panel’s gen-eral failure to follow Supreme Court standing precedent.

First, plaintiffs sue to strike down an act of Con-gress. That circumstance, by itself, demands an “espe-cially rigorous” standing inquiry. Raines v. Byrd, 521U.S. 811, 819-20 (1997). The rigorous inquiry require-ment derives from the Constitution’s separation of pow-ers and serves to maintain the proper balance betweenthe least and most democratic branches of the federalgovernment. See Arizona Christian Sch. Tuition Org.v. Winn, 131 S. Ct. 1436, 1441-42 (2011) (observing that“[f]or the federal courts to decide questions of law aris-ing outside of cases and controversies would be inimicalto the Constitution’s democratic character”); ValleyForge Christian Coll. v. Americans United For Separa-tion of Church & State, Inc., 454 U.S. 464, 471 (1982)(recognizing that federal courts do not wield an “uncon-

2 Further reasons for concern are discussed in opinions filed todayby Chief Judge Jacobs and Judge Livingston.

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ditioned authority to determine the constitutionalityof legislative or executive acts”); see also Livingston, J.,Op. Dissenting from Denial of Reh’g En Banc (“Living-ston, J., Op.”), post at [11-12]. Thus, while a court shouldnot hesitate to recognize standing to challenge federallaw where rigorous inquiry demonstrates it exists, acourt cannot excuse a party from that rigorous inquirysimply by proclaiming it “the glory of our system thateven our elected leaders must defend the legality oftheir conduct when challenged.” Lynch, J., Op. Concur-ring in Denial of Reh’g En Banc (“Lynch, J., Op.”), anteat [17-18].3

3 The pronouncement is not quite accurate. To be sure, elected lead-ers must “defend” their conduct—lawful or not—at the ballot box atregular intervals. But they need not defend it in court “when[ever]challenged.” Lynch, J., Op., ante at [18]. Rather, they must do so onlywhen the challenging party can demonstrate an actual or imminentpersonal injury caused by that conduct. See Lujan v. Defenders ofWildlife, 504 U.S. 555, 575 (1992) (observing that injury element ofstanding requires more than “alleged violation of a right to have theGovernment act in accordance with law”). It is this standing issue thathalf of the active members of the court wish to discuss further en banc,and Judge Lynch cannot justify the court’s denial of that discussion bycharging us with fear of another, i.e., the merits of plaintiffs’ claim. SeeLynch, J., Op., post at [17]. Much less can he insinuate that we in thedissent are somehow less sensitive than he to the judiciary’s proper rolein reviewing constitutional challenges to acts of Congress. Indeed, itwas Chief Justice Marshall—a jurist with no crabbed view of the judici-ary’s role or fear of legal discussion—who cautioned that if judicial pow-er were “extended to every question under the constitution,” federalcourts might take possession of “almost every subject proper for legis-lative discussion and decision,” a result unwarranted in a democraticrepublic. 4 Papers of John Marshall 95 (C. Cullen ed. 1984) (quoted inDaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). Mindful ofthis admonition, the Supreme Court has long been careful to observethe “role assigned to the judiciary” within the Constitution’s “tripartiteallocation of power.” Flast v. Cohen, 392 U.S. 83, 95 (1968). Consistent

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Second, plaintiffs cannot themselves be targets of thestatute they seek to invalidate. That fact requires themto make a “much more” convincing showing of standingthan would be demanded of a target. Lujan v. Defend-ers of Wildlife, 504 U.S. 555, 562 (1992) (stating that itis ordinarily “substantially more difficult” to establishstanding to challenge government action that targetssomeone else (internal quotation marks omitted)). Therequirement is based on a prudential concern with en-suring that a party who wishes to use the courts ratherthan the public square to attack legislation asserts hisown concrete claim of injury rather than those of thirdparties. See Warth v. Seldin, 422 U.S. 490, 499 (1975).This prudential rule “frees the Court not only from un-necessary pronouncement on constitutional issues, butalso from premature interpretations of statutes in areaswhere their constitutional application might be cloudy.”United States v. Raines, 362 U.S. 17, 22 (1960).

This last point assumes greater significance in lightof a third feature of the case: the nature and source ofthe personal right asserted by plaintiffs are unclear.“Although standing in no way depends on the merits ofthe plaintiff ’s contention that particular conduct is ille-gal, it often turns on the nature and source of the claimasserted.” Warth v. Seldin, 422 U.S. at 500 (internalcitation omitted). In short, to determine whether aparty satisfies the injury prong of standing, a court mustunderstand what “legally protected interest” has been

with that role, when a party whose opposition to legislation has failedto carry the day in congressional debate seeks to revive the “discussion”in the courts, the law quite reasonably demands a rigorous inquiry intostanding, requiring the party to demonstrate that he is not simply dis-gruntled, but actually injured by the law he challenges.

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invaded. Lujan v. Defenders of Wildlife, 504 U.S. at560. The question requires particular attention when, ashere, Fourth Amendment rights are asserted. See gen-erally Rakas v. Illinois, 439 U.S. 128, 138-41 (1978) (rec-ognizing that identification of standing and substantiveFourth Amendment rights are “intertwined”).4

Plaintiffs submit that the FAA is unconstitutional onits face for authorizing surveillance that violates theFourth Amendment.5 The claim is curious because, on

4 The question of whether a plaintiff asserts a cognizable legal inter-est is closely related but not identical to the question of whether a plain-tiff ’s particular assertion of a cognizable interest is meritorious. Thus,the concerns detailed in the ensuing discussion, which receive no men-tion by the panel, cannot be dismissed as pertaining only to “the meritsof the plaintiffs’ claim, rather than . . . their standing.” Lynch, J., Op.,ante at [11 n.8] (emphasis in original).

5 Insofar as plaintiffs also challenge the FAA on First Amendmentgrounds, that claim appears to be derivative of the charged FourthAmendment violation: “The challenged law violates the First Amend-ment by substantially burdening a broad range of lawful expressiveactivity without adequate justification and by authorizing defendantsto acquire constitutionally protected communications without meaning-ful judicial oversight.” Compl. ¶ 105 (emphasis added). See ACLU v.NSA, 493 F.3d at 657 (Batchelder, J.) (observing that plaintiffs whochallenged warrantless NSA surveillance program on various constitu-tional grounds “have only one claim, namely, breach of privacy, basedon a purported violation of the Fourth Amendment or FISA”). Thismakes sense. Journalists investigating organized crime would hardlybe heard to complain that Title III surveillance, lawful under theFourth Amendment, see, e.g., United States v. Tortorello, 480 F.2d 764,771-75 (2d Cir. 1973), nevertheless violates the First Amendment byburdening their ability to communicate electronically with likely mobtargets who could give them insights into La Cosa Nostra, see generallyUnited States v. Mayer, 503 F.3d 740, 750 (9th Cir. 2007) (explainingthat undercover surveillance lawful under Fourth Amendment does notviolate First Amendment rights); ACLU Found. of S. Cal. v. Barr, 952F.2d 457, 471 (D.C. Cir. 1991) (same in context of FISA surveillance);

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its face, the FAA makes plain that any surveillanceunder that statute must be conducted consistentwith the Fourth Amendment. This is reflected in no lessthan three provisions: (1) § 1881a(b)(5), which mandatesthat FAA surveillance “shall be conducted in a mannerconsistent with the fourth amendment to the Constitu-tion of the United States”; (2) § 1881a(g)(2)(A)(iv), whichrequires the executive to certify to the Foreign Intelli-gence Surveillance Court (“FISA court”) that the proce-dures and guidelines it has adopted to satisfy FAA tar-geting and minimization requirements “are consis-tent with the requirements of the fourth amendmentto the Constitution of the United States”; and(3) § 1881a(i)(3)(A), which conditions the requisite courtorder on a judicial finding that the executive’s targetingand minimization procedures “are consistent . . . withthe fourth amendment to the Constitution of the UnitedStates.” See 154 Cong. Rec. S6388 (daily ed. July 8,2008) (statement of Sen. Bond, then-Vice Chairman, S.Select Comm. on Intelligence) (describing FourthAmendment compliance as “overarching mandate” ofFAA).

In the absence of any evidence of actual surveillancepractices under the FAA, a court cannot assume that theexecutive and the judiciary will flout these statutory re-quirements or misconstrue Fourth Amendment protec-

Gordon v. Warren Consol. Bd . of Educ., 706 F.2d 778, 781 n.3 (6th Cir.1983) (observing that “[c]ourts have recognized that physical surveil-lance consistent with Fourth Amendment protections in connection witha good faith law enforcement investigation does not violate FirstAmendment rights” and collecting cases); see also Zurcher v. StanfordDaily, 436 U.S. 547, 564 (1978) (requiring only that Fourth Amendmentbe applied with “scrupulous exactitude” where First Amendment inter-ests are implicated in search (internal quotation marks omitted)).

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tions. Indeed, the presumption is to the contrary. SeeUnited States v. Chem. Found ., Inc., 272 U.S. 1, 14-15(1926) (“The presumption of regularity supports theofficial acts of public officers, and, in the absence ofclear evidence to the contrary, courts presume that theyhave properly discharged their official duties.”); see alsoHein v. Freedom From Religion Found., Inc., 551 U.S.587, 618 (2007) (Kennedy, J., concurring) (“Governmentofficials must make a conscious decision to obey the Con-stitution whether or not their acts can be challenged ina court of law and then must conform their actions tothese principled determinations.”). Thus, how can theseplaintiffs claim—in a lawsuit filed the very day the FAAbecame law—that a statute to which they are not evensubject, on its face, puts them at risk of any FourthAmendment injury? See Lujan v. Defenders of Wildlife,504 U.S. at 569 n.4 (requiring standing to be determined“on the facts as they existed when the complaint [was]filed” (internal quotation marks and emphasis omit-ted)).6 In the context of such a curious claim, the con-cerns raised by the panel’s decision to lower plaintiffs’constitutional standing burden are heightened by those“prudential principles” whereby the judiciary seeks(1) “to avoid deciding questions of broad social importwhere no individual rights would be vindicated” and

6 Judge Lynch submits that it is not unusual for facial challenges tobe filed on the date of a statute’s enactment. See Lynch, J., Op., anteat [12]. This misses the point. It is certainly unusual to file such a chal-lenge to a statute that, on its face, requires compliance with the veryconstitutional provision that plaintiffs claim will be violated by everyapplication of the law. See generally Sabri v. United States, 541 U.S.600, 609 (2004) (noting that facial challenge “in the strictest sense” isone claiming that “no application of the statute could be constitutional”(emphasis added)).

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(2) “to limit access to the federal courts to those litigantsbest suited to assert a particular claim.” Gladstone Re-altors v. Vill. of Bellwood, 441 U.S. 91, 99-100 (1979); seeWarth v. Seldin, 422 U.S. at 499 (discussing how pru-dential concerns supplement constitutional elements ofstanding).

What individual Fourth Amendment right do plain-tiffs seek to vindicate by this facial challenge? Thequestion admits no easy answer. Plaintiffs assert thatthe FAA “authorizes defendants to acquire the constitu-tionally protected communications of U.S. citizens andresidents”—presumably themselves—without requiringidentification of “the people to be surveilled” and thefacilities to be monitored in “individualized warrantsbased on criminal or foreign intelligence probablecause.” Compl. ¶ 104. But as United States persons,plaintiffs cannot be “the people to be surveilled” underthe FAA; if intercepted at all, it could only be as coinci-dental communicants of FAA targets. Coincidentalinterceptees, however, cannot claim a personal FourthAmendment right to be identified or to have probablecause established as to themselves as a precondition toreasonable surveillance. Cf. United States v. Figueroa,757 F.2d 466, 472 (2d Cir. 1985) (holding that Title III“order which does not specify every person whose con-versations may be intercepted does not per se amount toa ‘virtual general warrant’ in violation of the fourthamendment” (quoting United States v. Kahn, 415 U.S.143, 154 (1974)); United States v. Tortorello, 480 F.2d764, 775 (2d Cir. 1973) (rejecting argument that govern-ment must establish probable cause as to all inter-ceptees: “If probable cause has been shown as to onesuch participant, the statements of the other partici-

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pants may be intercepted if pertinent to the investiga-tion.”).

Alternatively, plaintiffs might be understood to chal-lenge the FAA for failing to require individualized war-rants, particularity, or probable cause with respect toforeign targets. But a non-target’s personal right tochallenge the lawfulness of surveillance of a third partyusually arises only upon the non-target’s actual inter-ception in the course of such surveillance, which plain-tiffs do not allege here. See generally United States v.Fury, 554 F.2d 522, 526 (2d Cir. 1977). In any event,because FAA targets must be non-United States per-sons outside this country, they lack the very FourthAmendment rights with respect to foreign intelligencesurveillance that plaintiffs claim on their behalf. SeeUnited States v. Verdugo-Urquidez, 494 U.S. 259, 274(1990) (holding that foreign persons outside the UnitedStates cannot claim Fourth Amendment protections);accord In re Terrorist Bombings of U.S. Embassies inE. Africa, 552 F.3d 157, 168-69 (2d Cir. 2008).7 Thisgives rise to a question that plaintiffs do not address andfor which no answer can be found either in the panelopinion or Judge Lynch’s concurrence: Under what, ifany, circumstances can a coincidental interceptee claima personal Fourth Amendment right to challenge for-eign intelligence surveillance that is lawful as to its tar-get? In other contexts in which warrantless intercep-tions are lawful as to one party, coincidental intercep-

7 Thus, even if plaintiffs’ hearsay assertion that their foreign contacts“believed they were more likely to be monitored under the FAA” is “un-controverted,” Lynch, J., Op., ante at [11], that belief is irrelevant toidentifying the personal constitutional right that plaintiffs seek to vin-dicate through this action.

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tees have not been found to have a distinct FourthAmendment right. See generally United States v.White, 401 U.S. 745, 751-53 (1971) (holding that conver-sation recorded on consent of one participant did notviolate other participant’s Fourth Amendment rights).8

If, like the district court, the panel had concludedthat plaintiffs lacked standing regardless of the natureof their claims because they failed to show actual or im-minent injury from FAA interception, there would, ofcourse, have been no need to pursue this matter. But Iquestion how, consistent with “the province of the court. . . to decide on the rights of individuals,” Marbury v.Madison, 5 U.S. (1 Cranch) 137, 170 (1803), the panelcould recognize plaintiffs’ standing without a clearercomprehension of the personal Fourth Amendment rightat stake, see Warth v. Seldin, 422 U.S. at 500.

Further, without such an understanding, it is impos-sible to conclude that these plaintiffs are the persons“best suited” to challenge the constitutionality of a stat-ute that cannot target them. Gladstone Realtors v. Vill.of Bellwood, 441 U.S. at 100. Indeed, a contrary infer-ence might be drawn from the fact that, in the FAA,Congress expressly conferred standing on electroniccommunication service providers to challenge directivesrequiring them to provide technical assistance to effectauthorized surveillance. See 50 U.S.C. § 1881a(h)(4).Service providers’ willingness to avail themselves of

8 It is no answer to state that “consensual recording is not analogousto non-consensual interception.” Lynch, J., Op., ante at [11 n.8]. Thequestion, which is only illustrated by White, is whether in any circum-stance where warrantless interceptions are lawful as to one party, thelaw recognizes coincidental interceptees to have a distinct FourthAmendment right to challenge the surveillance.

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such standing is evidenced by the Fourth Amendmentchallenge one such provider filed to surveillance underthe FAA’s predecessor statute, the Protect America Actof 2007 (“PAA”), Pub. L. No. 110-55, 121 Stat. 552. SeeIn re Directives Pursuant to Section 105B of the For-eign Intelligence Surveillance Act (In re FISA Section105B Directives), 551 F.3d 1004 (FISA Ct. Rev. 2008)(discussed further infra at [27-28]). In addition, the lawrecognizes any person’s standing to challenge the legal-ity of FISA-acquired evidence that is offered againsthim in a criminal prosecution. See, e.g., United States v.Abu-Jihaad, 630 F.3d 102, 107-31 (2d Cir. 2010), cert.denied, 131 S. Ct. 3062 ( June 27, 2011); see also 50U.S.C. § 1806(c) (requiring government to notify inter-ceptee of intent to disclose or use information derivedfrom electronic surveillance); id. § 1806(e) (permittinginterceptee to move to suppress information derivedfrom electronic surveillance as unlawfully acquired); id.§ 1881e(a) (subjecting information derived from FAAsurveillance to provisions of § 1806). Thus, a relaxedinquiry into plaintiffs’ standing cannot be justified onthe ground that no one else will be able to challengeFAA surveillance. In any event, the Supreme Court hasexpressly rejected such an argument as a ground forrecognizing standing. See Schlesinger v. ReservistsComm. to Stop the War, 418 U.S. 208, 227 (1974) (citingUnited States v. Richardson, 418 U.S. 166, 179 (1974));accord ACLU v. NSA, 493 F.3d at 675-76 (Batchelder,J.).

Mindful of the heightened scrutiny and prudentialconcerns triggered by these particular aspects of plain-tiffs’ claim, I turn to the even more serious matter of thepanel’s failure to follow Supreme Court standing prece-dent.

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3. The Panel Decision Puts this Court at Odds with Su-preme Court Precedent

Most disturbing about the court’s decision not to con-vene en banc is that it thereby allows a novel, reducedstanding standard, at odds with Supreme Court prece-dent, to become citable as the law of this circuit.9

To establish standing on summary judgment, plain-tiffs were required to demonstrate three elements thatconstitute the “irreducible constitutional minimum” forstanding: (1) an injury in fact, i.e., “an invasion of a le-gally protected interest which is (a) concrete and partic-ularized, and (b) actual or imminent, not conjectural orhypothetical”; (2) a causal connection, i.e., “the injuryhas to be fairly traceable to the challenged action of thedefendant”; and (3) redressability, i.e., “it must belikely, as opposed to merely speculative, that the injurywill be redressed by a favorable decision.” Lujan v. De-fenders of Wildlife, 504 U.S. at 560-61 (internal cita-tions, quotation marks, and alterations omitted).

The obvious concrete injury to be expected from un-lawful electronic surveillance is interception. Plaintiffs,however, offer no evidence that they have ever actuallybeen intercepted by FAA surveillance. Nor have theyestablished that any such interception is “imminent,” a

9 Judge Lynch submits that en banc review is unnecessary becausethe panel’s “conclusions regarding standing were limited to this statute,these plaintiffs, and the facts of this case.” Lynch, J., Op., ante at [1].Would it were so. Standing determinations may be “fact specific,” but“standing concepts,” i.e., the governing legal principles, gain “consider-able definition from developing case law.” Allen v. Wright, 468 U.S.737, 751 (1984). Thus, because the flawed “standing concept” developedby the panel in this case might be read to bind future panels, it meritsen banc review.

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term that the Supreme Court construes to mean “cer-tainly impending.” Id. at 564 n.2 (emphasis in original;internal quotation marks omitted); see also Summers v.Earth Island Inst., 555 U.S. 488, 129 S. Ct. 1142, 1152-53 (2009) (refusing to dilute strict imminence require-ment to demand only “realistic threat that reoccurrenceof the challenged activity would cause the plaintiff harmin the reasonably near future” (emphasis in original;internal quotation marks and brackets omitted)).

Instead, plaintiffs profess only a fear of FAA inter-ception, which is plainly insufficient to establish stand-ing. See City of Los Angeles v. Lyons, 461 U.S. 95, 107& n.8 (1983) (holding that subjective fear of police mis-conduct, even when grounded in past injury, is notenough to demonstrate imminent threat: “It is the real-ity of the threat of repeated injury that is relevant tothe standing inquiry, not the plaintiff ’s subjective appre-hensions.” (emphasis in original)). Rather than followthis precedent to its inevitable conclusion—dismissal ofplaintiffs’ claim for lack of standing—the panel assertsthat it “overstates” the standing standard to requireplaintiffs to demonstrate that it is “effectively certain”that they will be intercepted on FAA surveillance. Am-nesty Int’l USA v. Clapper, 638 F.3d at 135.

How does the panel elide the precise future-injurystandard—“certainly impending”—articulated in Lu-jan? By reasoning that, in lieu of injury inflicted by thegovernment through actual or imminent FAA intercep-tion, plaintiffs can establish standing through self-in-flicted injury, specifically, costs incurred to meet withforeign contacts rather than risk feared FAA intercep-tion. The panel concludes that with actual injury thusestablished, the likelihood of interception becomes rele-

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vant only to causation, i.e., were the incurred costs“fairly traceable” to the FAA? Id. As to this require-ment, the panel uses a purported admonition to set avery low bar—“If the possibility of interception is re-mote or fanciful, [plaintiffs’] present-injury theory failsbecause [they] would have no reasonable basis for fear-ing interception under the FAA, and they cannot boot-strap their way into standing by unreasonably incurringcosts to avoid a merely speculative or highly unlikelypotential harm,” id. at 133-34—which is then applied toidentify a claim for future injury as well. See Lynch, J.,Op., ante at [8] (observing that “the same analysis thatsupports the conclusion that the plaintiffs’ present-in-jury theory satisfies the causation prong further sup-ports the conclusion that the plaintiffs’ future-injurytheory properly satisfies the injury-infact prong” (em-phasis in original)).10

Thus, for the price of a plane ticket, plaintiffs cantransform their standing burden from one requiring ashowing of actual or imminent FAA interception to onerequiring a showing that their subjective fear of suchinterception is not “fanciful,” “irrational,” or “clearlyunreasonable.” Id. at 133, 135. Had the idea only oc-curred to the plaintiff in City of Los Angeles v. Lyons,461 U.S. 95, he presumably could have avoided the needto show an actual or imminent risk of being subjected tothe challenged police chokehold procedure simply bymoving from Los Angeles to Glendale, and then claimingthat the actual injury of his moving costs was “fairly

10 Judge Livingston’s opinion discusses in detail the concerns raisedby the panel’s identification of standing based on a theory of futureinjury. See Livingston, J., Op., post at [4-11].

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traceable” to a not-irrational fear of a procedure towhich he, after all, had already been subjected.11

I doubt that the Supreme Court would have foundsuch an argument convincing in Lyons for the same rea-son it fails to persuade here. Plaintiffs’ costs—to theextent any were even demonstrated, see infra at [23-24]—are fairly attributed not to the FAA but to theirown subjective fear of FAA interception, which theyclaim has chilled their normal exchange of internationalcommunications. The Supreme Court has ruled thatsuch subjective chilling cannot support standing. SeeLaird v. Tatum, 408 U.S. 1, 10 (1972) (holding thatplaintiff “who alleges that the exercise of his FirstAmendment rights is being chilled by the mere exis-

11 Judge Lynch states that Lyons, unlike plaintiffs here, “did not haveany reasonable expectation” that he would be subjected in the future tothe chokehold procedure he sought to enjoin. Lynch, J., Op., ante at [14n.10]. That is Judge Lynch’s conclusion, not the Supreme Court’s,which found standing lacking not because Lyons’ expectations were not“reasonable” but because they were not certain. See City of LosAngeles v. Lyons, 461 U.S. at 106 (holding that for Lyons to establishstanding he had to allege that he would have another encounter with thepolice and that “all police officers in Los Angeles always choke anycitizen with whom they happen to have an encounter” (emphasis inoriginal)). This court cannot reduce the “certainly impending” injuryrequirement for standing to one of reasonableness by pointing toplaintiffs’ self-incurred costs. To do so misreads Lyons and contra-venes the holdings in Lujan v. Defenders of Wildlife, 504 U.S. at 564n.2, and Summers v. Earth Island Inst., 129 S. Ct. at 1152-53. Ratherthan respond to this and other concerns with how far the panel decisiondeparts from Supreme Court precedent, Judge Lynch dismissivelyasserts that the dissenters “seem to misunderstand” the panel’s “injuryanalysis.” Lynch, J., Op., ante at [8]. The wish appears to be father tothe thought. I fear we understand the panel’s analysis all too well, andrecognize that it puts this circuit directly at odds with binding SupremeCourt precedent.

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tence, without more, of a governmental investigative anddata-gathering activity” lacks standing to invoke federaljurisdiction). Applying Laird to plaintiffs’ case, the dis-trict court explained:

What made the chilling effect subjective in Lairdwas the plaintiffs’ failure to show that they were sub-ject to the challenged policy and faced a threat ofharm from it. The plaintiffs could only show that thesurveillance policy existed. The plaintiffs’ failure tosubstantiate the alleged chill with proof that theyreally were subject to the information gathering pol-icy made their alleged chill “subjective.” See Ozonoffv. Berzak, 744 F.2d 224, 229 (1st Cir. 1984) (Breyer,J.) (interpreting phrase “without more” in Laird tomean that “[t]he plaintiffs in Laird did not claim thatthe information gathering activities were directedagainst them specifically or that the gathered datacould be directly used against them in any foresee-able way”). All of the plaintiffs’ alleged “objective”expenditures are insufficient to establish standingbecause they all arise from the plaintiffs’ choices toincur expenditures and costs that are not based on asufficient showing that the statute in question wasdirected at them.

Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d at655. The Laird concerns highlighted by the districtcourt—and referenced by then-Judge Breyer in Ozonoff—are not allayed by plaintiffs’ self-incurred travel costs.As a matter of law, plaintiffs cannot be the targets ofFAA surveillance. Thus, whether they incurred costs ornot, they cannot show that information gathering activi-ties under the challenged statute will be directed againstthem. Indeed, the statute provides specific safeguards

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to ensure against that possibility, see 50 U.S.C.§ 1881a(b)-(d), (f)-(g), as well as strict limits on the useof any information coincidentally intercepted fromUnited States persons, see id . §§ 1801(h), 1806, 1881a(e),1881e(a).

To sidestep the adverse standing conclusion dictatedby Laird, the panel attempts to cabin that SupremeCourt decision to its facts and to dismiss as dictum anypart that might be construed to identify a general rule.See Amnesty Int’l USA v. Clapper, 638 F.3d at 146-48.The panel posits that “the Laird plaintiffs so obviouslylacked standing that the Court did not need to createstricter standing rules in the surveillance context in or-der to deny plaintiffs standing.” Id. at 148.12 I agreethat Laird did not establish “stricter” standing rules forsurveillance cases. But I cannot agree that the SupremeCourt was pronouncing mere dictum when it identifiedcircumstances where a subjective chilling effect cannotsupport standing. The Court made this point in distin-guishing cases in which standing had been recognizedeven though the “deterrent, or ‘chilling,’ effect of gov-ernmental regulations [fell] short of a direct prohibitionagainst the exercise of First Amendment rights.” Lairdv. Tatum, 408 U.S. at 11. It stated as follows:

In none of these cases, . . . did the chilling effectarise merely from the individual’s knowledge that agovernmental agency was engaged in certain activi-

12 The panel’s first observation would presumably have come as asurprise to the four Laird dissenters, especially Justice Douglas, whothought that it was the challenge to, rather than assertion of, plaintiffs’standing that was “too transparent for serious argument.” Laird v.Tatum, 408 U.S. at 24 (Douglas, J., with Marshall, J., dissenting); seealso id . at 38 (Brennan, J., with Stewart and Marshall, JJ., dissenting).

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ties or from the individual’s concomitant fear that,armed with the fruits of those activities, the agencymight in the future take some other and additionalaction detrimental to that individual. Rather, in eachof these cases, the challenged exercise of governmen-tal power was regulatory, proscriptive, or compul-sory in nature, and the complainant was either pres-ently or prospectively subject to the regulations, pro-scriptions, or compulsions that he was challenging.

Id. It can perhaps be debated whether the second sen-tence should be construed as definitional or merely illus-trative of circumstances where a chilling effect can es-tablish standing.13 But what the panel could not do wasdismiss the first sentence, which holds that the circum-stances there identified cannot support standing. Thus,Laird compels the conclusion here that plaintiffs lackstanding because any chilling of their electronic commu-nications with foreign contacts, including costs incurredin forgoing such communications, arose “merely” fromtheir knowledge of the existence of a program that theyfeared could target their contacts. Laird v. Tatum, 408U.S. at 11.

In concluding otherwise, the panel not only fails tofollow Lyons and Laird, but also misapplies Friends ofthe Earth, Inc. v. Laidlaw Environmental Services(TOC), Inc., 528 U.S. 167 (2000). In that case, the Su-

13 Compare ACLU v. NSA, 493 F.3d at 661 (Batchelder, J.) (interpret-ing Laird to require that plaintiff “establish that he or she is regulated,constrained, or compelled directly by the government’s actions”), withid. at 692 n.3 (Gibbons, J., concurring) (observing that language inLaird might be “merely descriptive” of the facts in prior cases in whichthe Court found standing). In fact, the question need not be decided inthis case, as the district court recognized. See Amnesty Int’l USA v.McConnell, 646 F. Supp. 2d at 654 (noting without deciding question).

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preme Court held that plaintiffs who had taken steps toavoid a polluted river had standing to challenge defen-dants’ unlawful discharge of pollutants into the water-way. The panel cites Laidlaw as support for its conclu-sion that “[d]espite not being directly regulated, a plain-tiff may establish a cognizable injury in fact by showingthat he has altered or ceased conduct as a reasonableresponse to the challenged statute.” Amnesty Int’l USAv. Clapper, 638 F.3d at 141. This ignores circumstancescritical to the Laidlaw decision that are notably absentfrom this case. In Laidlaw, the defendant was then ac-tually discharging pollutants into the river, making plain-tiffs’ exposure to those pollutants certain if they re-sumed their abandoned recreational use of the river. Itwas in these circumstances where, but for plaintiffs’ ownforbearance, they would unquestionably have been sub-jected to the injurious conduct, that the Court addressedthe “reasonableness” of plaintiffs’ avoidance of the river.See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.(TOC), Inc., 528 U.S. at 184 (concluding that there was“nothing improbable about the proposition that a com-pany’s continuous and pervasive illegal discharges ofpollutants into a river would cause nearby residents tocurtail their recreational use of that waterway andwould subject them to other economic and aestheticharms” (internal quotation marks omitted)). In short,Laidlaw established a two-step standing inquiry,“requir[ing] that plaintiffs demonstrate that they (1) arein fact subject to the defendant’s conduct, in the past orfuture, and (2) have at least a reasonable fear of harmfrom that conduct.” ACLU v. NSA, 493 F.3d at 689(Gibbons, J., concurring) (emphasis added).

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Here, plaintiffs’ standing claim fails at the first stepof the Laidlaw analysis. They cannot demonstrate thatthe executive is certainly conducting FAA surveillanceof their foreign contacts, much less that if they resumeelectronically communicating with these contacts, theywill in fact be intercepted. Plaintiffs assert that theyreasonably fear such interception, but whether they willever be subject to it remains a matter of complete con-jecture. See id . at 656 (Batchelder, J.) (stating with re-spect to similarly situated plaintiffs that even thoughtheir fears of surveillance “may be reasonable, the alter-native possibility remains that the NSA might not beintercepting, and might never actually intercept, anycommunication by any of the plaintiffs named in this law-suit” (emphasis in original; footnote omitted)).

For that reason, plaintiffs’ situation is more aptlyanalogized to Lyons than to Laidlaw in that they claimonly “ ‘subjective apprehensions’” that FAA surveillancewill “even take place.” Friends of the Earth, Inc. v.Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at 184 (quot-ing Los Angeles v. Lyons, 461 U.S. at 107 n.8, in distin-guishing two cases) (emphasis in Laidlaw). The distinc-tion the Supreme Court thus draws between the factssupporting standing in Laidlaw and those failing to sup-port standing in Lyons must be recognized as “one ofkind, not degree,” i.e., between subjective apprehensionin Lyons as to whether challenged governmental con-duct would even take place, and the subjective issue inLaidlaw as to whether it was reasonable for plaintiffs tofear harm from pollutants that unquestionably were be-ing discharged into the river. ACLU v. NSA, 493 F.3dat 690 (Gibbons, J., concurring). In short, what was un-certain about the claimed injury in Laidlaw was not de-fendants’ conduct—about which there was no doubt—

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but the science of pollution. Likewise, in other “prospec-tive injury” cases cited by the panel, the plaintiffs werefound to have standing because they were subject to theconduct challenged, or at least certainly would be sub-ject to it if they took certain actions within their con-trol.14 Thus, as Judge Gibbons observed, it is error totransform the Supreme Court’s holding in Laidlaw,“under which the plaintiffs who were in fact subject todefendant’s conduct had standing because they reason-ably feared harm from that conduct, into a muchbroader proposition, under which plaintiffs may estab-

14 See, e.g., Davis v. FEC, 554 U.S. 724, 734 (2008) (recognizing plain-tiff candidate’s standing to challenge campaign finance scheme wherehe had already declared his intent to spend in excess of statutory trig-ger and operation of statute would “shortly burden” his expenditure ofpersonal funds); Massachusetts v. EPA, 549 U.S. 497, 521 (2007) (rec-ognizing standing to challenge EPA’s refusal to regulate greenhouseemissions, resulting in “actual and imminent” injury to state coastalproperty due to rising sea levels (internal quotation marks omitted));Pennell v. City of San Jose, 485 U.S. 1, 8 (1988) (holding, on motion todismiss, that complaint adequately alleged facts to show that challengedordinance “will be enforced against” plaintiffs, but “strongly suggest-[ing]” that future litigants “take pains to supplement the record in anymanner necessary” to enable court to address standing inquiry “with asmuch precision as possible”); Meese v. Keene, 481 U.S. 465, 473 (1987)(recognizing standing to challenge statute requiring certain films to belabeled as “political propaganda” where statute undoubtedly applied tofilms plaintiff wished to exhibit); Duke Power Co. v. Carolina Envtl.Study Grp., Inc., 438 U.S. 59, 73-74 (1978) (recognizing standing to chal-lenge liability limitation for nuclear accidents that encouraged construc-tion of nuclear plants because plaintiffs were exposed to “ ‘immediate’adverse effects,” including undisputed low-level radiation emissions);United States v. Students Challenging Regulatory Agency Procedures(SCRAP), 412 U.S. 669, 690 (1973) (holding, on motion to dismiss, thatplaintiffs adequately alleged standing to challenge rail surcharge be-cause if facts alleged were proved true, plaintiffs would be “squarelyamong those persons injured”).

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lish standing by showing merely that they possess a rea-sonable fear of being subject to defendant’s allegedlyharmful conduct.” Id . at 689 (emphasis in original).This court needs to say so en banc.

4. The Factual Record Fails To Satisfy Even thePanel’s Reduced Standing Standard

After pronouncing a reduced standing standard atodds with Supreme Court precedent, the panel allowsplaintiffs to satisfy that standard on a negligible factualrecord. The panel identifies actual present injury basedon plaintiffs’ sworn assertions that “it has become moredifficult and expensive to practice their professions as aresult of the enactment of the FAA.” Lynch, J., Op.,ante at [9 n.6]; see Amnesty Int’l USA v. Clapper, 638F.3d at 133. It is no coincidence that the panel summa-rizes the assertions referenced. A review of the declara-tions submitted by plaintiffs reveals them to be notablylacking in the requisite “specific facts.” Lujan v. De-fenders of Wildlife, 504 U.S. at 561 (internal quotationmarks omitted).15

15 The “certainty and specificity” requirements for standing are notdemanded by this judge, as Judge Lynch suggests, see Lynch, J., Op.,ante at [13 n.9], but by binding Supreme Court precedent. To theextent Judge Lynch submits that it is impossible for plaintiffs to satisfythat standard with respect to their actual interception under a classifiedsurveillance scheme, that does not permit the panel to relieve plaintiffsof the standing burden established by this precedent. See Schlesingerv. Reservists Comm. to Stop the War, 418 U.S. at 227; ACLU v. NSA,493 F.3d at 675-76 (Batchelder, J.); see also Livingston, J., Op., post at[11]. In any event, Judge Lynch does not—and cannot—use that argu-ment to excuse plaintiffs’ failure to adduce “specific facts” to supportthe self-incurred costs prong of even the panel’s reduced standingstandard, a matter wholly within plaintiffs’ personal knowledge.

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Two declarants conclusorily report only that they“will have to travel” at unspecified future times to avoidFAA interception of their conversations with foreignsources. See Mariner Decl. ¶ 10 (stating that, as a resultof FAA, “I will have to travel abroad to gather informa-tion that I would otherwise have gathered by telephoneor e-mail”); Klein Decl. ¶ 9 (stating that, as a result ofFAA, “I will have to travel to gather information that Ipreviously might have gathered by telephone or e-mail”). Two other declarants imply actual travel withoutproviding any particulars. See Hedges Decl. ¶ 9 (report-ing that FAA “has made my work very difficult and of-ten requires me to travel to see those who have informa-tion” and that “[t]he financial cost and time required tospeak with many of my contacts is now immense”);McKay Decl. ¶¶ 8, 10 (stating that, after FAA was en-acted, “[w]henever possible,” declarant and law partner“collect information in person rather than by telephoneor email . . . [which] requires travel that is both time-consuming and expensive”). Finally, one declarant whoresides in Washington, D.C., asserts that, “[m]ost re-cently,” she traveled “to New York City to meet with” aFrench barrister to discuss her representation of aGuantanamo Bay detainee. Royce Decl. ¶ 7. Assumingthat the declarant incurred costs for this trip—a fact notspecifically asserted—those costs cannot constitute FAAinjury because the statute would not have permittedinterception of electronic communications with a Frenchnational who was in New York. See 50 U.S.C.§ 1881a(b)(1) (precluding targeting of any person knownto be in United States).

Thus, while the panel’s identification of self-incurredcosts as the actual present injury in this case is legallyunsupportable for reasons discussed in the previous sec-

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tion of this opinion, it also lacks the requisite foundationin “specific facts,” even without considering the “muchmore” convincing factual showing required of a non-target. Lujan v. Defenders of Wildlife, 504 U.S. at 561-62.16

The panel further concludes that, whether as a mat-ter of causation or actual future injury, plaintiffs demon-strate a reasonable, i.e., not “fanciful,” “irrational,” or“clearly unreasonable,” fear of FAA interception be-cause their fear is “based on a reasonable interpretationof the challenged statute and a realistic understandingof the world.” Amnesty Int’l USA v. Clapper, 638 F.3dat 139. But how reasonable can it be to interpret theFAA—a statute that, on its face, requires all intercep-tions conducted thereunder to be consistent with theFourth Amendment—to authorize, on its face, intercep-tions that invariably will violate that amendment? Andwhat is the basis for plaintiffs’ “realistic view of theworld” of foreign intelligence surveillance, particularlywith respect to the executive’s classified targeting prior-ities and practices? Plaintiffs do not—and indeed can-not—profess personal knowledge of such matters. Thus,their identification of foreign contacts as “likely” targets

16 Judge Lynch does not acknowledge this concern, relegating it to asee also cite respecting a different point made by Chief Judge Jacobs.See Lynch, J., Op., ante at [2]. The concern here identified, however,is not one of panel credulity, declarant veracity, or party collusion—thestraw men with whom Judge Lynch chooses to joust. See id . at [2-4].The question is sufficiency. In short, even if the declarants are pre-sumed truthful, how do their conclusory assertions of incurred costsand speculative predictions as to future costs satisfy the “specific facts”requirement for standing established in Lujan v. Defenders of Wildlife,504 U.S. at 561? No answer to that question can be found either in thepanel’s opinion or Judge Lynch’s concurrence.

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for FAA interception, id. at 126, is completely specula-tive and not admissible evidence, see Fed. R. Evid. 602;Fed. R. Civ. P. 56(c)(4).17

To justify its reliance on these and other similarlyunsubstantiated or conclusory assertions by plaintiffs,the panel observes that the government did not object.See, e.g., Amnesty Int’l USA v. Clapper, 638 F.3d at 127n.10, 129 & n.13, 133. But the panel could not relievethese non-target plaintiffs of their particularly heavyevidentiary burden, nor could it forgo its own duty toconduct a rigorous inquiry into plaintiffs’ standing sim-ply by noting the government’s supposed failure to ob-ject. See Summers v. Earth Island Inst., 129 S. Ct. at1152-53 (rejecting dissent view that an assertion that“no one denies” must be accepted as established in eval-uating standing). The panel was under an “independent

17 Judge Lynch submits that it is hardly speculative to think that thegovernment will seek to surveil plaintiffs’ overseas contacts such as“alleged Al Qaeda members (and Guantanamo detainees) Khalid SheikMohammed and Mohammedou Ould Salahi, as well as those men’sfamilies.” Lynch, J., Op., ante at [13]. What is speculative, however, isthat these persons will be surveilled under the FAA. The electroniccommunications of persons in federal custody are routinely surveilledon a theory of implied consent based on notice. See United States v.Amen, 831 F.2d 373, 378 (2d Cir. 1987). Moreover, alleged al Qaedamembers and their families are such obvious targets for FISA or NSAsurveillance that one can only speculate that the executive wouldinstead use the FAA to monitor their electronic communications. SeeACLU v. NSA, 493 F.3d at 671 (Batchelder, J.) (finding it “reasonable”that FISA Court would authorize interception of communicationsinvolving al Qaeda affiliates targeted under challenged NSA surveil-lance program). To the extent the real issue here is the possibility ofdragnet surveillance, see Lynch, J., Op., ante at [7 n.4], the interceptionof plaintiffs’ contacts—or plaintiffs themselves—pursuant to the FAAis completely speculative for reasons discussed in Parts 5 and 6 of thisopinion.

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obligation” to assess plaintiffs’ standing, even if the gov-ernment did not call it into question at all. ArizonaChristian Sch. Tuition Org. v. Winn, 131 S. Ct. at 1454.

In fact, a glimpse into the actual world of foreignintelligence targeting is afforded by unredacted portionsof the FISA Court of Review’s opinion in In re FISASection 105B Directives, 551 F.3d 1004, and that worldappears quite different from the one hypothesized byplaintiffs. That case presented an as-applied challengeto now-expired amendments to FISA effected throughthe PAA, which allowed the executive “to conduct war-rantless foreign intelligence surveillance on targets (in-cluding United States persons) reasonably believed tobe located outside the United States,” subject to speci-fied criteria, including the adoption of targeting andminimization procedures akin to those now required bythe FAA, but with no prior court review. Id. at 1006-07(internal quotation marks omitted). After holding thatforeign intelligence surveillance is not subject to theFourth Amendment warrant requirement, see id . at1012, the court addressed a Fourth Amendment reason-ableness challenge based on the PAA’s failure to requireparticularity, judicial review of probable cause, or ade-quate proxies for these omitted protections, see id . at1013. Before rejecting the claim, the court reviewed theactual procedures adopted by the executive to satisfyPAA requirements and found that they in fact afforded“protections above and beyond those specified” in thestatute, id . at 1007, and adequately allayed any particu-larity or probable cause concerns, see id . at 1013-14 &n.7 (specifically noting that procedures adopted by exec-utive to comply with PAA incorporated executive orderthat required Attorney General to determine in eachcase, based on information provided pursuant to Depart-

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ment of Defense regulations, that probable cause existedto believe that targeted person is foreign power or agentof foreign power). Such scrupulous oversight rebuts anygeneral assumptions, unsupported by specific facts, thatthe executive will instinctively abuse its targeting dis-cretion under the FAA—a statute that goes further thanthe PAA in subjecting executive targeting and minimi-zation procedures to judicial review and in conditioningcourt orders on a specific finding that the proceduresare “consistent . . . with the fourth amendment.” 50U.S.C. § 1881a(i)(3)(A). Further, it reinforces the needfor this court to clarify en banc that, consistent with Su-preme Court precedent, plaintiffs’ standing depends ontheir showing actual or imminent FAA interception.

5. The Panel Decision Creates a Circuit Split

The most obvious reason why plaintiffs cannot showthat they are subject to actual or imminent FAA inter-ception is because that statute does not direct that anyforeign intelligence surveillance be conducted; it merelyauthorizes the executive to undertake such surveillancepursuant to specified statutory requirements and pro-tections. This is not to suggest that the executive willnot exercise FAA authority. I assume that it will. I fur-ther assume that the FAA authorizes dragnet surveil-lance. Nevertheless, neither plaintiffs nor this court canknow the extent to which the executive will seek or theFISA court authorize the exercise of such surveillanceauthority. That is the point Judge Lynch ignores in hismistaken identification of a “palpable” contradictionbetween the preceding two sentences and any concernwith plaintiffs’ standing. Lynch, J., Op., ante at [13 n.9].In fact, any decisions to seek or grant FAA surveillanceauthority depend, among other things, on national secu-

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rity priorities, available resources, alternative means ofsurveillance, and, of course, Congress’s mandate that allFAA surveillance be conducted in compliance with theFourth Amendment. In these variable circumstances,plaintiffs cannot show that their foreign contacts arecertain to be targeted for FAA surveillance. Much lesscan they show that their own FAA interception is cer-tainly impending. See Lujan v. Defenders of Wildlife,504 U.S. at 564 n.2. Rather, they can only speculate.

Those of our sister circuits to have confronted chal-lenges to other programs authorizing, but not directing,intelligence surveillance have uniformly found thatplaintiffs lacked standing precisely because they couldnot demonstrate actual or imminent interception undersuch schemes. See United Presbyterian Church v. Rea-gan, 738 F.2d at 1380 (Scalia, J.) (stating that even ifplaintiffs may be “at greater risk than the public atlarge” to being targeted for surveillance, such risk falls“far short of the ‘genuine threat’ ” of harm requiredto support standing); accord Al-Haramain IslamicFound., Inc. v. Bush, 507 F.3d at 1205 (holding that de-spite plaintiff ’s formal designation as “global terrorist”organization subject to NSA surveillance, threat of suchsurveillance was too speculative to support standing);18

ACLU v. NSA, 493 F.3d at 667 (Batchelder, J.) (holdingthat plaintiffs who adduced no evidence that NSA “actu-ally intercepted (or will actually intercept) any of their

18 In Al-Haramain, the inadvertent disclosure of a classified docu-ment indicated that the plaintiffs had in fact been intercepted by NSAsurveillance. Nevertheless, because the document was protected by thestate secrets privilege, the court concluded that plaintiffs lacked stand-ing because they failed to point to any admissible evidence that theirfear of interception was more than conjectural. See Al-Haramain Is-lamic Found., Inc. v. Bush, 507 F.3d at 1205.

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conversations” could not rely on “a possibility” of futureinterception to establish standing (emphasis in origi-nal)); id. at 689 n.2 (Gibbons, J., concurring) (distin-guishing between persons demonstrably subject to chal-lenged policy, and persons who merely fear that policymay be enforced against them, in concluding that plain-tiffs lacked standing to challenge warrantless NSA sur-veillance program that might target persons with whomthey regularly communicated).

The panel dismisses these cases as not binding onthis court. See Amnesty Int’l USA v. Clapper, 638 F.3dat 149. True enough, but the fact remains: their reason-ing comports with the Supreme Court’s holdings in Ly-ons, Laird, and Laidlaw, whereas the panel’s does not.19

19 Judge Lynch attempts further to distinguish these cases factually,asserting that United Presbyterian Church presents a broader chal-lenge than this case, see Lynch, J., Op., ante at [14-15] (contrastingchallenge to constitutionality of entire national intelligence gatheringsystem in that case with challenge to specific statute in this case), andACLU v. NSA a narrower one, see id . at [15] (contrasting challenge toNSA warrantless surveillance program targeting persons associatedwith al Qaeda in that case with challenge to statute that permits drag-net surveillance here). He does not explain, however, how thesedifferences make it easier for these plaintiffs to establish standing.

Judge Lynch also submits that the injury at issue in United Presbyte-rian Church was limited to subjective chilling, whereas the plaintiffshere “suffered concrete harms—including the expenditure of funds.” Id. at [14-15]. In fact, the plaintiffs in United Presbyterian Churchalleged past surveillance plus subjective chilling. See United Presbyte-rian Church v. Reagan, 738 F.2d at 1380 (“The third kind of harm ap-pellants allege is that some of them have been or are currently sub-jected to unlawful surveillance.”). Plaintiffs here do not claim any pastFAA surveillance. No matter. The facts alleged in United Presbyte-rian Church cannot satisfy standing under the rules enunciated in Cityof Los Angeles v. Lyons, 461 U.S. at 107 & n.8, and Laird v. Tatum, 408U.S. at 10-11. And for the reasons discussed, see supra Part 3, no dif-

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The court should convene en banc to eliminate the un-necessary circuit split created by the panel decision.

6. Statutory “Gates” to FAA Interception, IncludingJudicial Review, Make Plaintiffs’ Interception Par-ticularly Speculative

Plaintiffs’ standing burden is, in fact, heavier in thiscase than in those confronting our sister circuits. Ineach of those cases, the challenged programs involvedintelligence surveillance conducted under executive au-thority without congressional authorization or judicialreview. By contrast, the powers of all three branches ofthe federal government are united to support FAA sur-

ferent conclusion is warranted by plaintiffs’ purported expenditures toavoid feared FAA interception when Lyons and Laird are properly con-strued consistent with Friends of the Earth, Inc. v. Laidlaw Envi-ronmental Services (TOC), Inc., 528 U.S. at 184.

Judge Lynch states that in ACLU v. NSA, “the government arguedthat it would not be able to address the question of standing withoutdisclosing state secrets,” whereas here, the government did not invokethe state secrets privilege. Lynch, J., Op., ante at [15]. As I readACLU v. NSA, the government invoked the state secrets privilege notfor the reason stated by Judge Lynch, but “to bar the discovery oradmission of evidence” by plaintiffs of evidence that might compromisenational security. ACLU v. NSA, 493 F.3d at 650 (Batchelder, J.). Inshort, the government’s argument was not that it could not addressstanding without the disclosure of this evidence, but that “without theprivileged information, none of the named plaintiffs could establishstanding.” Id. Deciding the case “solely on the publicly available infor-mation that was admitted by the district court and made a part of itsrecord,” id. at 650 n.3, the Sixth Circuit concluded that the plaintiffsfailed to establish standing under the principles established in Lyons,Laird, and Laidlaw. Thus, raising the specter of the state secrets privi-lege in this case is a red herring. The plaintiffs, who never sought anydiscovery that was denied under that privilege, simply do not demon-strate standing under binding Supreme Court precedent.

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veillance. See United States v. Abu-Jihaad, 630 F.3d at121 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343U.S. 579, 635-37 (1952) (Jackson, J., concurring)). Moreto the point for purposes of standing, when Congressauthorized FAA surveillance, it erected a number ofstatutory “gates” through which the executive must passbefore it can intercept any communications. At eachgate, the sphere of possible interceptions can be nar-rowed, whether by limitations on targeting, minimi-zation requirements, judicial review, or a FourthAmendment mandate. Thus, to demonstrate that theyare subject to actual or imminent FAA surveillance,plaintiffs must show not only that it is certain that theexecutive will target their foreign contacts—whichplaintiffs cannot do—but also that interception of theseparticular contacts (and, coincidentally, plaintiffs them-selves) is certain to take place despite required target-ing limits, minimization, judicial review, and the stat-ute’s overarching Fourth Amendment mandate.

The decision in In re FISA Section 105B Directives,551 F.3d at 1013-14 & n.7, demonstrates why plaintiffscannot show that their interception is certain notwith-standing the targeting and minimization proceduresrequired by the FAA. As for judicial review, the panel’sdismissal of that intermediate step notably fails to men-tion the FISA court’s obligation to make an independentFourth Amendment finding before issuing any FAA or-der. Instead, the panel implies that FISA court judgeswill simply rubber stamp FAA surveillance applicationsand, in support, cites empirical evidence showing that,in 2008, FISA court judges approved 2,081 of 2,082 sur-veillance applications. See Amnesty Int’l USA v. Clap-per, 638 F.3d at 140 (acknowledging that evidence doesnot indicate “how many of these applications, if any,

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came after the FAA was enacted on July 10, 2008”). Irespectfully disagree. The statistics merit little consid-eration; they could just as easily reflect the executive’sscrupulous compliance with statutory requirements be-fore submitting applications for judicial review. Seegenerally In re FISA Section 105B Directives, 551 F.3dat 1007 (recognizing that executive was more protectivethan PAA required in conducting warrantless surveil-lance under that statute).

More important, the panel fails to tell the wholestory when it states that the FISA court “must” orderFAA surveillance if the executive’s certification “con-forms to the statutory requirements.” Amnesty Int’lUSA v. Clapper, 638 F.3d at 139. To be sure, theFISA court must find that the executive’s certification“contains all the required elements.” 50 U.S.C.§ 1881a(i)(3)(A). But it must further find for itself thatthe executive’s targeting and minimization proceduresconform to all statutory requirements and are consis-tent “with the fourth amendment.” Id . Far from cab-ining judicial review, this provision was intended to “en-sur[e] FISA Court involvement in any aspect of the newprocedure for targeting foreigners outside the UnitedStates that could involve U.S. persons.” 154 Cong. Rec.S6181 (daily ed. June 26, 2008) (statement of Sen. Rock-efeller, then-Chairman, S. Select Comm. on Intelli-gence); see also 154 Cong. Rec. S6389 (daily ed. July 8,2008) (sectional analysis of FAA presented by Sen.Bond) (explaining that if FISA court determines thattargeting and minimization procedures are inconsistentwith FAA’s requirements or Fourth Amendment, thenit “shall order the Government, at its election, to correct

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any deficiencies or cease, or not begin, the acquisi-tion”).20

There is no reason to think that the Article IIIjudges who serve on the FISA court will be timid in ex-ercising this review authority. Well before the FAA wasenacted, the FISA Court of Review ruled that FISAcourt judges were authorized to scrutinize governmentapplications, including “certifications,” and to seek moreinformation as warranted to ensure compliance withstatutory requirements. In re Sealed Case, 310 F.3d717, 735-36 (FISA Ct. Rev. 2002). Thus, they can beexpected to do the same in conducting the constitutionalreview mandated by the FAA. See generally In re FISASection 105B Directives, 551 F.3d at 1008 (noting that,in reviewing constitutional challenge to PAA, FISAcourt “handed down a meticulous opinion”).21

20 Judge Lynch persists in minimizing the FAA’s Fourth Amendmentmandate by stating that the FISA court determines only if “the govern-ment’s general procedures” satisfy the Fourth Amendment. Lynch, J.,Op., ante at [5-6] (emphasis in original). Those “general procedures,”however, pertain to targeting, i.e., identifying who will be intercepted,and minimization, i.e., deciding what can be intercepted, surely coreFourth Amendment concerns. Further, the statute’s Fourth Amend-ment requirement applies generally to the conduct of FAA surveillance,see 50 U.S.C. § 1881a(b)(5), which makes it more difficult to cabin asJudge Lynch suggests.

21 The FISA court’s decision in In re Proceedings Required by§ 702(i) of the FISA Amendments Act of 2008, No. Misc. 08-01, slip op.(FISA Ct. Aug. 27, 2008), cited by plaintiffs in their brief on appeal, isnot to the contrary. The court there adopted the ACLU’s characteriza-tion of the court’s role in FAA proceedings as “narrowly circum-scribed,” id . at 3 (internal quotation marks omitted), only to explainthat its statutory obligation is to review the executive’s certification,targeting, and minimization procedures, not to conduct “a facial review”of the FAA’s constitutionality, id . at 9-10. The court specifically

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In sum, plaintiffs fail to establish standing becausethey can only speculate that they will ever be inter-cepted by FAA surveillance.

7. Plaintiffs Fail to Demonstrate Redressabilty

Having recast the standing standard to allow plain-tiffs to carry their injury burden by reference to self-incurred costs, and their causation burden by demon-stration of a not-irrational fear of FAA interception, thepanel addressed the final constitutional requirement,redressability, in a footnote. Acknowledging that theelement had received little attention from the districtcourt or the parties, the panel nevertheless found it sat-isfied, explaining that plaintiffs’ injuries, i.e., their costs,stemmed from a reasonable fear of FAA interception“and if a court grants their requested relief—an injunc-tion prohibiting the government from conducting sur-veillance under the FAA—the feared surveillance wouldno longer be permitted and therefore would, presum-ably, no longer be carried out.” Amnesty Int’l USA v.Clapper, 638 F.3d at 140 n.24. The requirement cannotbe dismissed so easily.

To demonstrate redressability, “it must be likely, asopposed to merely speculative, that the injury will beredressed by a favorable decision.” Lujan v. Defendersof Wildlife, 504 U.S. at 561 (internal quotation marksomitted); accord Friends of the Earth, Inc. v. LaidlawEnvtl. Servs. (TOC), Inc., 528 U.S. at 181. Under thepanel’s analysis, the relevant injury is not FAA intercep-tion, but plaintiffs’ professional costs. Thus, to carry

acknowledged, however, that for any FAA application, it “must decidewhether the targeting and minimization procedures are consistent withthe Fourth Amendment.” Id . at 9 (citing 50 U.S.C. § 1881a(i)(3)(A)).

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their burden on redressability, plaintiffs had to adduceevidence that enjoining FAA surveillance would relievethem of the need to incur such costs. Such a conclusioncannot withstand scrutiny.

Plaintiffs’ theory of standing is predicated on theassertion that their foreign contacts are “likely” to betargeted for FAA surveillance because they are “peoplethe U.S. government believes or believed to be associ-ated with terrorist organizations, political and humanrights activists who oppose governments that are sup-ported economically or militarily by the U.S. govern-ment, and people located in geographic areas that are aspecial focus of the U.S. government’s counterterrorismor diplomatic efforts.” Amnesty Int’l USA v. Clapper,638 F.3d at 127 (internal quotation marks omitted). Butif the United States intelligence community is as in-clined to monitor such persons’ communications as plain-tiffs assert, then enjoining the FAA will merely elimi-nate one of several means for achieving that objective.It will not shield plaintiffs or their contacts from theuniverse of alternative electronic surveillance optionsavailable to the government. After FISA’s original en-actment, warrantless radio surveillance of internationalcommunications carried by satellite and wire surveil-lance of international communications performed onforeign soil or offshore continued to be conducted out-side that statutory regime, as long as United States per-sons located in this country were not specifically tar-geted.22

22 The Supreme Court has never ruled that foreign intelligence sur-veillance must be conducted pursuant to court order. See United Statesv. Abu-Jihaad, 630 F.3d at 121 (noting that question remains unre-solved by Supreme Court). Rather, Congress has required, and the

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executive has agreed, that some foreign intelligence surveillance will beso conducted as specified in FISA and various amendments thereto,such as the FAA. See id . (recognizing that when executive conductsforeign intelligence surveillance pursuant to statutory authority andcourt order, the whole of federal authority unites in defining such activ-ity as reasonable search).

While FISA provides the “exclusive means” for conducting “elec-tronic surveillance” as that term is defined in that statute, 18 U.S.C.§ 2511(2)(f ), this does not mean that foreign intelligence surveillancenot authorized by FISA is proscribed, an inference that might mistak-enly be drawn from the panel’s observation that “[t]he FAA was passedspecifically to permit surveillance that was not permitted by FISA butthat was believed necessary to protect the national security,” AmnestyInt’l USA v. Clapper, 638 F.3d at 138. Indeed, Judge Lynch only addsto the confusion when he states that “the FAA indisputably andsignificantly broadens the risk of interception, lowers the government’sprobable-cause burden, and decreases the oversight role” of the FISAcourt. Lynch, J., Op., ante at [4]. The statement rests on an assump-tion that is not the case: that all surveillance now covered by the FAAwas previously covered by FISA.

In fact, FISA’s history shows that Congress specifically chose not tosubject all foreign intelligence surveillance to that law. See, e.g., S. Rep.No. 95-701, at 34 (1978) (explaining that FISA warrant requirement“does not apply to the acquisition of the contents of international or for-eign communications, where the contents are not acquired by intention-ally targeting a particular known U.S. person who is in the UnitedStates”); id. at 71 (stating that FISA “does not deal with internationalsignals intelligence activities as currently engaged in by the [NSA] andelectronic surveillance conducted outside the United States”). Nor didCongress extend FISA to all foreign intelligence surveillance in whicha United States person might coincidentally be intercepted. See, e.g.,Foreign Intelligence Electronic Surveillance: Hearing Before theSubcomm. on Legis. of the H. Permanent Select Comm. on Intelligence,95th Cong., 2d Sess., at 172 (Jan. 10, 1978) (statement of Sen. Kennedy)(stating that “targeted sweeps” aimed at known United States personsin this country would be covered by FISA, but “nontargeted sweeps”by the NSA “would not be covered”).

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Some thirty years later, in hearings leading to the enactment of theFAA, the Directors of National Intelligence and the Central Intelli-gence Agency (“CIA”) explained why technological assumptions inform-ing FISA had become outmoded and created confusion as to whatforeign intelligence surveillance did and did not fall within that law’sparameters. See, e.g., Modernization of the Foreign IntelligenceSurveillance Act: Hearing Before the S. Select Comm. on Intelligence,110th Cong., 1st Sess., at 19 (May 1, 2007) (statement of Adm. J.Michael McConnell, Director of National Intelligence) (“Legislators in1978 could not have been expected to predict an integrated globalcommunications grid that makes geography an increasingly irrelevantfactor. Today, a single communication can transit the world even if thetwo people communicating are only located a few miles apart. And yetsimply because our law has not kept pace with technology, communica-tions intended to be excluded from FISA are in fact included.”); FISAfor the 21st Century: Hearing Before the S. Comm. on the Judiciary,109th Cong., 2d Sess., at 9 ( July 26, 2006) (statement of Gen. MichaelHayden, Director, CIA and former Director, NSA) (observing that“NSA may have multiple opportunities to intercept [a communication]as it moves and as it changes medium” and that “[a]s long as a commu-nication is otherwise lawfully targeted, I believe we should be indiffer-ent to where the intercept is achieved”).

In response to these concerns, the FAA authorizes the executive,upon FISA court order, to secure from electronic communication ser-vice providers assistance to acquire foreign intelligence informationfrom non-United States persons located outside this country. Contraryto the panel’s characterization, the FAA does not authorize conduct thatCongress intended to proscribe in FISA. Rather, it subjects some for-eign intelligence surveillance that previously may have been conductedpursuant to executive order to new statutory limitations, including judi-cial review. At the same time, it clarifies that some foreign intelligencesurveillance that might have been thought to fall within FISA’s originalterms should instead be conducted pursuant to the requirements andprotections outlined in the FAA. See generally United States v. Abu-Jihaad, 630 F.3d at 121-22 (“[T]he Constitution’s warrant requirementis flexible, so that different standards may be compatible with theFourth Amendment in light of the different purposes and practical con-siderations at issue.” (internal quotation marks omitted)). It is in thiscontext that I question whether plaintiffs’ profession that they have

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Thus, even if FAA surveillance were enjoined, thegovernment could still conduct surveillance by othermeans, such as FISA-exempt NSA surveillance pro-grams or, in certain cases, FISA itself. Whether or notthese alternatives would be more difficult or time-consuming is not the point. The critical fact is thatplaintiffs would not know whether such alternative sur-veillance was being conducted with respect to contactswhom plaintiffs assert are of obvious foreign intelligenceinterest. See generally ACLU v. NSA, 493 F.3d at 671(Batchelder, J.) (concluding that enjoining NSA war-rantless surveillance of terrorists and their affiliateswould not redress plaintiffs’ fears of interception be-cause of likelihood that FISA court would authorize suchinterceptions). Moreover, the United States is hardlythe only government conducting electronic surveillance.Even without the FAA, then, plaintiffs would confront areal possibility that their foreign contacts, particularlythose believed to be associated with terrorist organiza-tions or opposed to established governments, would beprime targets for surveillance by other countries, includ-ing their own.23 Thus, neither their fear of interceptionnor their need to incur costs to avoid such interceptionwould be redressed by enjoining FAA surveillance.

Apparently, the government made this point at oralargument on appeal. See Amnesty Int’l USA v. Clapper,638 F.3d at 129 n.13 (observing that “government pro-

greater reason to fear interception after the FAA’s enactment thanbefore can withstand the required rigorous scrutiny.

23 See, e.g., Walsh Decl. ¶ 11 (acknowledging that Cuban contacts“believe that their calls could be monitored by the Cuban government,”which makes them disinclined to speak about Cuban policy, but willingto speak—presumably critically—about U.S. policy).

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fessed itself ‘puzzled’ as to why the plaintiffs had notbeen just as nervous about being monitored before theFAA was enacted as they are now”). The panel, how-ever, concluded that the government could not questionthe genuineness of plaintiffs’ assertions as to the impactof the FAA on their work because it had failed to submitcontrary evidence or to seek a hearing in the districtcourt. See id . I am not convinced. A standing determi-nation is not a debate round, where an unchallengedpoint, however unsubstantiated, is scored for its propo-nent. See generally Lujan v. Defenders of Wildlife,504 U.S. at 581 (Kennedy, J., concurring) (observingthat standing requirements ensure that “legal questions. . . will be resolved, not in the rarified atmosphere ofa debating society, but in a concrete factual context con-ducive to a realistic appreciation of the consequences ofjudicial action” (internal quotation marks omitted)).Rather, as earlier noted, a federal court is under an “in-dependent obligation to consider standing, even whenthe parties do not call it into question.” Arizona Chris-tian Sch. Tuition Org. v. Winn, 131 S. Ct. at 1454; seeSummers v. Earth Island Inst., 129 S. Ct. at 1152. Thatobligation requires an especially rigorous inquiry intoself-serving assertions unsupported by specific facts.Indeed, the obligation applies with particular forcewhere, as here, the injury to be redressed is self-in-flicted, making it appropriate to consider whether, if thefear is genuine, it would persist even if the relief soughtwere granted.

The concerns raised by the panel’s redressabilityanalysis only reinforce the need to review this case enbanc. I emphasize, however, that such review, if con-ducted in accordance with established Supreme Courtprecedent, would never reach the issue of redressability.

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Plaintiffs’ standing claim fails at the injury step of anal-ysis because they have not demonstrated that they aresubject to actual or imminent FAA interception.

* * *

To summarize, this case demands en banc reviewbecause the panel’s recognition of plaintiffs’ standingbased on costs incurred to avoid a not-irrational fear ofFAA interception effectively establishes a novel, re-duced standing standard that

(1) cannot be substituted for the “especially rigor-ous” inquiry required when a party challenges an act ofCongress that cannot target him;

(2) fails to address prudential concerns raised byplaintiffs’ articulation of their Fourth Amendment claim;

(3) cannot be reconciled with Supreme Court prece-dent (a) rejecting subjective fear as a basis for standing,and (b) recognizing standing based on forbearance ac-tion only when, but for his forbearance, a plaintiff wouldcertainly be subject to the challenged conduct;

(4) is not, in any event, supported by “substantialfacts” in this case;

(5) creates a split between this court and three of oursister circuits in analyzing standing to challenge foreignintelligence surveillance programs;

(6) misconstrues the FAA in dismissing various in-tervening steps that preclude plaintiffs from demon-strating that they are subject to actual or imminent in-terception under that statute; and

(7) assumes redressability without rigorous inquiryor substantial facts.

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Insofar as the court today denies rehearing en banc,it is not the six judges who dissent from that decisionwho “close” any courthouse doors. Lynch, J., Op., anteat [17]. Rather, it is our remaining colleagues who de-cline to consider whether a questionable standing stan-dard should become the law of this circuit. There is,however, another courthouse, and those of us here indissent can only hope that its doors will be opened forfurther discussion of this case.

DEBRA ANN LIVINGSTON, Circuit Judge, with whomChief Judge JACOBS, Judge CABRANES, Judge RAGGI,and Judge WESLEY join, dissenting from the denial ofrehearing en banc:

I join fully in Judge Raggi’s scholarly opinion dis-senting from the denial of rehearing en banc. I writeseparately only to address the degree to which thepanel’s opinion, in frank disregard of clear SupremeCourt authority, threatens a sub silentio transformationof this Circuit’s case law regarding so-called “probabil-istic harm”—meaning, the narrow circumstances inwhich this Court has recognized injury in fact to existbased on the risk of some future harm.

The Supreme Court has repeatedly instructed thatinjury in fact must be actual or imminent to afford Arti-cle III standing to a would-be plaintiff. Thus, inWhitmore v. Arkansas, 495 U.S. 149 (1990), the Court,summarizing its case law, stated flatly that threatenedinjuries must be “certainly impending” to constituteinjury in fact: “[W]e have said many times before andreiterate today: Allegations of possible future injury donot satisfy the requirements of Art[icle] III.” Id . at 158.

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Only two Terms ago, the Court affirmed that even thestatistical probability of future harm is not enough:standing, the Court said, “ ‘is not “an ingenious academicexercise in the conceivable” . . . [but] requires . . . afactual showing of perceptible harm.’ ” Summers v.Earth Island Inst., 555 U.S. 488, 129 S. Ct. 1142, 1152(2009) (alteration in original) (omissions in original)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,566 (1992)).

Despite such repeated admonitions, the panel con-cluded that the plaintiffs established standing based ontheir alleged fear of future surveillance because there isan “objectively reasonable likelihood” that plaintiffs’communications will, at some point, be monitored. Am-nesty Int’l USA v. Clapper, 638 F.3d 118, 134 (2d Cir.2011). Even assuming such a likelihood (which, in fact,has not been shown), the panel did not explain its disre-gard of the Supreme Court’s requirement that injurymust be actual or imminently threatened, see, e.g., Sum-mers, 129 S. Ct. at 1148, nor did it justify its attempt atexpansion of the limited circumstances in which this Cir-cuit has found injury in fact to be present based on arisk of future harm.

Judge Lynch, in his opinion concurring in the denialof en banc review, answers this charge with a simple,“Not so.” He then cites to the plaintiffs’ supposed pres-ent injury—the costs they allegedly incurred as a resultof their fear of surveillance—in an effort to substantiatehis point. Lynch, J., Op. Concurring in Denial of Reh’gEn Banc 10 n.6. But the plaintiffs here relied on twoasserted injuries in their bid for standing—not only ontheir present costs, but also on their asserted fear offuture surveillance. The panel opinion addresses both.With regard specifically to the future injury, more-

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over—meaning, the plaintiffs’ claimed fear of surveil-lance pursuant to the FISA Amendments Act of 2008(“FAA”) at some future point—the panel opinion con-cludes, remarkably, as follows:

To determine whether the plaintiffs have standingunder their future-injury theory, we would need todetermine whether the FAA creates an objectivelyreasonable likelihood that the plaintiffs’ communica-tions are being or will be monitored under the FAA.As noted above, we conclude that the future injuriesalleged by the plaintiffs are indeed sufficiently likely[to occur] to confer standing under the test estab-lished in the case law for basing standing on the riskof future harm.

638 F.3d at 134 (emphasis added). With respect, thissimply ignores the Supreme Court’s admonition that“[a]llegations of possible future injury do not satisfy therequirements of Art[icle] III.” Whitmore, 495 U.S. at158. Neither the panel opinion nor Judge Lynch’s con-currence, moreover, offers any refutation of the analysishere, nor even a word of justification for this wholesalebroadening of the narrow circumstances in which thisCircuit has found injury in fact to be present based on arisk of future harm.

Having proffered only a token response to the seri-ous questions that his standing analysis raises, JudgeLynch concludes his concurrence by suggesting thatanyone who disagrees with the panel’s novel approach tostanding seeks without warrant “to close the courthousedoors.” Lynch, J., Op., ante at 18-19. This charge isperhaps ironic, given that six members of this Court—afull half of its active judges—have vigorously sought toopen those doors to a more careful examination of the

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panel’s startling standing conclusions but have beenthwarted in this effort, and despite the universally ac-knowledged “exceptional importance” of the issue pre-sented.

Again with due respect, the Constitution sets limitsnot only on the power of Congress, as Judge Lynch’sconcurrence affirms, but also on that of judges. It isthus not the “glory of our system,” as the concurrencewould have it, see Lynch, J., Op., ante at 18, that electedleaders must answer to unelected judges whenever achallenge is asserted. Article III of the Constitutioninstead limits the judicial power “to redress[ing] orprevent[ing] actual or imminently threatened injury topersons caused by private or official violation of law.”Summers, 129 S. Ct. at 1148. As the Supreme Courtsaid only two Terms ago, “[e]xcept when necessary inthe execution of that function, courts have no charter toreview and revise legislative and executive action.” Id.

In concluding, without explanation, that injury in facthas been established here based on a mere “reasonablelikelihood” that the plaintiffs might one day be sur-veilled, the panel opinion in this matter provokes a rea-sonable fear, but not of an obstinate closure of court-house doors. The fear, instead, is of judges arrogatingto themselves a power inconsistent with both our consti-tutional design and the role of courts in a democraticsociety. See Warth v. Seldin, 422 U.S. 490, 498 (1975).The panel’s wholesale (if unacknowledged) disavowal ofSupreme Court precedent in its assessment of the plain-tiffs’ “future injury” claim thus represents a furtherbasis—in addition to the many identified by JudgeRaggi in her thorough and thoughtful opinion—for enbanc review.

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* * *As Judge Raggi’s dissent points out, the panel’s con-

clusion that the plaintiffs have established standing wasbased in part on an alleged “present injury”—their self-inflicted costs purportedly incurred as a result of aclaimed fear of surveillance under the FAA. AmnestyInt’l, 638 F.3d at 138. I share Judge Raggi’s view thatthe panel failed to demonstrate how an injury of thissort can be termed “fairly traceable” to the FAA underthe existing precedents of the Supreme Court or thisCircuit. I note, however, that the panel opinion does noteven truly address the degree to which the plaintiffs’vaguely alleged self-inflicted costs must be shown to befairly traceable to the FAA in the first place. Rather, itcomes to the startling conclusion that because the futuresurveillance the plaintiffs claim to fear is “sufficientlylikely [to occur] to confer standing under the test estab-lished in the case law for basing standing on the risk offuture harm,” id . at 134, the panel “need not and do[es]not decide whether the degree of likelihood necessary toestablish a causal relationship between an actual presentinjury and the challenged governmental action is asstringent as that necessary for a potential harm in itselfto confer standing,” id .

The conclusion that the alleged risk of future surveil-lance here suffices to constitute injury in fact is trulyunprecedented. The panel arrives at it by asserting thatthe standard for assessing an alleged future harm of thissort asks “whether the FAA creates an objectively rea-sonable likelihood that the plaintiffs’ communicationsare being or will be monitored under the FAA.” Id. Thepanel opinion provides no authority for this novel stan-dard but instead obscures the lack of authority for its“future injury” holding in two ways.

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First, the panel conflates the rare cases in whichstanding has been established based on an increasedrisk of harm with a distinct line of cases—inapplicablehere—in which a plaintiff undisputedly subject to a par-ticular statute is permitted to bring a pre-enforcementfacial challenge even though he cannot establish withcertainty that he will face prosecution should he violatethe statute’s terms. Thus, the opinion asserts as a gen-eral matter that “where a ‘plaintiff ’s interpretation of astatute is “reasonable enough” and under that interpre-tation the plaintiff “may legitimately fear that it willface enforcement of the statute,” then the plaintiff hasstanding to challenge the statute.’ ” Id . at 138 (quotingPac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341,350 (2d Cir. 2008) (quoting Vt. Right to Life Comm., Inc.v. Sorrell, 221 F.3d 376, 383 (2d Cir. 2000))). The citedcases, however, do not reflect a general endorsement ofthe proposition that a plaintiff has standing to challengeany statute from which he “legitimately fear[s]” harmbased on a “reasonable enough” interpretation, norcould they, consistent with the Supreme Court’s caselaw regarding standing based on future harm. Rather,these cases reflect a particular standard applicable tothe specific context of pre-enforcement facial challenges,under which “[a] plaintiff . . . need not demonstrate toa certainty that it will be prosecuted under the statuteto show injury, but only that it has ‘an actual and well-founded fear that the law will be enforced against’ it.”Vt. Right to Life Comm., 221 F.3d at 382 (quoting Vir-ginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393(1988)). Because the FAA is not a regulatory statutethat could be enforced against any plaintiff in this pro-ceeding, these pre-enforcement facial challenge casesare of no relevance here.

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The panel next purports to rely on the SupremeCourt’s decision in City of Los Angeles v. Lyons, 461U.S. 95 (1983), a case it terms “the seminal case onstanding based on probabilistic or prospective harm.”Amnesty Int’l, 638 F.3d at 136. Of course, Lyons is thesame case that the Supreme Court described two Termsago as “an opinion that did not find standing, so theseeming expansiveness of [its] test made not a bit of dif-ference.” Summers, 129 S. Ct. at 1153.1 Moreover, theSummers Court, in rejecting the claim that Lyons setout a new and less stringent general standard for theuse of prospective harm to establish Article III stand-ing, went on expressly to decline to replace the familiarrequirement that a future harm be “imminent” to consti-tute injury for the purposes of standing with one thatwould grant standing based on a mere “realistic threat”that challenged activity will recur “in the reasonablynear future.” Id . at 1152-53 (italics omitted) (internalquotation marks omitted). Plainly, Lyons presents noauthority for the notion that the majority’s novel “objec-tively reasonable likelihood” test should be substitutedfor the Supreme Court’s clear statement that “[a]threatened injury must be ‘certainly impending’ to con-stitute injury in fact.” Whitmore, 495 U.S. at 158 (quot-ing Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979))(internal quotation marks omitted).

1 Curtis v. City of New Haven, 726 F.2d 65 (2d Cir. 1984), describedby the panel as “articulat[ing] the principle of Lyons as requiring aninquiry into the probability of future harm,” Amnesty Int’l, 638 F.3d at136, is similarly a case in which this Court denied standing, see Curtis,726 F.2d at 68-69, and thus any attempt by the panel to make use of theexpansiveness of the standing principle Curtis supposedly articulatedis subject to the same critique.

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As this Court has expressly acknowledged in thepast, the case law recognizing that, under certain cir-cumstances, “threatened harm in the form of an in-creased risk of future injury may serve as an injury-in-fact for Article III standing purposes” has developedlargely in the courts of appeals, Baur v. Veneman, 352F.3d 625, 633 (2d Cir. 2003), and, in particular, in thespecific context of environmental and health-relatedlitigation, see Natural Res. Def. Council v. EPA, 464F.3d 1, 6 (D.C. Cir. 2006) (“[W]e have recognized thatincreases in risk can at times be ‘injuries in fact’ suffi-cient to confer standing. Environmental and health in-juries often are purely probabilistic.” (emphasis added)(citation omitted)); see also Ctr. for Law and Educ. v.Dep’t of Educ., 396 F.3d 1152, 1161 (D.C. Cir. 2005)(“Outside of increased exposure to environmentalharms, hypothesized ‘increased risk’ has never beendeemed sufficient ‘injury.’ “); Friends of the Earth, Inc.v. Gaston Copper Recycling Corp., 204 F.3d 149, 160(4th Cir. 2000) (en banc) (“Threatened environmentalinjury is by nature probabilistic.”). To the limited ex-tent the Supreme Court has itself suggested that in-creased risk may be relevant for standing purposes,moreover, it too has done so in the specific context ofsuits alleging environmental harm. See Massachusettsv. EPA, 549 U.S. 497, 520-23 (2007) (recognizing as in-jury a state’s actual loss of coastal land and the risk offuture loss over the course of the next century); Friendsof the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,528 U.S. 167, 183-85 (2000) (concluding that environmen-tal plaintiffs subject to pollution establish injury in factwhen the pollution lessens their aesthetic and recre-ational enjoyment of a certain place they visit, even ifuncertainty exists as to the environmental harm being

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caused). These cases announce no general departurefrom the “actual or imminent” standard. Indeed, theSupreme Court’s recent decision in Massachusetts v.EPA, which found injury in fact arising in part from therisk of future loss of coastal land, did so only in a contextin which it also carefully noted that at least two specialcircumstances—not present here—justified relaxationof the traditional standing rules that would otherwiseapply.2

“Probabilistic” injury has thus never been recognizedby the Supreme Court or this Circuit as sufficient asa general matter to constitute injury in fact for the pur-poses of Article III standing, and for good rea-son—as the D.C. Circuit has noted, “were all purelyspeculative ‘increased risks’ deemed injurious, the entirerequirement of ‘actual or imminent injury’ would be ren-dered moot, because all hypothesized, non-imminent ‘inju-ries’ could be dressed up as ‘increased risk of futureinjury.’ ” Ctr. for Law and Educ., 396 F.3d at 1161.

2 Thus, the Court noted that Congress had accorded the litigants inMassachusetts v. EPA a procedural right to protect their concrete in-terests, such that these litigants could “assert that right without meet-ing all the normal standards for redressability and immediacy.” 549U.S. at 517-18 (quoting Lujan, 504 U.S. at 572 n.7) (internal quotationmarks omitted). In addition, the Court also relied on the fact that theparty seeking review was a sovereign State rather than a private in-dividual—a factor the Court determined entitled the Commonwealth to“special solicitude” in its standing analysis. Id . at 520. The absence ofboth circumstances here limits the applicability of Massachusetts v.EPA to this case. See Richard H. Fallon, Jr., John F. Manning, DanielJ. Meltzer & David L. Shapiro, Hart and Wechsler’s The FederalCourts and the Federal System 145-46 (6th ed. 2009) (noting thediversity of grounds relied on by the Supreme Court in Massachusettsv. EPA and querying whether this aspect of the decision may limit itsimport in future standing cases).

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Such an approach would threaten grossly to distend theJudicial Branch’s proper role of deciding actual cases orcontroversies, rendering almost any governmental ac-tion or inaction at least potentially subject to judicialreview so long as a court was willing to deem it “reason-ably likely” that a plaintiff might one day be affected asa result.

This Circuit’s principal “probabilistic injury” case(prior to the dramatic expansion of the category that thepanel opinion threatens to effect) was Baur, a case inwhich the majority expressly noted that it “need notdecide as a matter of law whether enhanced risk gener-ally qualifies as sufficient injury to confer standing” anddid not “purport to imply that we would adopt such abroad view.” Baur, 352 F.3d at 634. Rather, it held onlythat “[i]n the specific context of food and drug safetysuits, . . . such injuries are cognizable for standingpurposes, where the plaintiff alleges exposure to poten-tially harmful products,” id ., and those products pose a“credible threat of harm,” id . at 637 (internal quotationmarks omitted). Acknowledging that “this type of injuryhas been most commonly recognized in environmentalcases,” the Baur panel critically relied on two case-spe-cific factors, neither of which is present here, to arriveat this holding. Id . at 634. First, “[l]ike threatened en-vironmental harm, the potential harm from exposure todangerous food products or drugs ‘is by nature probabil-istic,’ yet an unreasonable exposure to risk may itselfcause cognizable injury.” Id . (quoting Gaston Copper,204 F.3d at 160). Second, “the very purpose of [the stat-utes alleged to have been violated] is to ensure thesafety of the nation’s food supply and to minimize therisk to public health from potentially dangerous foodand drug products,” further bolstering the case for rec-

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ognizing increased risk as a sufficiently concrete andimminent injury in fact in that specific context. Id .

The panel identified no such factors in this case, nordid it engage in any similar analysis in extending theapplicability of these probabilistic harm cases, decidedin highly specific factual circumstances, to a setting inwhich the plaintiffs assert, at most, a risk of being inci-dentally intercepted by foreign surveillance conductedby the United States. Instead, the panel opinion statesbaldly that a threatened injury may be “sufficientlyprobable to support standing,” with the ultimate inquiry“qualitative, not quantitative.” Amnesty Int’l, 638 F.3dat 137 (quoting Baur, 352 F.3d at 637) (internal quota-tion marks omitted). While recognizing that the stand-ing inquiry is “highly case-specific,” id . (quoting Baur,352 F.3d at 637) (internal quotation marks omitted), thepanel rests its conclusion that the future harm assertedhere is “sufficiently probable” solely on the fact that theFAA is “susceptible to . . . an interpretation” wherebyit authorizes broad surveillance, id . at 138, and that theplaintiffs are “reasonable” in their assessment that theycommunicate with people who are likely targets of sur-veillance under the Act, id . at 139. However, even ifthese assertions were sufficient to establish an enhancedrisk of surveillance (and I share Judge Raggi’s view thatthey are far too speculative to do so), the panel providesno justification for the more basic question of why suchincreased risk should be treated as injury in the firstplace.

Indeed, a careful and context-sensitive analysis ofprevious probabilistic harm cases would suggest thattheir logic should not be extended to challenges to sur-veillance that is not actual or certainly impending, but

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instead only feared. As Judge Raggi’s dissent high-lights, all the previous cases cited by the panel in whichstanding has been granted based on the risk of a futureprobabilistic injury have involved plaintiffs who hadestablished that they were subject to the conduct theywere challenging, with the only uncertainty beingwhether harm would ultimately result from the conductin question. See Raggi, J., Op. at 17-23; see also Laid-law, 528 U.S. at 184 (“[I]t is undisputed that Laidlaw’sunlawful conduct—discharging pollutants in excess ofpermit limits—was occurring at the time the complaintwas filed. . . . [T]he only ‘subjective’ issue here is ‘[t]hereasonableness of [the] fear’ that led the affiants to re-spond to that concededly ongoing conduct . . . .” (finaltwo alterations in original)). None involved uncertaintyas to whether the plaintiffs were in fact subject to thechallenged conduct in the first place, as is the case here.Indeed, where the Supreme Court has confronted uncer-tainty of the latter type, it has denied standing even inthe context of environmental harms. See Summers, 129S. Ct. at 1152 (rejecting organizational standing eventhough it was “possible—perhaps even likely” that amember of the plaintiff organization used an area of theNational Forest System affected by a challenged activ-ity but no member established that they did in fact usean affected area).

In addition, unlike the environmental or health-re-lated suits, the purported injury at issue here is not“inherently probabilistic” in the sense that it may simplybe impossible, based on the limits of scientific capacityor human understanding, to know whether, for example,certain allegedly polluting activity to which would-beplaintiffs are clearly subject will in the future inflictharmful effects on them. Here, the plaintiffs’ communi-

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cations either are or are not being intercepted. Theplaintiffs sought no discovery as to standing, despite thefact that it was their burden to show actual or immi-nently threatened harm. To the extent plaintiffs cannotestablish the fact of surveillance either way, this is aproduct of: (1) the judgment of our coordinate branches(based no doubt on their own “realistic understanding ofthe world,” Amnesty Int’l, 638 F.3d at 139) that foreignintelligence surveillance must be conducted in secrecy inorder for it to be effective in safeguarding the nationalsecurity; and (2) plaintiffs’ own election not to seek dis-covery as to standing, and thereafter to overcome (ifable) any objections to such discovery, including the ap-plication of the state secrets privilege, should it havebeen asserted. See United States v. Aref, 533 F.3d 72,78-79 (2d Cir. 2008) (“Th[e] venerable [state secrets]evidentiary privilege ‘allows the government to withholdinformation from discovery when disclosure would beinimical to national security.’ ” (quoting Zuckerbraun v.Gen. Dynamics Corp., 935 F.2d 544, 546 (2d Cir. 1991))).It is difficult for me to fathom how any of these circum-stances justifies a relaxed standing burden for the plain-tiffs here, and certainly, the panel opinion fails to offerany such justification by ignoring the context-sensitivenature of the “probabilistic harm” standing cases alto-gether.

* * *

The standing requirement is designed to “maintain[]the public’s confidence in an unelected but restrainedFederal Judiciary,” Ariz. Christian Sch. Tuition Org. v.Winn, 131 S. Ct. 1436, 1442 (2011), limiting the judiciary“to the traditional role of Anglo-American courts, whichis to redress or prevent actual or imminently threatened

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injury to persons caused by private or official violationof law,” Summers, 129 S. Ct. at 1148. Applied faithfully,it prevents the installation of “the federal courts as vir-tually continuing monitors of the wisdom and sound-ness” of both legislative and executive action. Laird v.Tatum, 408 U.S. 1, 15 (1972). In determining when in-jury in fact has been established, “[a]lthough ‘immi-nence’ is concededly a somewhat elastic concept, it can-not be stretched beyond its purpose, which is to ensurethat the alleged injury is not too speculative for ArticleIII purposes—that the injury is ‘certainly impending.’ ”Lujan, 504 U.S. at 564 n.2 (emphasis added by Lujan)(quoting Whitmore, 495 U.S. at 158) (internal quotationmarks omitted). The breaking point has been reachedin this case.

In light of the fact that these plaintiffs cannot dem-onstrate even a non-speculative increased risk of sur-veillance (among many other bases for denying standinghere) the panel need not have decided whether an “ob-jectively reasonable” threat of future surveillance wassufficient for Article III standing. Its conclusion never-theless that such a risk does qualify as injury in fact,however, represents a truly dramatic and unjustifiedexpansion of this Court’s probabilistic harm cases to theinapposite context of government surveillance. By al-lowing a sweeping facial constitutional challenge to astatute that merely sets out the manner in which theexecutive branch can conduct certain types of foreignsurveillance, based purely on a purported increasedthreat of surveillance and self-inflicted costs arising outof this asserted fear, the panel ignores the animatingconcerns of the standing requirement and threatenswithout justification to transform our existing doctrineregarding claims of future harm. It is a step without

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support in the case law of the Supreme Court or thisCircuit, one contrary to the approaches taken in surveil-lance cases by our sister circuits, and one not in keepingwith the limited role of the judiciary in our constitu-tional structure. I respectfully dissent from the denialof en banc review.

DENNIS JACOBS, Chief Judge, dissenting from the denialof rehearing in banc:

I concur in Judge Raggi’s and Judge Livingston’sscholarly dissents. I would also subscribe to JudgeKoeltl’s opinion dismissing this case for lack of standing.I write separately to make a few points of my own.

The panel opinion repeatedly emphasizes that itsimpact is on the threshold standing issue only and thatit has no bearing on the merits. See Amnesty Int’l USAv. Clapper, 638 F.3d 118, 121, 131, 143 n.26, 145 (2d Cir.2011). I take the opinion on those terms. The panelopinion does indeed avoid the merits. The panel’s analy-sis of injury simply credits as sufficient certain aver-ments by the plaintiffs that seem to me inadequate, im-plausible, and illusory. And the panel’s analysis of re-dressability, which ordinarily requires a preliminarymerits review (to determine if the court could amelioratesome palpable harm to the plaintiffs), is consigned to anuninformative footnote. It is therefore quite so that thepanel opinion decides nothing about the merits—andthereby leaves the way clear for dismissal after remandat a stage just beyond the threshold of standing.

That said, I think that it is a defect in the panel opin-ion that it elides even the glancing review of the meritsthat is needed to determine if the challenged statute

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impairs the Fourth Amendment rights of these plain-tiffs, or if they suffer an injury that a court can alleviate.That review, which I undertake here, refutes harm andredressability, and should therefore have defeatedstanding: These plaintiffs and their lawyers are claim-ing a policy-making role on matters that have no FourthAmendment impact on them.

* * *

An assortment of lawyers, journalists and activists,and organizations representing such people, faciallychallenge the constitutionality of § 702 of the ForeignIntelligence Surveillance Act of 1978 (“FISA”), 50U.S.C. § 1881a, which was added to FISA by § 101(a)(2)of the FISA Amendments Act of 2008 (the “FAA”).

Their claim is that the FAA lowers the standards forobtaining warrants to surveil foreign persons abroad,which has caused the plaintiffs, who are not foreigners,to develop a reasonable fear of being surveilled whencommunicating with foreigners around the world whoare their journalistic sources, clients, human rights vic-tims, witnesses and so on—all of whom are, in plaintiffs’estimation, potential objects of surveillance. The plain-tiffs contend that this fear compels them to communicatewith their clients or foreign contacts only in person, atsuch trouble and expense as to constitute injury thatsupports standing.

Three things are ordinarily required for constitu-tional standing: (1) injury in fact, (2) causality, and(3) redressability. If a plaintiff is not personally subjectto the government action, the panel opinion identifies afourth requirement: a “showing that [the plaintiff] hasaltered or ceased conduct as a reasonable response to

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the challenged statute.” Clapper, 638 F.3d at 141 (citingFriends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528U.S. 167, 184-85 (2000)). The plaintiffs show none ofthese.

* * *

To support the otherwise-mysterious idea of injuryto these plaintiffs (and causation), the panel opinion re-lies entirely (even credulously) on affidavits submittedby the plaintiffs, describing their supposed anxieties.But these affidavits employ all the lawyer’s arts to con-vey a devious impression.

The panel opinion bases its finding of injury and cau-sation entirely on the ethical duties of lawyers and theaffidavits of the lawyer plaintiffs.1 So evidence about thenon-lawyer plaintiffs (to the extent there is any thatspecifies an injury) is irrelevant here. (For some rea-son, the panel’s mandate nevertheless confers standingindiscriminately on all the plaintiffs, including the jour-nalists and various other activists.)

Among the plaintiffs who submitted affidavits, onlytwo are lawyers who represent clients. Scott McKay, alawyer for Guantanamo Bay detainees, does not specify

1 The lawyers among the plaintiffs invoke an affidavit of Prof. Steph-en Gillers, which contains a sound review of the ethical duties of law-yers:

If an attorney has reason to believe that sensitive and confidential in-formation related to the representation of a client and transmitted bytelephone, fax, or e-mail is reasonably likely to be intercepted by ot-hers, he or she may not use that means of communication in exchang-ing or collecting the information. He or she must find a safer modeof communication, if one is available, which may require communica-tion in person.

Declaration of Prof. Stephen Gillers ¶ 10.

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a single trip he took or a single dollar he spent as a re-sult of the FAA. Instead, he just avers generally that he“minimize[s] the amount of sensitive information that[he] communicate[s] by telephone or email” and that“[w]henever possible, [he] also collect[s] information inperson rather than by telephone or email.” Declarationof Scott McKay ¶ 8. Of course, that is what every goodlawyer does—on every matter. Sylvia Royce, anotherlawyer representing a detainee, specifies only a singleexpense she attributes to the FAA: a trip to Manhattan(not Guantanamo). She avers:

Where information is both especially important andespecially sensitive, I have to travel to share infor-mation, views and ideas that I would otherwise havebeen able to exchange by telephone or e-mail. Mostrecently, I went to New York City to meet with [aFrench attorney] and another lawyer to talk about[my client’s] case, but I also expect to travel abroadin the future to meet with co-counsel and I expect toexchange information in our meetings in person thatI would not exchange by telephone or email.

Declaration of Sylvia Royce ¶ 7. Yet (as Judge Raggipoints out) the FAA had nothing to do with her trip toNew York to talk with co-counsel because a call betweenpoints inside the United States could not have beentapped under the FAA.

Even if one accepts the truth of these perfunctoryaffidavits (with their studied vagueness and anticipa-tions of the conveniently unknown future), the declara-tions contained in them do not establish that either law-yer was injured or incurred expense that had any causalrelation to the FAA. Yet, these affidavits provide the

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only evidence to support the panel’s ruling as to harmand causation.

* * *

The remaining standing issue, redressability, is con-signed to a footnote in the panel opinion, a footnote thatdoes not explain how a favorable decision in this casewill redress plaintiffs’ supposed injuries. Clapper, 638F.3d at 140 n.24. Even if the record disclosed specificinstances in which lawyers were injured by the FAA,plaintiffs would still lack standing for the reason identi-fied by Judge Alice Batchelder in ACLU v. NSA, 493F.3d 644 (6th Cir. 2007), an opinion that is not answeredhead-on by the panel opinion. Any lawyer whose ethicalscruples would now prevent electronic contact with hisforeign clients out of fear of surveillance would have hadto incur the same bother and expense before the FAA,since the FISA Court has already approved thousandsof warrants. Id . at 670-72. Thus, the plaintiffs (and thepanel opinion) prove too little.

By the same token, the plaintiffs (and the panel opin-ion) prove too much. The ethical obligation discussed byProf. Gillers (see supra note 1) has nothing to do withwhether the FAA is constitutional: what is “[d]eterm-inative of how the lawyer may proceed is,” as Prof.Gillers explains, “whether the lawyer has good reason tobelieve that his or her communications are reasonablylikely to be intercepted, even if the interception is law-ful.” See Clapper, 638 F.3d at 128 (quoting Gillers Decl.¶ 11) (emphasis added). Thus, any burden imposed onplaintiffs by the risk of surveillance arose under the pre-FAA regime as well. And since (obviously) wiretap sur-veillance is authorized by statutes other than the FAA,it is by no means limited to foreigners abroad. So the

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inhibition that allegedly besets the plaintiffs would (ifvalid) affect all criminal defense lawyers—not to men-tion psychiatrists and the clergy—all the time.

The panel’s redressability argument (following plain-tiffs’ affidavits) is also premised on the fanciful ideathat, for a foreign person of interest abroad in his owncountry, the only risk of surveillance is surveillance bythe United States—as though otherwise persons of in-terest in Iran, Syria, Bosnia, Sudan and Cuba (not tomention Russia or Spain) can chatter away confidentthat the security services of those countries (and others)are not listening—as though those places have a FourthAmendment to be begin with, and adhere to it morescrupulously than does the United States. The plain-tiffs’ affidavits thus betray their buried assumption thatthe United States is the only threat to liberty that any-one anywhere needs to worry about.

* * *

Finally, the FAA does not even bear upon the plain-tiffs’ Fourth Amendment rights because the FAA con-cerns only the surveillance of persons abroad who arenot United States citizens or residents. The FAA imple-ments this limitation through minimization (proceduresfor limiting the information received and retained byelectronic surveillance) and targeting (procedures forlimiting the persons and facilities to be surveilled), andthe FISA Court is given power to review those proce-dures for compliance with the Fourth Amendment.2

2 Under the FAA, a surveillance order shall issue:

If the Court finds that a certification submitted in accordance withsubsection (g) contains all the required elements and that the target-ing and minimization procedures adopted in accordance with subsec-

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Since the FAA bars the targeting of individuals in or ofthe United States, there can be nothing for the FISACourt to consider under the Fourth Amendment butthose procedures.

And as to persons abroad, with whom the plaintiffsclaim to be in communication: “the Fourth Amendmenthas no application” to the search of a person of foreignnationality, outside the United States, with “no volun-tary attachment” to this country. United States v.Verdugo-Urquidez, 494 U.S. 259, 274, 275 (1990); seealso In re Terrorist Bombings of U.S. Embassies in E.Africa, 552 F.3d 157, 171 (2d Cir. 2008) (holding “thatthe Fourth Amendment’s Warrant Clause has no extra-territorial application” to searches of United States citi-zens abroad).

In short, the FAA does not implicate any FourthAmendment right of any plaintiff, or of any foreign per-son with whom any plaintiff may communicate.

* * *

Since these plaintiffs are not subject to the FAA, andsince the Fourth Amendment has no application to theirsupposed clients, sources and communicants—who areforeign persons abroad—and since the only evidencethey proffer of personal inconvenience and expense areaffidavits that are craftily worded to skirt actual false-hood, what is the interest in bringing this suit?

tions (d) [targeting] and (e) [minimization] are consistent with therequirements of those subsections and with the fourth amendmentto the Constitution of the United States.

50 U.S.C. § 1881a(i)(3)(A) (emphasis added).

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At the risk of being obvious, the purpose of this law-suit is litigation for its own sake—for these lawyers toclaim a role in policy-making for which they were notappointed or elected, for which they are not fitted byexperience, and for which they are not accountable. Asbest I can see, the only purpose of this litigation is forcounsel and plaintiffs to act out their fantasy of persecu-tion, to validate their pretensions to policy expertise, tomake themselves consequential rather than marginal,and to raise funds for self-sustaining litigation. In short,counsel’s and plaintiffs’ only perceptible interest is tocarve out for themselves an influence over governmentpolicy—an interest that the law of standing forecloses.

For the foregoing reasons, I conclude that the plain-tiffs suffered no injury, and certainly none that can beredressed by this Court. In part, that is a function ofthe frivolous nature of the claim. In that respect, itbears similarity to a pro se plaintiff ’s allegation that theCIA is controlling him through a radio embedded in hismolar. But, as to the standing analysis, there is thisdifference: The pro se plaintiff is actually suffering, istruly hoping for redress, and is not bringing suit as apretext to weigh in on government policy.

PETER W. HALL, Circuit Judge, dissenting from the de-nial of rehearing in banc:

I respectfully dissent from the denial of rehearing inbanc solely because I believe this case “involves a ques-tion of exceptional importance” warranting in banc re-view. Fed. R. App. P. 35(a)(2).

Documents

· No. In the Supreme Court of the United States JAMES R. CLAPPER, JR., DIRECTOR OF NATIONAL INTELLIGENCE, ET AL., PETITIONERS v. AMNESTY INTERNATIONAL USA ET AL. ON PETITION FOR