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View Diary: ACLU sues White House over 'dragnet' data collection (113 comments)

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  •  Clapper v. Amnesty International, 568 U.S. (2013) (3+ / 0-)

    From the Majority Opinion:

    Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” E.g., Whitmore v. Arkansas, 495 U. S. 149, 158 (1990). And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of §1881a-authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing... Even if respondents could show that the Government will seek the Foreign Intelligence Surveillance Court’s authorization to acquire the communications of respondents’ foreign contacts under §1881a, respondents can only speculate as to whether that court will authorize such surveillance. In the past, we have been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment. In Whitmore, for example, the plaintiff ’s theory of standing hinged largely on the probability that he would obtain federal habeas relief and be convicted upon retrial.  In holding that the plaintiff lacked standing, we explained that “[i]t is just not possible for a litigant to prove in advance that the judicial system will lead to any particular result in his case.” 495 U. S., at 159–160; see Defenders of Wildlife, 504 U. S., at 562

    We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors.

    •  After Snowden's leak, this opinion is now outdated (6+ / 0-)

      This argument

      Even if respondents could show that the Government will seek the Foreign Intelligence Surveillance Court’s authorization to acquire the communications of respondents’ foreign contacts under §1881a, respondents can only speculate as to whether that court will authorize such surveillance.
       no longer holds water.

      Snowden's leak was an actual order from a FISA judge ordering Verizon to provide the government with all this data.  Thanks to that leak, everybody knows that a FISA court DID in fact authorize the surveillance.

      •  Exactly. *And* the court has egg on its face (0+ / 0-)

        because what it classifed as "speculation" has been proven beyond the shadow of a doubt.  I realize that that doesn't have a legal effect, but it may tick off the court members who just got embarassed by the NSA.

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