The renewed interest in litigation regarding the government surveillance programs comes on the heels of a recent Supreme Court ruling in Clapper v. Amnesty International . The litigants included a group of attorneys with clients with connections to terrorist-related cases, several journalists who have overseas sources in countries where terrorism may be ongoing, and human rights researchers who claimed to be seeking to talk to people subjected to torture in secret prisons overseas. The Court noted that the litigants' theory for how they would be injured in the future by Section 702 was based on a series of assumptions that all had to occur in order for them to have an injury that could be traced to the federal law and redressed by a favorable court ruling. Amongst the plaintiffs' assumptions, the Court noted that the Clapper litigants were assuming that (1) the government is thinking of imminently targeting the communication of the plaintiffs' foreign contacts; (2) the government would use Section 702, as opposed to other sources of authority, to engage in the surveillance; (3) the FISC would authorize such surveillance; (4) the government would actually succeed in eavesdropping on one of their contacts; and (5) the eavesdropping would actually capture the contents of the conversations of one of the litigants, injuring them. Future of Litigation Challenging the Foreign Surveillance Practices

Four months after the Supreme Court's ruling in Clapper came the avalanche of news stories alleging that the U.S. intelligence community was engaged in broad intelligence gathering measures, including the capturing of a broad universe of records from particular companies. On one hand, the ability of a plaintiff to muster enough evidence to establish standing has been arguably boosted by recent revelations about government surveillance efforts. As such, the arguments of the new litigants on how they have been injured are more specific and theoretically less speculative than the arguments made by the plaintiffs in Clapper . Nonetheless, while recent revelations in the press may have helped boost an argument for establishing standing, demonstrating Article III standing remains a difficult task, especially in light of Clapper . For example, the plaintiffs in these newly filed cases still have "no actual knowledge of the Government's ... targeting practices," and are assuming not only that the government has been successful in acquiring the data in question but also that the government is actually using or it is "certainly impending" that the government will use targeting techniques that cause the specific injury alleged, an erosion of the confidentiality of certain communications. As a consequence, the recent news accounts and disclosures by the government may not be enough to allow a federal court to reach the merits of the legality of certain government surveillance efforts.
Recent news accounts (and government responses to those news accounts) have indicated that the government is reportedly engaged in a surveillance program that gathers vast amounts of data, including records regarding the phone calls, emails, and Internet usage of millions of individuals. The disclosures to the media reportedly suggest that specific telecommunication companies have been required to disclose certain data to the government as part of the intelligence community's surveillance efforts.
The recent controversy over the reports of government targeting efforts comes months after the Supreme Court ruled in a case called Clapper v. Amnesty International. In Clapper, the Court dismissed a facial constitutional challenge to Section 702 of the Foreign Intelligence Surveillance Act on constitutional standing grounds. Specifically, the Clapper court found that the litigants, a group of attorneys and human rights activists who argued that their communications with clients could be the target of foreign intelligence surveillance, could not demonstrate they would suffer a future injury that was "certainly impending," the requirement the majority of the Court found to be necessary to establish constitutional standing when asking a court to prevent a future injury.
Notwithstanding the Clapper decision, in light of the recent revelations about the government's intelligence gathering methods, several lawsuits have been filed by individuals who are customers of the companies allegedly subject to court orders requiring the disclosure of data to the government. The litigants in these newly filed lawsuits would appear to have a stronger argument for how they have been injured than the plaintiffs in Clapper did. Notably, unlike the Clapper plaintiffs, the litigants in these new lawsuits have evidence that the government is actually using its authority to gather data that is pertinent to the plaintiffs. However, the plaintiffs in these lawsuits may still have significant difficulties in establishing standing, as they have arguably not alleged that they have been specifically targeted by the government or injured in any concrete and particularized way by the government's conduct. Moreover, gathering evidence to prove an injury will be difficult because of evidentiary privileges protecting the government information. As a consequence, litigation challenging the government surveillance programs that are the topic of recent media accounts may have the same difficulties found in the Clapper litigation.