The Second Circuit recently denied the government’s petition for a rehearing en banc, thereby allowing the constitutional challenge to a 2008 amendment to the Foreign Intelligence Surveillance Act (“FISA”) to proceed on the merits. The FISA, passed in 1978, dictates the procedures by which the government may target and monitor electronic communications of non-United States citizens located outside the United States. In 2008, Congress amended the FISA by passing the FISA Amendment Act (“FAA”), thereby broadening the scope of the targets of electronic surveillance in a manner that the American Civil Liberties Union (“ACLU”) and others argue is constitutionally impermissible. As the Second Circuit noted in its March, 2011 decision in Amnesty Int’l USA v. Clapper, one of the key distinctions between the original FISA and the amended Act is that the amendment does away with the requirement of individual targeting, thus enabling the Foreign Intelligence Surveillance Court (“FISC”) – the court established by the FISA to grant authorization to conduct surveillance under the FISA – to approve broad requests that do not specify the target or facility to be monitored. Second, and perhaps more importantly, under the FAA, to grant authorization, the FISC is no longer required to make a finding of probable cause that the target is a foreign agent or that the facility to be monitored is being used or is about to be used by a foreign agent, as was required under the original FISA.

On appeal from the U.S. District Court of the Southern District of New York, the Second Circuit reversed the district court’s dismissal of the suit on standing. The court found that the plaintiffs had alleged sufficient present injury to establish standing by incurring costs from the reasonable fear that their electronic communications with their clients, for whom they have an ethical duty to maintain confidentiality, would be the subject of surveillance. The court denied the government’s petition for a rehearing en banc, but as the New York Times noted in a recent article, the even split in the judges’ votes demonstrates the clear division on the court, not merely on the procedural aspects of the law suit, but also on the merits of the case, which center around the constitutionality of the FISA Amendment Act’s broad sweep. Indeed, the dissenting judges’ characterizations of the court’s refusal to rehear the case en banc as an “unprecedented” lowering of the standard for standing, and their likening of the plaintiffs to “every mobster’s girlfriend who pays for a cab to meet with him in person rather than converse by telephone,” are indicative of the highly divisive nature of the suit.

If the case is heard by the Supreme Court, it is unclear how the Court would rule, as the Court rejected the ACLU’s appeal of the 6th Circuit’s dismissal of a similar suit, ACLU v. NSA, on the basis of standing in 2008. Here, however, a denial of certiorari would result in the case being remanded to the District Court to be decided on the merits. As of yet, no case challenging the FAA has reached the Supreme Court. Thus, the Supreme Court granting certiorari in this instance could represent another obstacle for the ACLU in challenging the constitutionality of the amendment, as a decision reversing the 2nd Circuit decision could potentially bar the way for many (perhaps all) others to challenge the statute. A majority of the Court demonstrated little concern for such considerations in its 2011 decision in Arizona Christian School Tuition Organization v. Winn, in which the Court dismissed an Establishment Clause suit on the issue of standing over the dissent’s objection that “[t]he Court’s opinion . . . offers a roadmap—more truly, just a one-step instruction—to any government that wishes to insulate its financing of religious activity from legal challenge. . . . No taxpayer will have standing to object.   However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts.”

If, however, the case is allowed to proceed on the merits, the suit would represent an important step in defining the limits of government surveillance programs, as the constitutionality of such programs is a matter of public concern that has yet to be determined by the courts. Indeed, this decision has been handed down in the wake of growing uneasiness and uncertainty surrounding the FISA and the interpretations of its provisions. As reported in a New York Times article, on September 21, 2011, in a letter to Attorney General Holder, Senators Ron Wyden and Mark Udall warned that the members of the Department of Justice had made repeated “misleading statements” about the Department’s interpretation of surveillance law, noting that the public’s understanding of the law was necessarily obfuscated by the fact that the legal interpretation of §215 of the Patriot Act, which amended the FISA, is not publicly available because such cases are decided by the FISC, whose decisions are made classified as a matter of national security. The letter therefore questions the Department’s assertion that its interpretation of §215 of the Patriot Act is not secret law, when many of the decisions issued by the FISC are in fact classified.

Given the secrecy that surrounds the FISA, its implementation and its interpretation, a Supreme Court decision dismissing the case on standing could present an almost insurmountable obstacle to would-be plaintiffs to establish standing. Such a decision could therefore undermine not only private citizens’ privacy rights, but also the doctrine of separation of powers by effectively shielding the statute from judicial review.  For the time being, however, ACLU Deputy Legal Director Jameel Jaffer’s outlook on the Second Circuit’s decision remains optimistic: “The government’s surveillance practices should not be immune from judicial review, and this decision ensures that they won’t be.”