Amnesty Intern. Usa v. McConnell

• Decision Date: 20 August 2009
• Docket Number: No. 08 Civ. 6259(JGK).,08 Civ. 6259(JGK).
• Citation: 646 F.Supp.2d 633
• Parties: AMNESTY INTERNATIONAL USA, et al., Plaintiffs, v. John McCONNELL, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

646 F.Supp.2d 633

AMNESTY INTERNATIONAL USA, et al., Plaintiffs, v. John McCONNELL, et al., Defendants.

No. 08 Civ. 6259(JGK).

United States District Court, S.D. New York.

August 20, 2009.

Arthur Nelson Eisenberg, Christopher T. Dunn, New York Civil Liberties Union, New York, NY, Jameel Jaffer, Lori Danielle Tully, Melissa Goodman, Laurence Michael Schwartztol, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.

Serrin Andrew Turner, Laura Klein Abel, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge.

This is a facial challenge to the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. § 1881a, which was added to FISA by Section 101(a)(2) of the FISA Amendments Act of 2008 (the "FAA"). In relevant part, the FAA amended FISA by creating a new framework within which federal officials may seek approval from the Foreign Intelligence Surveillance Court (the "FISC") to authorize surveillance targeting non-United States persons located outside the United States to acquire foreign intelligence information.

The plaintiffs are attorneys and organizations in the United States whose work necessitates international communications with people and organizations they believe to be likely targets of surveillance under the FAA. The defendants are the Director of National Intelligence, the Director of the National Security Agency and Chief of the Central Security Service, and the Attorney General of the United States.¹

The plaintiffs fear that their international communications will be monitored under the FAA. They make no claim that their communications have yet been monitored, and they make no allegation or showing that the surveillance of their communications has been authorized or that the Government has sought approval for such surveillance. However, the plaintiffs assert that they have an "actual and well-founded fear" of surveillance under the FAA and claim already to have incurred significant costs in taking steps to protect their international communications from surveillance. The plaintiffs challenge the FAA as unconstitutional under the Fourth Amendment, the First Amendment, and Article III of the Constitution.

The Government contends as a threshold matter that the plaintiffs lack standing to challenge the FAA. The Government also contends that the lawsuit lacks merit in any event because the FAA is constitutional on its face.

The parties have filed cross-motions for summary judgment. For the reasons explained below, the plaintiffs have failed to show that they have standing to bring their facial challenge to the statute.

I

A

Prior to the passage of the FAA, FISA created a framework for federal officials to apply for and obtain orders authorizing electronic surveillance where a significant purpose of the surveillance was to obtain foreign intelligence information. See 50 U.S.C. § 1804; see also United States v. Duggan, 743 F.2d 59, 77 (2d Cir.1984).² FISA established the FISC, comprised of judges appointed by the Chief Justice of the United States, with jurisdiction to hear applications for and to grant orders approving electronic surveillance "in aid of protecting the United States against attack by foreign governments or 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 order approving electronic surveillance be made by a federal officer upon oath or affirmation after approval by the Attorney General. 50 U.S.C. § 1804(a). An application was required to set forth the identity of the federal officer making the application; the identity, if known, of the target of the electronic surveillance; the facts upon which the applicant relied in concluding that the target of the electronic surveillance was a foreign power or an agent of a foreign power and that each of the facilities or places at which the surveillance was directed was being used, or was about to be used, by a foreign power or agent thereof; a statement of proposed minimization procedures; the type of information sought and the means by which surveillance would be effected; a statement concerning the previous applications sought; and a statement of the period of time for which the surveillance was required to be maintained. 50 U.S.C. § 1804(a)(1)-(9).

The application had to be approved by the Attorney General upon the Attorney General's finding that it satisfied the criteria and requirements of such an application. 50 U.S.C. § 1804(a). The application had to include a certification from a high ranking executive officer employed in the area of national security or defense that the information sought was foreign intelligence information as defined by 50 U.S.C. § 1801(e). 50 U.S.C. § 1804(a)(6). Foreign intelligence information included information relating to the ability of the United States to protect against international terrorism, and "information with respect to a foreign power or foreign territory that relates to . . . the conduct of the foreign affairs of the United States," among other things. 50 U.S.C. § 1801(e). FISA required that the certification include a statement that the information sought could not reasonably be obtained by normal investigative techniques and designating the type of foreign intelligence information sought in accordance with § 1801(e). 50 U.S.C. § 1804(a)(6). Finally, after the passage of the Patriot Act, the executive officer was required to certify that "a significant purpose of the surveillance is to obtain foreign intelligence information." 50 U.S.C. § 1804(a)(6).

Prior to approving the requested electronic surveillance, a FISC judge had to find that: (1) the application was made by a federal officer and approved by the Attorney General; (2) there was probable cause on the basis of the application to believe that the target of the electronic surveillance was a foreign power or agent of a foreign power, and that each of the facilities or places at which the electronic surveillance was directed was being used, or was about to be used, by a foreign power or an agent of a foreign power; (3) the proposed minimization procedures met the definition of minimization procedures set forth in § 1801(h); and (4) the application contained all statements and certifications required under § 1804. 50 U.S.C. § 1805(a).

Pursuant to FISA, a FISC judge who was satisfied that an application met the statutory requirements was required to enter an ex parte order approving the requested electronic surveillance. 50 U.S.C. § 1805(a). Such an order was required to specify the identity of the target of the surveillance; the location of each of the facilities or places at which the surveillance would be directed; the type of information sought and communications or activities to be subjected to the surveillance; the means by which the surveillance would be effected; and the period of time for which the surveillance was approved; and to direct that the minimization procedures be followed. 50 U.S.C. § 1805(c).

The FISA framework governed applications for orders authorizing electronic surveillance to obtain foreign intelligence information, including surveillance of communications between persons located within the United States ("domestic communications") and surveillance of communications between persons located within the United States and persons located outside the United States ("international communications"). FISA defined "electronic surveillance" to include:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of Title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

50 U.S.C. § 1801(f). The FISA requirements thus applied to the surveillance of international wire communications (including telephone and email communications) provided that the surveillance occurred in the United States. 50 U.S.C. § 1801(f)(2). The FISA requirements did not apply to the surveillance of international radio communications, or to surveillance of international wire communications that did not take place in the United States,³ unless such surveillance targeted a known United States person located in the United States. See 50 U.S.C. §§ 1801(f)(1-2).⁴

B

The FAA was signed into law on July 10, 2008. The FAA leaves much of the preexisting FISA framework intact. However, new Section 702 of FISA, added by Section 101(a)(2) of the FAA and codified at 50 U.S.C. § 1881a,...