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In the Supreme Court of the United States

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In the Supreme Court of the United States Powered By Docstoc
					                  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 A WRIT OF CERTIORARI
     TO THE UNITED STATES COURT OF APPEALS
             FOR THE SECOND CIRCUIT



              APPENDIX TO THE
     PETITION FOR A WRIT OF CERTIORARI
                (VOLUME 1)


                             DONALD B. VERRILLI, JR.
                              Solicitor General
                                Counsel of Record
                             TONY WEST
                              Assistant Attorney General
                             EDWIN S. KNEEDLER
                              Deputy Solicitor General
                             ANTHONY A. YANG
                              Assistant to the Solicitor
                                General
                             DOUGLAS N. LETTER
                             DANIEL J. LENERZ
                              Attorneys
                              Department of Justice
                              Washington, D.C. 20530-0001
                              SupremeCtBriefs@usdoj.gov
                              (202) 514-2217
                       TABLE OF CONTENTS
                                                                            Page
                                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 Callers
                   Without Courts, New York
                   Times (Dec. 16, 2005) . . . . . . . . . . . 247a
       Exhibit B – The President’s Radio Address,
                   41 Weekly Comp. Pres. Docs
                   1880 (Dec. 17, 2005) . . . . . . . . . . . . . 262a
       Exhibit C – Excerpts from The President’s
                   News Conference, 41 Weekly
                   Comp. Pres. Docs 1885 (Dec. 19,
                   2005) . . . . . . . . . . . . . . . . . . . . . . . . . 266a
       Exhibit D – Press Briefing by Attorney
                   General Alberto Gonzales and
                   General Michael Hayden,
                   Principal Deputy Director for
                   National Intelligence (Dec. 19,
                   2005) . . . . . . . . . . . . . . . . . . . . . . . . . 272a


                                     (I)
                                     II

Table of Contents—Continued:                                              Page
         Exhibit E – Excerpts from Remarks by
                     General Michael V. Hayden at
                     the National Press Club (Jan.
                     23, 2006) (full text available at
                     http://www.dni.gov/speeches/
                     printer_friendly/20060123_
                     speech_print.htm) . . . . . . . . . . . . . . 294a
         Exhibit F – Letter from Attorney General
                     Alberto R. Gonzales to Senator
                     Patrick Leahy and Senator
                     Arlen Specter (dated Jan. 17,
                     2007) . . . . . . . . . . . . . . . . . . . . . . . . . 312a
         Exhibit G – Chris Roberts, Transcript:
                     Debate on the Foreign Intel-
                     ligence Surveillance Act, El
                     Paso Times (Aug. 22, 2007) . . . . . . 315a
         Exhibit H – Mike McConnell, A Law
                     Terrorism Outran: We Need a
                     FISA For the 21st Century,
                     Washington Post (May 21, 2007) . . 331a
  Appendix F – Declaration of Naomi Klein (filed
               Sept. 12, 2008) . . . . . . . . . . . . . . . . . . . . . 334a
  Appendix G – Declaration of Joanne Mariner
               (filed Sept. 12, 2008) . . . . . . . . . . . . . . . 340a
  Appendix H – Declaration of Sylvia Royce (filed
               Sept. 12, 2008) . . . . . . . . . . . . . . . . . . . . . 348a
  Appendix I – Declaration of John Walsh (filed
               Sept. 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 (filed
               Dec. 15, 2008) . . . . . . . . . . . . . . . . . . . . . 368a
  Appendix L – Declaration of Professor Stephen
               Gillers (filed Dec. 15, 2008) (Exhibit
               A omitted) . . . . . . . . . . . . . . . . . . . . . . . . 376a
  Appendix M – Declaration of Steven M. Bellovin
               (filed Dec. 15, 2008) . . . . . . . . . . . . . . . . 389a
  Appendix N – Statement of Undisputed Facts in
               Support of Respondents’ Motion for
               Summary Judgment (filed Sept. 12,
                      2008) . . . . . . . . . . . . . . . . . . . . . . . . . 396a
  Appendix O – Petitioners’ Response to Respond-
               ents’ Statement of Undisputed
               Facts (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 APPEALS
             FOR THE SECOND CIRCUIT


                         No. 09-4112-cv
  AMNESTY INTERNATIONAL USA, GLOBAL FUND
   FOR WOMEN, G LOBAL R IGHTS , H UMAN R IGHTS
   WATCH, INTERNATIONAL CRIMINAL DEFENCE
 ATTORNEYS ASSOCIATION, THE NATION MAGAZINE,
  PEN AMERICAN CENTER, SERVICE EMPLOYEES
 INTERNATIONAL UNION, WASHINGTON OFFICE ON
LATIN AMERICA, DANIEL N. ARSHACK, DAVID NEVIN,
         SCOTT MCKAY, SYLVIA ROYCE,
            PLAINTIFFS- APPELLANTS
                      v.
  JAMES R. CLAPPER, JR., IN HIS OFFICIAL CAPACITY
     AS D IRECTOR OF N ATIONAL I NTELLIGENCE ,*
   KEITH B. ALEXANDER, IN HIS OFFICIAL CAPACITY
  AS D IRECTOR OF THE N ATIONAL S ECURITY A GENCY
   AND CHIEF OF THE CENTRAL S ECURITY S ERVICE ,
   ERIC H. HOLDER, JR., IN HIS OFFICIAL CAPACITY
   AS A TTORNEY G ENERAL OF THE U NITED S TATES ,
              DEFENDANTS - APPELLEES


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


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

                                (1a)
                                   2a

Before: CALABRESI, SACK, and LYNCH, Circuit Judges.
GERARD E. LYNCH, Circuit Judge:
    Attorneys, journalists, and labor, legal, media, and
human rights organizations brought this action facially
challenging the constitutionality of Section 702 of the
Foreign Intelligence Surveillance Act of 1978 (“FISA”),
which was added to FISA by Section 101(a)(2) of the
FISA 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 the
United 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 executive
branch sweeping and virtually unregulated authority to
monitor 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 the
plaintiffs are legally in a position to assert these claims
in a federal court, not whether the claims are to any de-
gree valid. Their merit is an issue for another court on
another day. The district court (Koeltl, J.) granted the
government summary judgment because it found that
the plaintiffs lacked standing. On appeal, the plaintiffs
argue that they have standing because the FAA’s new
procedures1 cause them to fear that their communica-

  1
     Throughout this opinion, references to the FAA’s new procedures
challenged by the plaintiffs refer to the procedures set forth in Section
702.
                                  3a

tions will be monitored, and thus force them to under-
take costly and burdensome measures to protect the
confidentiality of international communications neces-
sary to carrying out their jobs. Because standing may
be based on a reasonable fear of future injury and costs
incurred to avoid that injury, and the plaintiffs have es-
tablished that they have a reasonable fear of injury and
have incurred costs to avoid it, we agree that they have
standing. 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 foreign
intelligence purposes, including surveillance of commu-
nications between persons located within the Uni-
ted States and surveillance of communications between
persons 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 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 intention-
 ally 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
                                  4a

§§ 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 for
the authorization of foreign intelligence electronic sur-
veillance targeting non-United States persons located
outside the United States.3 See id. § 1881a; see also 154
Cong. Rec. S227, 228 (daily ed. Jan. 24, 2008) (statement
of Sen. Rockefeller) (“[W]e wanted to ensure that activi-
ties authorized by this bill are only directed at persons
outside the United States. . . . For individuals inside
the United States, the existing procedures under FISA
continue to apply.”). The plaintiffs complain that the
new procedures unlawfully permit broader collection of
intelligence with less judicial oversight.

  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 ).
   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 citizens
of the United States or aliens lawfully admitted for permanent
residence, or a corporation which is incorporated in the United States,
but does not include a corporation or an association which is a foreign
power. . . .’ ” 50 U.S.C. § 1801(i).
                            5a

       A. Surveillance Authorization Procedures Prior
          to the FAA
    FISA established procedures requiring federal offi-
cials to obtain authorization to conduct electronic sur-
veillance for foreign intelligence purposes. It created
the Foreign Intelligence Surveillance Court (“FISC”),
to which the government had to apply for authorization
to conduct foreign intelligence surveillance. See 50
U.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, the
individual to be monitored by the surveillance (“the tar-
get”); the bases for believing both that the target was a
foreign power or an agent of a foreign power, and that
a foreign power or an agent of a foreign power was using
or was about to use each of the facilities at which the
surveillance was directed; proposed minimization proce-
dures; the nature of the information sought and the type
of communications or activities to be surveilled; a certifi-
cation that a significant purpose of the surveillance was
to obtain foreign intelligence information, and that
the information could not reasonably be obtained by
normal investigative techniques; the means by which the
surveillance 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).
                                  6a

   Before approving an application, a FISC judge4 had
to find that: the application met the above criteria;
there was probable cause to believe both that the target
was a foreign power or an agent of a foreign power and
that each of the facilities or places at which the elec-
tronic surveillance was directed was being used, or was
about 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 eleven
district 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 relevant
part, as:
  (1) specific procedures, which shall be adopted by the Attorney
  General, that are reasonably designed in light of the purpose and
  technique of the particular surveillance, to minimize the acquisition
  and retention, and prohibit the dissemination, of nonpublicly available
  information 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 that
  identifies 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 for
  the retention and dissemination of information that is evidence of a
  crime which has been, is being, or is about to be committed and that
  is to be retained or disseminated for law enforcement purposes[.]
Section 1801(h) also includes a fourth requirement for minimization
procedures that applies to authorization of surveillance directed sole-
ly at communications between or among foreign powers. 50 U.S.C.
                                7a

    A FISC judge who approved an application was re-
quired to enter an individualized ex parte order that
specified (among other things): the identity, if known,
or a description of the target; the nature and location of
the places to be monitored; the type of information
sought to be acquired; the means of surveillance, and the
time 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 surveillance
period, the FISC could monitor compliance with these
minimization procedures “by reviewing the circum-
stances under which information concerning United
States persons was acquired, retained, or disseminated.”
Id. § 1805(d)(3).
    B. Surveillance Authorization Procedures After the
       FAA

   The FAA leaves much of the FISA framework intact,
but the new Section 702 creates new procedures for the
authorization of foreign intelligence surveillance target-
ing non-United States persons located outside the
United States.
    The FAA, in contrast to the preexisting FISA
scheme, does not require the government to submit an
individualized application to the FISC identifying the
particular targets or facilities to be monitored. Instead,
the Attorney General (“AG”) and Director of National
Intelligence (“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 the
type of foreign intelligence surveillance plaintiffs challenge.
                            8a

“a significant purpose of the acquisition is to obtain for-
eign intelligence information” and that that information
will 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 submitted
with the certification. Id. § 1881a(g)(2)(A)(i), (ii). “Tar-
geting procedures” are procedures designed to ensure
that an authorized acquisition is “limited to targeting
persons reasonably believed to be located outside the
United States,” and is designed to “prevent the inten-
tional acquisition of any communication as to which the
sender and all intended recipients are known at the time
of 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 must
meet 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 further
attest that the surveillance procedures, which must be
included with the certification, comply with the Fourth
Amendment. Id. § 1881a(g)(2).
    In addition, the certification must attest that the sur-
veillance complies with statutory limitations providing
that it:
   (1) may not intentionally target any person known at
   the time of acquisition to be located in the United
   States;
   (2) may not intentionally target a person reasonably
   believed to be located outside the United States if
   the purpose of such acquisition is to target a particu-
                               9a

     lar, known person reasonably believed to be in the
     United States;
     (3) may not intentionally target a United States per-
     son reasonably believed to be located outside the
     United States;
     (4) may not intentionally acquire any communication
     as to which the sender and all intended recipients are
     known at the time of the acquisition to be located in
     the United States; and
     (5) shall be conducted in a manner consistent with
     the fourth amendment to the Constitution of the
     United 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, and
if it finds that the certification includes all of the re-
quired elements, it must issue an order authorizing the
government to conduct the requested surveillance. Id.
§ 1881a(i)(2), 1881a(i)(3)(A). At that point, the AG and
DNI “may authorize jointly, for a period of up to 1 year
. . . , the targeting of persons reasonably believed to be
located outside the United States to acquire foreign in-
telligence information.” Id. § 1881a(a).6
    If the FISC rejects an application, the government
may 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 wiretapping
before applying for FISC authorization, so long as the government
applies to the FISC for authorization within seven days. 50 U.S.C.
§ 1881a(c)(2), 1881a(g)(1)(B).
                          10a

ment may continue to conduct the requested surveil-
lance. Id. § 1881a(i)(4)(B).
    Under the FAA, in contrast to the preexisting FISA
scheme, the FISC may not monitor compliance with the
targeting and minimization procedures on an ongoing
basis. Instead, that duty falls to the AG and DNI, who
must submit their assessments to the FISC, as well as
the congressional intelligence committees and the Sen-
ate and House Judiciary Committees. Id. § 1881a(l)(1).
In its summary judgment submissions, the government
asserted that “[s]hould such reporting reveal particular
minimization procedures to be ineffective in any respect,
the FISC has the authority to disapprove such proce-
dures in future § 1881a proceedings.” Defs.’ Mem. in
Opp’n to Pls.’ Mot. for Summ. J. at 52-53, Amnesty Int’l
USA 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 the
FISC may rely on these assessments to revoke earlier
surveillance authorizations.
    The head of each element of the intelligence commu-
nity acquiring communications by means of authorized
surveillance also must review the ongoing surveillance
procedures 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 from
the acquisition.” 50 U.S.C. § 1881a(l)(3)(A). These re-
views of authorized acquisitions must indicate how many
United States persons were overheard or were referred
to in intercepted communications that were collected
under surveillance designed to target non-United States
                                   11a

persons.7 The relevant intelligence heads who con-
duct such annual reviews must use them “to evaluate
the adequacy of the minimization procedures,” id.
§ 1881a(l)(3)(B), and they must provide these annual
reviews to the FISC, the AG, the DNI, the congressional
intelligence committees, and the Senate and House Judi-
ciary Committees, id. § 1881a(l)(3)(C).
      C. Comparison of Pre- and Post-FAA Surveillance
         Authorization Procedures
    The plaintiffs highlight two differences between the
pre- and post-FAA surveillance authorization proce-
dures. First, whereas under the preexisting FISA
scheme the government had to submit an individualized
application for surveillance identifying the particular
target, facility, type of information sought, and proce-
dures to be used, under the FAA, the government need
not submit a similarly individualized application—it
need not identify the particular target or facility to be
monitored. Compare 50 U.S.C. § 1805(c)(1), with id.
§ 1881a(d)(1), 1881a(g)(4). Second, whereas under the
preexisting FISA scheme the FISC had to find probable
cause to believe both that the surveillance target is a
“foreign power” or agent thereof and that the facilities
to be monitored were being used or about to be used by
a foreign power or its agent, under the FAA the FISC
no 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 United
States and, to the extent possible, whether communications of such
targets were reviewed.” 50 U.S.C. § 1881a(l)(3)(A).
                                   12a

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 procedures
mean that surveillance orders can be significantly
broader under the FAA than they previously could have
been. Prior to the FAA, surveillance orders could only
authorize the government to monitor specific individuals
or facilities. Under the FAA, by contrast, the plaintiffs
allege that an acquisition order could seek, for example,
“[a]ll telephone and e-mail communications to and from
countries of foreign policy interest—for example, Rus-
sia, Venezuela, or Israel—including communications
made to and from U.S. citizens and residents.” More-
over, the specific showing of probable cause previously
required, and the requirement of judicial review of that
showing, have been eliminated. The government has not
directly challenged this characterization.8
    An additional distinction concerns who monitors com-
pliance with statutory limitations on the surveillance
procedures. The preexisting FISA scheme allowed on-
going judicial review by the FISC. Id. § 1805(d)(3). But
under the FAA, the judiciary may not monitor compli-
ance on an ongoing basis; the FISC may review the
minimization procedures only prospectively, when the
government seeks its initial surveillance authorization.
Rather, the executive—namely the AG and DNI—bears
the 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 what
is wrong with the plaintiffs’ interpretation, or what a more appropriate
interpretation would be. At oral argument, we asked the government
to clarify what it found inaccurate in the plaintiffs’ characterization, and
again it failed to do so.
                               13a

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 believe
the government will likely monitor under the FAA.9 The
plaintiffs sued the DNI, the AG, and the Director of the
National Security Agency (“NSA”) in their official ca-
pacities (collectively, “the government”).
      B. Complaint
    On July 10, 2008, the same day Congress enacted the
FAA, the plaintiffs filed their complaint alleging that the
FAA “allows the executive branch sweeping and virtu-
ally unregulated authority to monitor the international
communications . . . of law-abiding U.S. citizens and
residents.” The plaintiffs alleged that they feared that
under the FAA the government would intercept their
sensitive international communications that were neces-
sary to carrying out their jobs, and that they therefore
had to take costly and burdensome measures to protect
the confidentiality of those communications. They
sought declaratory and injunctive relief, alleging that
the FAA facially violates the Fourth Amendment, the
First Amendment, Article III of the Constitution, and
the principle of separation of powers.

  9
    The nature of and need for these communications with such indi-
viduals is fleshed out below.
                                14a

       C. Summary Judgment Filings
    In September and October 2008, the parties cross-
moved for summary judgment. The plaintiffs sought a
declaration that the FAA is unconstitutional. The gov-
ernment, in addition to defending the FAA’s constitu-
tionality on the merits, argued that the plaintiffs lacked
standing 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 show
that they had been so surveilled. The plaintiffs ad-
vanced what they characterized as two independent
bases for standing to challenge the FAA’s constitutional-
ity: first, that they have an actual and well-founded fear
that their communications will be monitored in the fu-
ture; and, second, that in light of that fear they have
taken costly and burdensome measures to protect the
confidentiality of certain communications.
    In support of their standing arguments, the plaintiffs
filed declarations and a Statement of Undisputed Facts
pursuant to Local Rule 56.1 (“56.1 Statement”). The
plaintiffs’ 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 human
rights abuses located outside the United States.” 10 The
individuals with whom the plaintiffs communicate in-
clude “people the U.S. Government believes or believed
to be associated with terrorist organizations,” “political
and human rights activists who oppose governments
  10
    As more fully discussed below, the government does not dispute the
accuracy of plaintiffs’ factual assertions.
                                 15a

that are supported economically or militarily by the U.S.
government,” and “people located in geographic areas
that are a special focus of the U.S. government’s
counterterrorism 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 resident
who has faced criminal charges in connection with the September 11
terrorist attacks and is now a defendant in several related civil cases.
McKay also helps represent Khalid Sheik Mohammed, who is being
held at Guantanamo Bay for alleged acts of terrorism, and in the course
of 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 as
a 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 rights
abuses by governments and non-state actors throughout the world,
regularly speaks with human rights researchers, translators, former
detainees, and political activists in locations including Jordan, Egypt,
Pakistan, Afghanistan, and the Gaza Strip, often in an effort to locate
individuals who the CIA has alleged are associated with terrorist
organizations, or individuals whom the CIA has detained and allegedly
tortured. John Walsh, who conducts research and advocacy on U.S.
policy toward the Andes region for the Washington Office on Latin
America (“WOLA”), testifies that WOLA relies on, inter alia, Cuban
sources who are outspoken critics of the U.S. embargo.
  Journalist Naomi Klein reports on a wide variety of international
topics, 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 Colombian
groups who oppose U.S. trade policies. Likewise, journalist Chris Hed-
ges, whose writing focuses on American and Middle Eastern politics
and society, maintains regular contact with academics, journalists,
                                  16a

    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 believe
that, because of the nature of their communications with
these individuals, the communications will likely be “ac-
quired, retained, analyzed, and disseminated” under the
FAA.
    Their fear of future surveillance, according to the
plaintiffs, 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 by
e-mail,” which, in turn, “compromises [their] ability to
locate witnesses, cultivate sources, gather information,
communicate confidential information to their clients,
and to engage in other legitimate and constitutionally
protected 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 obligated
to take these measures in order to comply with their
“ethical obligation to avoid communicating confidential
information about client matters over telephone, fax, or
e-mail if they have reason to believe that it is likely to be
intercepted by others.” In support of this assertion, the
plaintiffs 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 and
civil society leaders in Palestine, whom he believes are “of interest” to
the U.S. government.
                                  17a

Gillers, an expert in legal ethics, stating that it is “the
duty of a lawyer to safeguard confidential information.”
    Gillers attested that “[d]eterminative of how the law-
yer may proceed is . . . whether the lawyer has good
reason to believe that his or her communications are
reasonably likely to be intercepted, even if the intercep-
tion is lawful.” He then opined that the FAA gives the
attorneys sufficient reason to believe their communica-
tions will be intercepted:
       My opinion is that the lawyers have good reason for
       this belief [that their communications with clients
       and third parties in connection with client matters
       will be intercepted] because of the status of their
       clients, the identity and location of witnesses and
       sources, and the broad authority that the FAA
       grants the government. The lawyers’ decision to
       avoid electronic means of communication is not dis-
       cretionary. It is obligatory.12
    The government did not submit any evidence of its
own either in opposition to the plaintiffs’ submissions, or
in support of its own summary judgment motion. Addi-
tionally, at oral argument on the summary judgment
motions, the government said it accepted the factual
  12
     It is undisputed and indisputable that attorneys have an ethical
duty to avoid disclosure of confidential information relating to the
representation of clients. However, to the extent that Professor Gillers
declares that the FAA creates a sufficient risk of interception to trigger
that ethical duty, that assertion relies on his analysis of how the FAA
operates, which we are not compelled to accept. It is for us to deter-
mine whether it is reasonable for the attorneys (and other plaintiffs, for
that 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.
                                   18a

submissions of the plaintiffs as true for purposes of
those motions. Amnesty Int’l, 646 F. Supp. at 641. We
therefore 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 lacked
standing to challenge the FAA, and therefore granted
summary judgment for defendants without reaching the
merits of the plaintiffs’ claims. After identifying the
three constitutional requirements for standing—an in-
jury in fact, a causal connection between the injury and
the challenged statute, and redressability—the court
stated that “[t]his case turns on whether the plaintiffs
have 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 about
being monitored before the FAA was enacted as they are now. To the
extent that that statement questioned whether the plaintiffs genuinely
fear being monitored after the FAA’s enactment more than they did
before it, the government cannot raise that challenge on appeal. The
plaintiffs’ 56.1 Statement said that “[t]he threat of surveillance under
the new law has a much greater impact on [their] work than previous
U.S. government surveillance.” The time to challenge the accuracy of
the plaintiffs’ assertions in their declarations has passed. The govern-
ment could have filed its own evidence, or sought an evidentiary hearing
on the accuracy of the plaintiffs’ claims, but it did neither. See Gubitosi
v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (deeming admitted all
material facts contained in an unopposed Rule 56.1 statement); see also
S.D.N.Y. Local R. 56.1(c) (“Each numbered paragraph in the statement
of material facts set forth in the statement required to be served by the
moving party will be deemed to be admitted for purposes of the motion
unless specifically controverted by a correspondingly numbered
paragraph in the statement required to be served by the opposing
party.”).
                           19a

44. The court denied standing because it found that nei-
ther of the plaintiffs’ asserted injuries—their actual and
well-founded fear of being monitored, and the resulting
professional and economic costs they have incurred
to 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 future
surveillance too speculative to confer standing. It
stated:
   The plaintiffs have failed to establish standing to
   challenge the constitutionality of the FAA on the ba-
   sis of their fear of surveillance. The plaintiffs can
   only demonstrate an abstract fear that their commu-
   nications will be monitored under the FAA. The
   FAA creates a framework within which intervening
   federal officials may apply for approval from the
   FISC to authorize surveillance targeting non-United
   States persons located outside the United States to
   acquire foreign intelligence information. The FAA
   sets forth the requirements that an application to
   obtain a surveillance order from the FISC must sat-
   isfy. Contrary to the characterization of the statute
   in the plaintiffs’ motion papers, the FAA itself does
   not authorize the surveillance of the plaintiffs’ com-
   munications. Indeed, the FAA neither authorizes
   surveillance nor identifies on its face a class of per-
   sons that includes the plaintiffs. Rather the FAA
   authorizes specified federal officials to seek a sur-
   veillance order from the FISC. That order cannot
   target the plaintiffs and whether an order will be
   sought that affects the plaintiffs’ rights, and whether
                           20a

   such an order would be granted by the FISC, is com-
   pletely speculative.
Id. at 645.
   To arrive at this conclusion, the district court relied
on three lines of cases. First, the court looked to cases
where 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 (6th
Cir. 2007). Both of these cases rejected the plaintiffs’
standing arguments, which were based on their fear of
future injuries, because the plaintiffs’ respective fears
were too speculative. The district court found those
cases apposite and persuasive. See Amnesty Int’l, 646
F. Supp. 2d at 645-47.
    Second, the court examined “ ‘physical surveillance
cases’ where the Supreme Court reached the merits of
challenges to laws or policies authorizing drug or alcohol
testing for specific classes of persons, without requiring
that the plaintiffs had actually submitted to such testing
before bringing such challenges.” Id. at 647-48. The
district court held that those cases have “no application
to this case, where the plaintiffs are not required to do
anything or to submit to anything, and where there is no
showing that the Government has authorized any action
against [a class of persons including] the plaintiffs.” Id.
at 648.
   Finally, the district court examined standing cases
outside 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
                           21a

   to that law or regulation and has a well-founded fear
   that it will be so enforced. The plaintiffs in this case
   have made no showing that they are subject to any
   specific 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 they
   might have a well-founded fear that the Government
   would take action against them for failing to abide by
   the statute. Moreover, the FAA does not authorize
   surveillance of the plaintiffs’ communications and the
   plaintiffs have made no showing that the Govern-
   ment has sought any such surveillance pursuant to
   the general framework set forth in the statute or
   that such surveillance has been authorized.
Id. at 649.
       2. Economic and Professional Costs Incurred to
          Protect 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’ fear
of surveillance.” Id. at 653. The court said that “[t]o
allow the plaintiffs to bring this action on the basis of
such costs would essentially be to accept a repackaged
version of the first failed basis for standing.” Id. More-
over, the court held that “because the plaintiffs have
failed to show that they are subject to the FAA and that
they face a threat of harm from its enforcement, the
chilling of their speech that they attribute to the statute
is actually the result of their purely subjective fear of
surveillance.” Id. The court went on to state that the
Supreme Court has held in Laird v. Tatum, 408 U.S. 1
                            22a

(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 whether
plaintiffs have standing to challenge the FAA. It does
not address the FAA’s constitutionality. The district
court did not reach that issue, and the parties did not
brief it. The question before this Court is only whether
the 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 questions
of standing de novo.” Carver v. City of New York, 621
F.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 the
meaning of Art. III,” and is therefore “entitled to have
the court decide the merits of the dispute or of particu-
lar issues.” Warth, 422 U.S. at 498; see also Whitmore
v. Arkansas, 495 U.S. 149, 155 (1990). A citizen who
dislikes 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 is
inconsistent 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’n
v. Geraghty, 445 U.S. 388, 410 (1980) (internal quotation
                                   23a

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 which
serves in part to cast it in a form traditionally capable of
judicial resolution.” Schlesinger, 418 U.S. at 220-21.
The critical question is whether “the plaintiff has alleged
such a personal stake in the outcome of the controversy
as to warrant his invocation of federal-court jurisdic-
tion.” Summers v. Earth Island Inst., 129 S. Ct. 1142,
1149 (2009) (internal quotation marks and alterations
omitted).
   The Supreme Court has said that “the irreducible
constitutional minimum of standing contains three ele-
ments”:
       First, the plaintiff must have suffered an injury in
       fact—an invasion of a legally protected interest
       which is (a) concrete and particularized, and
       (b) actual or imminent, not conjectural or hypotheti-
       cal.[14] Second, there must be a causal connection
       between the injury and the conduct complained
       of—the injury has to be fairly traceable to the chal-
       lenged action of the defendant, and not the result of
       the independent action of some third party not be-
       fore the court. Third, it must be likely, as opposed to
       merely speculative, that the injury will be redressed
       by 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).
                          24a

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). “The
party invoking federal jurisdiction bears the burden of
establishing these elements.” Lujan, 504 U.S. at 561.
These requirements “assure[] that there is a real need
to 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. The
Supreme Court has said standing is “built on a single
basic idea—the idea of separation of powers.” Allen v.
Wright, 468 U.S. 737, 752 (1984). “[T]he judicial power
of the United States defined by Art. III is not an uncon-
ditioned authority to determine the constitutionality of
legislative or executive acts.” Hein v. Freedom From
Religion 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 cases
where it is necessary to protect a complaining party’s
interests, standing doctrine is “founded in concern about
the proper—and properly limited—role of the courts in
a democratic society.” Warth, 422 U.S. at 498. If we had
no standing doctrine and instead simply allowed the
courts to “oversee legislative or executive action,” that
would “significantly alter the allocation of power away
from a democratic form of government.” Summers, 129
S. Ct. at 1149 (internal quotation marks and ellipsis
omitted).
   Standing doctrine also serves to improve judicial
decision-making by ensuring that a concrete case in-
forms the court of the consequences of its decisions, and
by ensuring that the party bringing the case has “such
                                   25a

a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional ques-
tions.” Baker v. Carr, 369 U.S. 186, 204 (1962); see also
Lujan, 504 U.S. at 581 (Kennedy, J., concurring in part)
(standing requirements “preserve[] the vitality of the
adversarial process by assuring both that the parties
before 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 they
fear that the government will intercept their sensitive
international 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 preventing
the courts from being overwhelmed with cases where plaintiffs have
only an ideological stake, see United States v. Richardson, 418 U.S. 166,
192 (1974) (Powell, J., concurring) (“[W]e risk a progressive impairment
of the effectiveness of the federal courts if their limited resources are
diverted increasingly from their historic role to the resolution of public-
interest suits brought by litigants who cannot distinguish themselves
from all taxpayers or all citizens.”); and promoting fairness, by ensuring
that plaintiffs enforce only their own rights rather than third parties’
rights, see Singleton v. Wulff, 428 U.S. 106, 113-14 (1976) (“First, the
courts should not adjudicate such rights unnecessarily, and it may be
that 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 litigant
is successful or not. Second, third parties themselves usually will be the
best proponents of their own rights.” (citation omitted)).
                           26a

authorizes the acquisition of [their] international com-
munications,” and their communications are “likely to be
monitored under it.” Second, they claim that anticipa-
tion of this future injury also inflicts a present injury
“by compelling them to take costly and burdensome
measures to protect the confidentiality of their interna-
tional communications” and by compromising their
“ability to locate witnesses, cultivate sources, gather
information, communicate confidential information to
their clients, and to engage in other legitimate and con-
stitutionally protected communications.”
    The district court and the parties have focused on
whether the plaintiffs’ asserted injuries satisfy the in-
jury-in-fact component of the standing inquiry. Al-
though they are correct that the plaintiffs’ first asserted
injury—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 they
reach a certain threshold of likelihood, see City of Los
Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983), the plain-
tiffs’ second asserted injury alleges the most mundane
of injuries in fact: the expenditure of funds. The plain-
tiffs’ declarations, which, as discussed above, we must
accept as true, establish that they have already incurred
professional 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 the
plaintiffs have actually incurred the costs they claim to
have incurred. Thus, we have little doubt that the plain-
tiffs have satisfied the injury-in-fact requirement.
                           27a

    As to the second asserted injury—their present-
injury theory—that the plaintiffs have demonstrated
injuries in fact is not sufficient in itself to establish
standing. 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 on
their incurred professional and economic costs focuses
on whether there is a “causal connection between [the
plaintiffs’] injury and the [legislation] complained of.”
Lujan, 504 U.S. at 560. The causal chain can be broken
where a plaintiff ’s self-inflicted injury results from his
“unreasonable decision . . . to bring about a harm that
he knew to be avoidable.” St. Pierre v. Dyer, 208 F.3d
394, 403 (2d Cir. 2000). However, “[s]tanding is not de-
feated merely because the plaintiff has in some sense
contributed to his own injury. . . . Standing is defeated
only if it is concluded that the injury is so completely
due to the plaintiff ’s own fault as to break the causal
chain.” 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 the
FAA, then the measures they took to avoid interception
can support standing. If the possibility of interception
is remote or fanciful, however, their present-injury the-
ory fails because the plaintiffs would have no reasonable
basis for fearing interception under the FAA, and they
cannot bootstrap their way into standing by unreason-
ably incurring costs to avoid a merely speculative or
highly unlikely potential harm. Any such costs would be
gratuitous, and any ethical concerns about not taking
                            28a

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, they
cannot be said to be “fairly traceable” to the FAA—and
cannot support standing—if they are caused by a fanci-
ful, paranoid, or otherwise unreasonable fear of the
FAA. “If causation is to be required at all, it should de-
mand a meaningful level of probability,” but “[a]s with
other elements of standing, the showing required might
be tailored to the other facts that make it more or less
appropriate to decide the case.” Wright, Miller & Coo-
per, supra, § 3531.5, at 328.
    Here, the plaintiffs’ actions were “fairly traceable” to
the FAA. Because, as we shall explain, the plaintiffs’
fears were reasonable even under the stringent reason-
ableness standards found in future-injury cases, and
because the plaintiffs incurred these professional and
economic 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 not
decide whether the degree of likelihood necessary to
establish a causal relationship between an actual present
injury and the challenged governmental action is as
stringent as that necessary for a potential harm in itself
to confer standing. However, the line of future-injury
standing cases provides a helpful framework for analyz-
ing the plaintiffs’ present-injury arguments. Those
cases bolster our conclusion that the professional and
economic harms the plaintiffs suffered here were fairly
traceable to the FAA, and were not the result of an “un-
reasonable decision” on their part “to bring about a
harm that [they] knew to be avoidable.” St. Pierre, 208
F.3d at 403.
                            29a

     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 standing
if it is “conjectural or hypothetical” and not “real and
immediate.” See O’Shea v. Littleton, 414 U.S. 488, 494
(1974) (internal quotation marks omitted). To determine
whether the plaintiffs have standing under their fu-
ture-injury theory, we would need to determine whether
the FAA creates an objectively reasonable likelihood
that the plaintiffs’ communications are being or will be
monitored under the FAA. As noted above, we conclude
that the future injuries alleged by the plaintiffs are in-
deed sufficiently likely to confer standing under the test
established in the case law for basing standing on the
risk of future harm.
    The government’s first argument against the plain-
tiffs’ standing—on both theories—is that the FAA does
not 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, the
plaintiffs have established that they reasonably fear
being monitored under the allegedly unconstitutional
FAA, and that they have undertaken costly measures
to avoid it. Those present injuries—fairly traceable to
the FAA and likely to be redressable by a favorable
judgment—support the plaintiffs’ standing to challenge
the statute.
     The government next argues that the plaintiffs lack
standing because any injury they suffer is indirect. That
is, the government contends that because the FAA does
not directly target the plaintiffs, any injury the plaintiffs
suffer is a result of their reaction to the government’s
potential monitoring of third parties. The government
                                30a

essentially argues that this indirectness defeats the
plaintiffs’ standing because it attenuates the causal
chain linking the plaintiffs’ injuries to the FAA. For the
reasons set forth in Part IV, below, we disagree.
III. Likelihood of Government Action
   The government argues that the plaintiffs can obtain
standing only by showing either that they have been
monitored or that it is “effectively certain” that they will
be monitored. The plaintiffs fall short of this standard,
according to the government, because they “simply spec-
ulate that they will be subjected to governmental action
taken pursuant to [the FAA].”
    But the government overstates the standard for de-
termining when a present injury linked to a contingent
future injury can support standing. The plaintiffs have
demonstrated that they suffered present injuries in
fact—concrete economic and professional harms—that
are fairly traceable to the FAA and redressable by a
favorable judgment. The plaintiffs need not show that
they have been or certainly will be monitored. Indeed,
even in cases where plaintiffs allege an injury based
solely on prospective government action, they need only
show 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 to
First Amendment rights, they must show only “ ‘an ac-
tual and well-founded fear’ ” of injury, Vt. Right to Life
Comm. 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
                                 31a

    A.      Standard
    When a plaintiff asserts a present injury based on
conduct taken in anticipation of future government ac-
tion, we evaluate the likelihood that the future action
will in fact come to pass. To determine whether the
present injury “fairly can be traced to the challenged
[future] action,” see Simon v. Eastern Ky. Welfare
Rights Org., 426 U.S. 26, 38 (1976), we must consider
whether a plaintiff ’s present injury resulted from some
irrational 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 causal
chain required for standing.
    In this context, cases that discuss whether a poten-
tial future harm is sufficiently likely such that the
chance of that future harm constitutes an injury in fact
can provide some guidance for determining whether the
plaintiffs have satisfied the causation requirement for
standing where their assertions of present and ongoing
injuries stem, in part, from a desire to avoid potential
future injuries.17



discuss the distinction here, because it does not determine the outcome
of this case.
  17
     By analyzing the plaintiffs’ allegations of present injury in terms
of cases relating to future harms, we do not suggest that actual present
injuries may only be traced to governmental action when the causal
connection is as strong as the likelihood of injury required to base
standing on contingent future harms. Rather, we use those cases, and
the stringent reasonableness standards they impose for future-injury
standing, to demonstrate just how strong the plaintiffs’ present-injury
standing claims here truly are.
                            32a

    In Lyons, the seminal case on standing based on
probabilistic or prospective harm, the plaintiff sued the
City of Los Angeles and certain police officers alleging
that 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. at
97-98. 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 to
suffer future injury from the use of the chokeholds by
police officers,” id. at 105, emphasizing that “[t]he rea-
sonableness of [the plaintiff ’s] fear [of future injury] is
dependent upon the likelihood of a recurrence of the
allegedly unlawful conduct. It is the reality of the
threat of repeated injury that is relevant to the standing
inquiry, not the plaintiff ’s subjective apprehensions.”
Id. at 107 n.8 (emphasis in original).
    The Court held that Lyons lacked standing to pursue
injunctive relief, because he did not show a sufficient
likelihood that he would be injured. Id. at 111-12. It
said, “[w]e cannot agree that the odds that Lyons would
not only again be stopped for a traffic violation but
would also be subjected to a chokehold without any
provocation 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 “sufficient
likelihood that he will again be wronged in a similar
way,” Lyons was “no more entitled to an injunction than
any other citizen of Los Angeles; and a federal court
may not entertain a claim by any or all citizens who no
more than assert that certain practices of law enforce-
ment officers are unconstitutional.” Id. at 111.
                                   33a

    Although the plaintiff in Lyons lacked standing, that
case clearly articulated the principle that a plaintiff may
obtain standing by showing a sufficient likelihood of fu-
ture injury. Indeed, the Court stated that Lyons would
have established standing if he had been able to allege
facts that would have made his injury sufficiently
likely—such as another encounter with the police or a
city policy authorizing police officers to engage in the
conduct he feared.18
   This Court has articulated the principle of Lyons as
requiring 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 officers
stopped them, maced them, and gave them no treatment
afterward, we denied standing, holding that “the Court
made 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 would
  have had not only to allege that he would have another encounter
  with the police but also to make the incredible assertion either,
  (1) that all police officers in Los Angeles always choke any citizen
  with whom they happen to have an encounter, whether for the
  purpose of arrest, issuing a citation or for questioning or, (2) that the
  City 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 campaign
finance law that raised restrictions on contributions to competitors in
certain circumstances, despite the fact that the raised restrictions had
not yet been triggered when plaintiff filed suit, because “the record at
                                    34a

    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 judgment
and 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 cannot
be defined according to a universal standard.” Baur,
352 F.3d at 637.
   One factor that bolsters a plaintiff ’s argument that
the injury is likely to come to pass, according to both the
Supreme 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. City
of San Jose, 485 U.S. 1, 8 (1988) (“The likelihood of enforcement, with
the concomitant probability that a landlord’s rent will be reduced below
what he or she would otherwise be able to obtain in the absence of the
Ordinance, is a sufficient threat of actual injury to satisfy Art. III’s
requirement that a plaintiff who challenges a statute must demonstrate
a realistic danger of sustaining a direct injury as a result of the statute’s
operation or enforcement.” (internal quotation marks and bracket
omitted)); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438
U.S. 59, 74 (1978) (granting plaintiffs standing to challenge statute that
capped liability for nuclear reactor accidents, because statute created
incentives for defendant to build and operate nearby nuclear reactor
that 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 processed
for human consumption, because it increased chances of plaintiff con-
tracting disease from such meat).
                                    35a

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 particularly
high. See Massachusetts v. EPA, 549 U.S. 497, 525 n.23
(2007) (quoting Vill. of Elk Grove v. Evans, 997 F.2d
328, 329 (7th Cir. 1993), as holding that “even a small
probability of injury is sufficient to create a case or
controversy—to take a suit out of the category of the
hypothetical”). The probability required “logically var-
ies with the severity of the probable harm.” Baur, 352
F.3d at 637. Ultimately, courts consider the totality of
the 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 he
could have alleged that he would have another encounter with the police
and “that the City ordered or authorized police officers to act in such
manner.”); Baur, 352 F.3d at 637 (granting plaintiff standing primarily
on two “critical factors”: (1) government studies and comments con-
firmed several of the plaintiff ’s central allegations; and (2) his “alleged
risk of harm arises from an established government policy”); Deshawn
E. by Charlotte E. v. Safir, 156 F.3d 340, 345 (2d Cir. 1998) (finding
standing for plaintiffs—a certified class of children arrested on possible
delinquency charges who challenged the policies and practices of a
detective squad’s interrogation of children facing possible delinquency
charges—in part because the challenged interrogation methods “are
officially 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 the
Police Commissioner”); Curtis, 726 F.2d at 68 (denying plaintiffs stand-
ing because no city policy authorized police officers to act the way the
plaintiffs alleged they had acted, and the “plaintiffs have not alleged
that 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 not
given treatment afterward”).
                                 36a

interpretation the plaintiff ‘may legitimately fear that it
will face enforcement of the statute,’ then the plaintiff
has standing to challenge the statute.” Pac. Capital
Bank, 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 suffered
present injuries in fact—economic and professional
harms—stemming from a reasonable fear of future
harmful government conduct. They have asserted that
the FAA permits broad monitoring through mass sur-
veillance orders that authorize the government to collect
thousands or millions of communications, including com-
munications between the plaintiffs and their overseas
contacts. 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 fear
results from conduct that is authorized by statute. This
case is not like Lyons, where the plaintiff feared injury
from officers who would have been acting outside the
law, making the injury less likely to occur. Here, the
fact that the government has authorized the potentially
harmful 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 must
convince an Article III judge to approve any surveillance order “makes
less certain the injury here.” This line of argument might shed light on
the merits—on whether the government surveillance authorized by the
FAA is consistent with the Constitution—but it does not directly dis-
pute the plaintiffs’ interpretation of the FAA’s scope.
                           37a

veillance. It is fanciful, moreover, to question whether
the government will ever undertake broad-based sur-
veillance of the type authorized by the statute. The
FAA was passed specifically to permit surveillance that
was 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 of
Sen. Rockefeller) (explaining “why it is necessary for us
to update” FISA); id. at 235 (statement of Sen. Hutchi-
son) (explaining why surveillance authorization proce-
dures must be updated). That both the Executive and
the Legislative branches of government believe that the
FAA authorizes new types of surveillance, and have jus-
tified that new authorization as necessary to protecting
the nation against attack, makes it extremely likely that
such surveillance will occur.
    Furthermore, the plaintiffs have good reason to be-
lieve that their communications, in particular, will fall
within the scope of the broad surveillance that they can
assume 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 will
most likely seek to monitor—i.e., individuals “the U.S.
government believes or believed to be associated with
terrorist organizations,” “political and human rights
activists who oppose governments that are supported
economically or militarily by the U.S. government,” and
“people located in geographic areas that are a special
focus of the U.S. government’s counterterrorism or dip-
lomatic efforts.” The plaintiffs’ assessment that these
individuals are likely targets of FAA surveillance is rea-
sonable, and the government has not disputed that as-
sertion.
                           38a

    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 no
means 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 a
direct risk of harm which rises above mere conjecture”).
Their fears are fairly traceable to the FAA because they
are based on a reasonable interpretation of the chal-
lenged statute and a realistic understanding of the
world. Conferring standing on these plaintiffs is not
tantamount to conferring standing on “any or all citizens
who no more than assert that certain practices of law
enforcement offices are unconstitutional.” Lyons, 461
U.S. at 111. Most law-abiding citizens have no occasion
to communicate with suspected terrorists; relatively
few 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 likely
that their communications will be intercepted if the
government—as seems inevitable—exercises the author-
ity granted by the FAA.
   The government argues the plaintiffs have failed to
establish standing because the FAA does not itself au-
thorize surveillance, but only authorizes the FISC to
authorize surveillance. As a result, the government says
the plaintiffs must speculate about at least two interven-
ing steps between the FAA and any harm they might
suffer 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 the
FISC will grant authorization.
                                  39a

    But this argument fails. The presence of an inter-
vening step does not, as a general rule, by itself preclude
standing.22 Nor do the particular intervening steps the
government identifies here—the government’s seeking
authorization and the FISC’s approving it—preclude
standing. With respect to the first step, as discussed
above, it is more than reasonable to expect that the gov-
ernment will seek surveillance authorization under the
FAA. We therefore cannot say that uncertainty about
this step significantly attenuates the link between the
FAA and the plaintiffs’ harms.
   Nor does the second intervening step add significant
uncertainty. As discussed above, under the FAA the
FISC must enter an order authorizing surveillance if the
government submits a certification that conforms to the
statutory 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 (granting
plaintiff-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, which
causes more frequent and severe flooding, which damages coastal infra-
structure); United States v. Students Challenging Regulatory Agency
Procedures (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 causation
requirement if the complaint avers the existence of an intermediate link
between the state regulations and the injury.” (internal quotation
marks and brackets omitted)); Baur, 352 F.3d at 641 (granting plaintiff
standing despite the fact that a “chain of contingencies may need to oc-
cur” for plaintiff to sustain feared injury).
                                 40a

the necessity or justification for the surveillance. It
verges on the fanciful to suggest that the government
will 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: in
2008, the government sought 2,082 surveillance orders,
and the FISC approved 2,081 of them. We do not know
how many of these applications, if any, came after the
FAA 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 FAA
surveillance orders.23 Without a stronger showing that
the FISC interposes a significant intervening step, we
cannot find that the mere existence of this intervening
step prevents the plaintiffs from obtaining standing to
challenge the FAA.
   Because the plaintiffs’ undisputed testimony clearly
establishes that they are suffering injuries in fact, and
because we find those injuries are causally connected to
the 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 FISC
authorization, 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 the
FISC denies any application for a surveillance order, the government
may conduct the applied-for surveillance while it appeals the FISC
denial. 50 U.S.C. § 1881a(i)(4)(B).
                                   41a

occur—and are redressable by a favorable judgment,24
we find the plaintiffs have standing.
IV.     Indirectness of Harm
    The plaintiffs’ asserted economic and professional
costs 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 individuals
with whom they communicate, to the anticipated
FAA-authorized surveillance of those individuals. The
government argues that the indirectness of these inju-
ries defeats the plaintiffs’ standing. We disagree.
       A.    Standard
   The Supreme Court has made clear that “when the
plaintiff 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 likelihood
that the requested relief will remedy the alleged injury in fact.” Mc-
Connell v. FEC, 540 U.S. 93, 225-26 (2003), overruled on other grounds
by 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 relieve
a discrete injury to himself.”). The requirement turns on the “causal
connection 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 in
fact, because their injuries stem from their reasonable fear of being
monitored by FAA-authorized government surveillance, and if a court
grants their requested relief—an injunction prohibiting the government
from conducting surveillance under the FAA—the feared surveillance
would no longer be permitted and therefore would, presumably, no
longer be carried out.
                           42a

tion or inaction he challenges, standing is not pre-
cluded.” Summers, 129 S. Ct. at 1149 (2009) (internal
quotation marks, brackets, and citation omitted); see
also Lujan, 504 U.S. at 562; accord Garelick v. Sullivan,
987 F.2d 913, 919 (2d Cir. 1993) (“A plaintiff does not
lack standing merely because her injury is an indirect
product of the defendant’s conduct.”). But a plaintiff
who is indirectly harmed by a regulation needs to show
more than does a plaintiff who is directly regulated by
the challenged law:
   When the suit is one challenging the legality of gov-
   ernment action . . . , the nature and extent of facts
   that must be averred (at the summary judgment
   stage) . . . in order to establish standing depends
   considerably upon whether the plaintiff is himself an
   object of the action . . . at issue. If he is, there is
   ordinarily little question that the action or inaction
   has caused him injury, and that a judgment prevent-
   ing or requiring the action will redress it. When,
   however, . . . a plaintiff ’s asserted injury arises
   from the government’s allegedly unlawful regulation
   . . . of someone else, much more is needed.
Lujan, 504 U.S. at 561-62 (emphasis in original). It is
therefore “ordinarily substantially more difficult” to
establish standing based on indirect injuries than on
direct injuries. Summers, 129 S. Ct. at 1149 (internal
quotation 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 requirements
for standing discussed above: (1) an injury in fact
(2) that is causally related to the challenged statute or
conduct and (3) is likely to be redressed by a favorable
                            43a

judicial decision. See Lujan, 504 U.S. at 560-61; Duke
Power, 438 U.S. at 72. Despite not being directly regu-
lated, a plaintiff may establish a cognizable injury in fact
by showing that he has altered or ceased conduct as a
reasonable response to the challenged statute. See, e.g.,
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528
U.S. 167, 184-85 (2000) (granting environmental groups
standing to sue a corporation under the Clean Water Act
because the defendant corporation’s alleged environ-
mental damage deterred members of the plaintiff orga-
nizations from using and enjoying certain lands and
rivers). If the plaintiff makes such an allegation, he
must identify the injury with “specificity,” Socialist
Workers Party v. Att’y Gen., 419 U.S. 1314, 1319 (1974)
(Marshall, Circuit Justice), and he “must proffer some
objective evidence to substantiate his claim that the
challenged conduct has deterred him from engaging in
protected activity,” Bordell v. Gen. Elec. Co., 922 F.2d
1057, 1061 (2d Cir. 1991).
    The plaintiffs have satisfied these requirements
through their uncontroverted testimony that they have
altered their conduct and thereby incurred specific costs
in response to the FAA. As discussed above, we must
accept that undisputed testimony, so the plaintiffs have
established the first constitutional requirement for
standing—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—goes
to whether the plaintiffs’ injuries are causally connected
to the challenged legislation. The causal chain linking
the plaintiffs’ indirect injuries to the challenged legisla-
                           44a

tion is similar to that discussed above: it turns on the
likelihood that the plaintiffs’ communications with the
regulated third parties will be monitored. If the FAA
does 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 being
monitored are the product of their own decisions and are
not sufficiently linked to the FAA; for this reason, they
would not be “fairly traceable to the challenged action,”
Lujan, 504 U.S. at 560. Conversely, if the plaintiffs’
communications with regulated third parties will likely
be monitored despite the fact that the FAA does not
directly regulate the plaintiffs, then those costs are suf-
ficiently tied to the FAA to support standing.
    The Supreme Court and this Court have frequently
found standing on the part of plaintiffs who were not
directly subject to a statute, and asserted only indirect
injuries. Most notably, in Meese v. Keene, 481 U.S. 465
(1987), the Supreme Court found standing in a plaintiff
who, 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 a
statute that required certain films to be labeled “politi-
cal propaganda.” Id. at 467. The district court in that
case made clear that “[a]ccording to the authoritative
agency interpretation of the Act and the regulations,
plaintiff [wa]s free to remove the [‘political propaganda’]
label before exhibiting the films.” Keene v. Smith, 569
F. 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 not
directly regulate the plaintiff or require him to do, or
refrain from doing, anything at all. The Meese plaintiff,
                           45a

however, was injured indirectly. He wanted to show
three labeled films, but because he did “not want the
Department of Justice and the public to regard him as
the disseminator of foreign political propaganda,” he
abstained from screening the films. Meese, 481 U.S. at
467-68. He sued to enjoin the application of the statute
to these films.
    That the statute did not regulate him directly was no
barrier to standing. The Court found he had established
a 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 was
causally linked to the statute, because the plaintiff
averred, with support from expert affidavits, that if he
showed the films “his personal, political, and profes-
sional reputation would suffer and his ability to obtain
re-election and to practice his profession would be im-
paired.” Id. at 473. The Court approved the district
court’s conclusion that “the Act puts the plaintiff to the
Hobson’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 affected
him 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 to
challenge a corporation’s alleged Clean Water Act viola-
tion. The plaintiffs did not claim that the defendant took
direct actions against them. Instead, they showed that
because they feared exposure to the defendant’s pollu-
tion they had ceased to engage in certain recreational
activities in the area, such as swimming, camping, and
birdwatching. Friends of the Earth, 528 U.S. at 181-82.
                                  46a

The Court found that the plaintiffs’ decision to curtail
those activities was “enough for injury in fact,” and
found that the plaintiffs’ reactions were reasonable re-
sponses to the threat of exposure to pollution. Id. at
183-85.25
   These cases establish that a plaintiff has standing to
challenge a statute that does not regulate him if he can
show that the statute reasonably caused him to alter or
cease certain conduct. In the instant case, the key to
determining whether the plaintiffs have standing based
on the indirect injuries they suffer is determining
whether someone who wants to protect the privacy of his
communications would reasonably take the measures
these plaintiffs took not to be overheard.



  25
     For other examples of cases finding standing in plaintiffs who were
not directly regulated by the statutes they challenged and who asserted
indirect injuries, see Massachusetts v. EPA, 549 U.S. at 521-26 (grant-
ing State of Massachusetts standing to challenge EPA’s refusal to
regulate greenhouse gas emissions because those emissions contribute
to global warming, which contributes to a rise in sea level, which causes
more 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 nuclear
reactor accidents, because statute created incentives for defendant to
build and operate nearby nuclear reactor that would release small
quantities of radiation that would potentially have aesthetic, environ-
mental, and health affects); SCRAP, 412 U.S. at 678, 683-90 (granting
environmental group standing to challenge increase in railroad rate be-
cause it would decrease use of recycled products, which would adversely
affect environment near plaintiffs and would impair plaintiffs’ use of
nearby forests, streams, mountains); Baur, 352 F.3d at 632-36 (granting
individual standing to challenge FDA regulations of meat producers
and processors based on alleged increased risk of contracting a food-
borne illness).
                                   47a

       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 to
be monitored. Moreover, the various groups of plain-
tiffs—attorneys, journalists, and human rights, labor,
legal, and media organizations—have established that
they 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 search
authorized by the FAA would be an illegal search that
the plaintiffs would reasonably try to avoid.26
    Moreover, each of the plaintiffs has alleged that the
risk of being monitored causes additional injuries be-
yond the mere fact of being subjected to a putatively
unconstitutional invasion of privacy. The risk of being
monitored by the government threatens the safety of
their sources and clients, impedes their ability to do
their jobs, and implicates the attorneys’ ethical obliga-
tions. Journalists Klein and Hedges, for example, assert
that if their communications 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 governments, non-state actors, and the U.S.

  26
     We emphasize again that we express no view with respect to the
ultimate correctness of the plaintiffs’ argument that the FAA violates
the Constitution. The only issue here is whether the plaintiffs have
standing to present their argument to a court. That question requires
us to ask whether the statute, if it is unconstitutional, would inflict any
injury on the plaintiffs.
                                   48a

government. Likewise, attorney Mariner asserts that if
her communications with human rights abuse victims on
behalf of Human Rights Watch are monitored, the vic-
tims will draw unwanted attention to themselves and
might risk further abuse. Attorneys Royce and McKay,
who represent Guantanamo Bay prisoners and others,
assert that they risk disclosing litigation strategies
to the opposing party (the U.S. government) and violat-
ing ethical obligations if their communications with co-
counsel, clients and their family members, experts, and
investigators around the world are monitored.27 The
plaintiffs act reasonably in trying to avoid these injuries.
   Since it is reasonable for the plaintiffs to seek to
avoid being monitored, we must consider whether the
particular measures they took were reasonable. They
were. 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 instances
they incurred the costly burdens of traveling to commu-
nicate or to obtain that information in person rather
than electronically. These are not overreactions to the

  27
     Both the attorneys and the non-attorneys have reason to fear being
monitored under the challenged statute, so both categories of plaintiffs
are justified in taking measures to avoid this injury. The attorneys ar-
gue that their ethical duty obligates them to incur these expenses. That
is true, but it does not entitle the attorneys to special treatment in this
standing inquiry. The attorneys’ ethical duty is triggered only when the
risk of surveillance reaches a certain threshold of likeliness. But when
that threshold is met, as it has been here, the non-attorney plaintiffs
also have reason to fear being monitored, and they are equally justified
in taking measures to avoid what they contend is an illegal search. The
fact that an ethical obligation compels the attorneys to take avoidance
measures does not mean that their taking those measures, in itself, is
any more reasonable than the other plaintiffs taking similar measures
for reasons other than ethical concerns.
                                  49a

FAA; they are appropriate measures that a reasonably
prudent person who plausibly anticipates that his con-
versations are likely to be monitored, and who finds it
important to avoid such monitoring, would take to avoid
being overheard. The plaintiffs have therefore estab-
lished that those injuries are linked to the statute they
challenge.
    In sum, the FAA has put the plaintiffs in a lose-lose
situation: either they can continue to communicate sen-
sitive information electronically and bear a substantial
risk of being monitored under a statute they allege to be
unconstitutional, or they can incur financial and profes-
sional costs to avoid being monitored. Either way, the
FAA directly affects them.28
    The Supreme Court has said that “the gist of the
question of standing” is whether “the appellants alleged
such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so
largely depends for illumination of difficult constitu-
tional questions.” Baker, 369 U.S. at 204. The instant
plaintiffs are not merely random citizens, indistinguish-
able from any other members of the public, who want to
test in court the abstract theory that the FAA is incon-
sistent with the Constitution; rather, these plaintiffs
have shown that, regardless of which course of action
they elect, the FAA affects them. We therefore con-

  28
     See Meese, 481 U.S. at 475 (approving the district court’s analysis
that the plaintiffs have met the standing requirement, in part, because
the 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 own
views or suffering an injury to his reputation.” (internal quotation
marks and citation omitted)).
                           50a

clude that they have a sufficient “personal stake” to
challenge the FAA. That does not mean that their chal-
lenge will succeed; it means only that the plaintiffs are
entitled to have a federal court reach the merits of their
challenge. We need not “decide whether appellants’
allegations . . . will, ultimately, entitle them to any
relief, in order to hold that they have standing to seek
it.” Baker, 369 U.S. at 208.
V. Laird v. Tatum
    The government’s principal arguments against the
above analysis rest on a single case, Laird v. Tatum, 408
U.S. 1 (1972). Laird is unquestionably relevant to this
case, as it is the only case in which the Supreme Court
specifically addressed standing to challenge a govern-
ment surveillance program. Because Laird significantly
differs from the present case, however, we disagree with
the government’s contention that Laird controls the
instant case, and that Laird created different and strict-
er standing requirements for surveillance cases than for
other types of cases.
    In Laird, the plaintiffs challenged a surveillance pro-
gram that authorized the Army to collect, analyze, and
disseminate information about public activities that had
potential to create civil disorder. The Army collected its
data 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 open
to the public and who wrote field reports describing the
meetings.” Laird, 408 U.S. at 6. The Court noted that
the court of appeals had characterized the information
gathered as “nothing more than a good newspaper re-
porter would be able to gather by attendance at public
meetings and the clipping of articles from publications
                           51a

available on any newsstand.” Id. at 9 (internal quotation
marks omitted). Roughly sixty government agents
around the country participated in the surveillance pro-
gram. Id. at 6-7.
    The plaintiffs sought to enjoin the program. They
claimed that they “disagree[d] with the judgments”
made by the Executive Branch about the scope of the
surveillance program, id. at 13, and they argued that “in
the future it is possible that information relating to mat-
ters far beyond the responsibilities of the military may
be misused by the military to [their] detriment,” id. at
9. But the Court stated that the plaintiffs
   [did] not attempt to establish this as a definitely
   foreseeable event, or to base their complaint on this
   ground. Rather, [the plaintiffs] contend[ed] that the
   present 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 inhibiting
   effect on their full expression and utilization of their
   First Amendment rights.
Id. at 10 (internal quotation marks omitted).
    The Court noted the court of appeals’s observation
that the plaintiffs “have some difficulty in establishing
visible 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 surveillance
activities.” Id. at 9 (citation and alteration omitted).
The Court stated that any alleged chilling effect arose
from the plaintiffs’ “perception of the system as inappro-
priate to the Army’s role under our form of govern-
                            52a

ment,” or the plaintiffs’ “beliefs that it is inherently dan-
gerous for the military to be concerned with activities in
the civilian sector,” or the plaintiffs’ “less generalized
yet speculative apprehensiveness that the Army may at
some future date misuse the information in some way
that 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 the
plaintiffs did not identify any concrete harm inflicted by
the program.
   The Court therefore considered:
   whether the jurisdiction of a federal court may be
   invoked by a complainant who alleges that the exer-
   cise of his First Amendment rights is being chilled
   by the mere existence, without more, of a govern-
   mental investigative and datagathering activity that
   is alleged to be broader in scope than is reasonably
   necessary for the accomplishment of a valid govern-
   mental purpose.
408 U.S. at 10 (emphasis supplied).
    The Court denied plaintiffs standing. It held that the
plaintiffs’ complaints about “the very existence of the
Army’s data-gathering system” and their “[a]llegations
of a subjective ‘chill’ are not an adequate substitute for
a claim of specific present objective harm or a threat of
specific future harm.” Id. at 13-14. The Court noted
that although previous cases have found governmental
regulations unconstitutional based on their “chilling”
effect,
   [i]n none of these cases, however, did the chilling
   effect arise merely from the individual’s knowledge
                           53a

   that a governmental agency was engaged in certain
   activities or from the individual’s concomitant fear
   that, armed with the fruits of those activities, the
   agency 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, or
   compulsory 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 directly
governed by Laird,” because the only specific present
harms 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 relied
principally on monitoring through publicly available
sources activities conducted entirely in public, harmed
them. They did not claim that they, or anyone with
whom they regularly interacted, would be subject to any
illegal or unconstitutional intrusion if the program they
challenged was allowed to continue. Rather, they
claimed only that they might be injured if the informa-
tion lawfully collected by the military were misused in
some unspecified way at some unspecified point in the
future, and they alleged that the surveillance scheme
had a chilling effect, while essentially admitting that
they themselves had not been chilled, and that the pro-
gram had not altered their behavior in any way.
                                  54a

    By contrast, the instant plaintiffs clearly have al-
leged specific and concrete injuries. Unlike the Laird
plaintiffs, they do not challenge a program of informa-
tion gathering that they concede is lawful, on the theory
that the information gathered may be misused in the
future 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 vaguely
allege that they might be subject to surveillance under
the program; rather, they set forth specific, concrete
reasons to believe they are likely to be overheard, be-
cause their legitimate activities bring them into contact
with the very types of people who are the professed tar-
gets of the statutorily authorized surveillance. And far
from alleging an undefined “chill” that has not affected
their 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 legitimate
professional activities in an ethical and effective manner,
which can be done only by taking every precaution to
avoid being overheard in the way that the challenged
statute makes reasonably likely.29
  This case is a far cry from Laird. In this case, as
demonstrated above, the plaintiffs allege injuries that

  29
     See Socialist Workers Party, 419 U.S. at 1319 (Marshall, Circuit
Justice) (holding that, as distinguishable from Laird, the plaintiffs’
allegations were specific enough to satisfy the “threshold jurisdictional
question” 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 Socialist
Alliance] delegates from participating actively in the convention and
leading to possible loss of employment for those who are identified as
being in attendance.”).
                                55a

establish their standing consistent with the standing
jurisprudence of the Supreme Court and this Court. In
Laird, by contrast, the plaintiffs alleged no such inju-
ries. Indeed, because the Laird plaintiffs offered so
little by way of concrete injury, direct or indirect, Laird
has little or nothing to say about the critical issue in this
case: the reasonableness of the plaintiffs’ fear of future
injury from the FAA, and the causal relation of the chal-
lenged statute to the tangible costs the plaintiffs claim
they have incurred.
    The government next argues, however, that even if
Laird does not directly govern this case, it created spe-
cial standing rules for surveillance cases that are
stricter than those that apply to other types of cases,
and that those special rules preclude standing in this
case. We disagree.
    First, the government argues that under Laird a
plaintiff may challenge a surveillance statute only if he
is “subject to” that statute, meaning that he belongs to
a 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 previous
plaintiffs who obtained standing to challenge a regula-
tion that did not explicitly target them were able to do
so because they were or would soon be “subject to the
regulations, proscriptions, or compulsions” they chal-
lenged. Id. at 11. The government thus argues that the
instant plaintiffs cannot obtain standing to challenge the
FAA, because the FAA “does not direct intelligence
gathering activities against the plaintiffs. Nor does it
authorize plaintiffs to be targeted.” 30
  30
    The government points out that certain of our sister circuits have
read Laird to have created such a requirement in surveillance cases.
                                    56a

    Second, the government argues that Laird precludes
standing 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 a
chilling effect upon the exercise of their First Amend-
ment rights, and the Court rejected that allegation as a
ground for standing. The government adopts United
Presbyterian’s interpretation of Laird, which says that
in order to obtain standing plaintiffs must show that
they “suffer[] some concrete harm (past or immediately
threatened) apart from the ‘chill’ itself,” such as denial
of 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]o
allege a sufficient injury under the First Amendment, a plaintiff must
establish that he or she is regulated, constrained, or compelled directly
by the government’s actions, instead of by his or her own subjective
chill.”); Id. at 688 (Gibbons, J., concurring) (noting that “the plaintiffs
have failed to provide evidence that they are personally subject to the”
surveillance program”); United Presbyterian, 738 F.2d at 1738 (noting
that the plaintiffs are not subject to the challenged regulation because
“Executive Order No. 12333 issues no commands or prohibitions to
these plaintiffs, and sets forth no standards governing their conduct”);
Id. at 1380 (“[H]ere, as in [Laird], no part of the challenged scheme
imposes or even relates to any direct governmental constraint upon the
plaintiffs. . . . ”). Similarly, in the instant case, the district court held
that “[w]ithout showing that they are subject to the statute they seek
to challenge, the plaintiffs’ fear that they will suffer harm from that
statute is speculative and hypothetical.” Amnesty Int’l, 646 F. Supp. 2d
at 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., lead
opinion) (“I cannot subscribe to a view that the reason the injury in
Laird was insufficient was because the plaintiffs alleged ‘only’ chilled
                                   57a

ernment dismisses the economic and professional costs
the plaintiffs have incurred because they “flow directly
from the ‘subjective chill’ on plaintiffs’ speech caused
solely by the existence of [the FAA].” The government
says those injuries are “nothing more than a repackaged
version of the ‘subjective chill’ that the Supreme Court
found insufficient to establish standing in Laird.”
    We are not persuaded that Laird created either of
these special standing rules for surveillance cases.
Since Laird is the only Supreme Court precedent in
which a plaintiff who had not been surveilled claimed
standing to challenge a surveillance scheme, it is natural
to look to it for guidance. However, the government
reads far more into Laird than either its facts or its lan-
guage permit. In doing so, it loses sight of the general
principles 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 deny
plaintiffs standing. The Laird plaintiffs identified no
injury that they had suffered or would likely suffer. In
the absence of any clear alleged injury, the Court could
not find that the plaintiffs had satisfied the normal
standing requirements, and it therefore did not need to
invent new rules to reach that outcome. As we have
demonstrated at length above, the facts of Laird are
simply not comparable to those presented in the instant
case. That the Laird plaintiffs were held to lack stand-
ing does not imply that the instant plaintiffs similarly
have failed to allege injury. Any statement in Laird of


speech and that, by something ‘more,’ the Laird Court meant more
subjective injury or other injuries that derive from the chilled speech.”).
                               58a

a general rule applicable to all surveillance cases could
only be dictum.
    Second, Laird in fact contains no such purported
special rules for surveillance cases. Nothing in Laird
supports the conclusion that the Court intended to
change the standing rules, nor does it explain any need
to create standing rules for surveillance cases distinct
from the rules applicable in other contexts. To the con-
trary, Laird’s final sentence makes clear that the result
in that case was dictated by the well-established general
principles of standing:
       [T]here is nothing in our Nation’s history or in this
       Court’s decided cases, including our holding today,
       that can properly be seen as giving any indication
       that actual or threatened injury by reason of unlaw-
       ful activities of the military would go unnoticed or
       unremedied.
Laird, 408 U.S. at 16. The language quoted by the gov-
ernment—that some previous plaintiffs who obtained
standing 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 to
establish a fixed requirement for standing in the surveil-
lance context or in any other; it merely contrasts the
situation of the Laird plaintiffs with those of other plain-
tiffs who were found to have standing.
    Third, while the government relies heavily on ACLU
v. NSA and United Presbyterian to support its interpre-
tation of Laird, those cases do not bind us, and they are
factually distinguishable from the instant case.32 More-
  32
    In ACLU v. NSA, the plaintiffs challenged a narrow surveillance
program that monitored particular individuals the government sus-
                                  59a

over, we do not find their interpretations of Laird to be
persuasive. They read Laird essentially the same way
the government does, without explaining why we should
read Laird to have ratcheted up the standing require-
ments in surveillance cases, sub silentio, where the
plaintiffs at issue clearly lacked standing under the nor-
mal rules. We do not see any reason why the law of
standing 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 of
standing, the plaintiffs here have alleged that they rea-
sonably anticipate direct injury from the enactment of
the FAA because, unlike most Americans, they engage
in legitimate professional activities that make it reason-
ably likely that their privacy will be invaded and their
conversations overheard—unconstitutionally, or so they
argue—as a result of the surveillance newly authorized
by the FAA, and that they have already suffered tangi-
ble, indirect injury due to the reasonable steps they
have 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 broader
surveillance program. This fact increases the likelihood that the instant
plaintiffs will be harmed in the future, which is a key consideration in
determining whether the plaintiffs should have standing to challenge
the underlying statute. In United Presbyterian, the plaintiffs chal-
lenged an executive order that, inter alia, established procedures for
the FBI and other intelligence agencies to divide their overlapping
surveillance duties. The D.C. Circuit said the plaintiffs essentially
challenged 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 risk
that they would be surveilled under the executive order they chal-
lenged. Id. at 1380.
                                   60a

impair their ability to carry out those activities. Noth-
ing more is required for standing under well-established
principles. And nothing in Laird, where the plaintiffs
alleged no comparable injury, purports to change those
principles.33
                           CONCLUSION
    The plaintiffs’ uncontroverted testimony that they
fear their sensitive international electronic communica-
tions being monitored and that they have taken costly
measures to avoid being monitored—because we deem
that fear and those actions to be reasonable in the cir-
cumstances of this case—establishes injuries in fact that
we 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 power
is 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 the
Government, the Court was merely distinguishing earlier cases, not
setting out a rule for determining whether an action is justiciable or
not.” (internal quotation marks and citations omitted)); see also Meese,
481 U.S. at 472-74 (Laird’s prohibition of standing based on “subjective
chill” does not preclude standing for plaintiff who alleged that his show-
ing of films was chilled by a statute that required certain films to be
labeled “political propaganda.”); Presbyterian Church (U.S.A.) v. Uni-
ted States, 870 F.2d 518, 522-23 (9th Cir. 1989) (holding Laird does not
apply where the alleged effect of INS surveillance on churches is “not
a 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 challenged
activity “reasonably [leads] [plaintiff] to believe” he must alter his
behavior).
                          61a

tional FAA. We therefore find that plaintiffs have
standing to challenge the constitutionality of the FAA in
federal court.
                           62a

                     APPENDIX B

       UNITED STATES DISTRICT COURT
  FOR 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 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 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 authorize
surveillance targeting non-United States persons lo-
cated outside the United States to acquire foreign intel-
ligence information.
  The plaintiffs are attorneys and organizations in the
United States whose work necessitates international
                                 63a

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 and
Chief of the Central Security Service, and the Attorney
General of the United States.1
    The plaintiffs fear that their international communi-
cations will be monitored under the FAA. They make no
claim that their communications have yet been moni-
tored, and they make no allegation or showing that the
surveillance of their communications has been autho-
rized or that the Government has sought approval for
such surveillance. However, the plaintiffs assert that
they have an “actual and well-founded fear” of surveil-
lance under the FAA and claim already to have incurred
significant costs in taking steps to protect their interna-
tional 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 plain-
tiffs have failed to show that they have standing to bring
their 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).
                                 64a

                                   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 sig-
nificant 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 ap-
pointed 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 offi-
cer 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
  2
    Prior to October 26, 2001, the date on which the Patriot Act became
effective, FISA required that obtaining foreign intelligence information
be “the purpose” of electronic surveillance, rather than “a significant
purpose.” See United States v. Sattar, No. 02 Cr. 395, 2003 WL
22137012, at *3 & n.3 (S.D.N.Y. Sept. 15, 2003).
                           65a

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 state-
ment concerning the previous applications sought; and
a 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 Attorney
General 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 include
a certification from a high ranking executive officer em-
ployed in the area of national security or defense that
the 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 included
information relating to the ability of the United States
to 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 sought
could 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 the
Patriot Act, the executive officer was required to certify
that “a significant purpose of the surveillance is to ob-
tain foreign intelligence information.”       50 U.S.C.
§ 1804(a)(6).
                            66a

    Prior to approving the requested electronic surveil-
lance, a FISC judge had to find that: (1) the application
was 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 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 mini-
mization procedures met the definition of minimization
procedures set forth in § 1801(h); and (4) the application
contained all statements and certifications required un-
der § 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 re-
quested 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 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; the
means by which the surveillance would be effected; and
the period of time for which the surveillance was ap-
proved; and to direct that the minimization procedures
be followed. 50 U.S.C. § 1805(c).
   The FISA framework governed applications for or-
ders authorizing electronic surveillance to obtain foreign
intelligence information, including surveillance of com-
munications between persons located within the United
States (“domestic communications”) and surveillance of
communications between persons located within the
                          67a

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 ac-
   quired 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, me-
   chanical, or other surveillance device of the contents
   of any radio communication, under circumstances in
   which 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 all
   intended recipients are located within the United
   States; or
   (4) the installation or use of an electronic, mechani-
   cal, or other surveillance device in the United States
   for monitoring to acquire information, other than
   from a wire or radio communication, under circum-
   stances in which a person has a reasonable expecta-
                                  68a

      tion of privacy and a warrant would be required for
      law 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 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, sets forth a new framework displacing the pre-
existing FISA framework where the Government seeks
approval from the FISC to authorize surveillance tar-
geting non-United States persons located outside the
United 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 not
regulate. The Government represents that the percentage was greater
than 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).
                                   69a

ance with [50 U.S.C. § 1881a(i)(3)] or a determination
under [50 U.S.C. § 1881a(c)(2)], the Attorney General
and the Director of National Intelligence may authorize
jointly, for a period of up to 1 year from the effective
date of the authorization, the targeting of persons rea-
sonably believed to be located outside the United States
to 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 authorizing
such surveillance from the FISC. 50 U.S.C. §§ 1881a(a)
& (i)(3).5 The application consists of providing a written
certification and any supporting affidavit, under oath
and under seal, to the FISC. The certification must at-
test, among other things, that a significant purpose of
the requested surveillance is to obtain foreign intelli-
gence information; that the surveillance involves obtain-
ing such information from or with the assistance of an
electronic communications service provider; and that the


  5
     The FAA provides an exception where the Attorney General and
the 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 of
the United States may be lost or not timely acquired and time does not
permit the issuance of an order pursuant to 50 U.S.C. § 1881a(i)(3) prior
to the implementation of such authorization. 50 U.S.C. § 1881a(c)(2).
In the case of a determination of exigent circumstances pursuant to 50
U.S.C. § 1881a(c)(2), the Attorney General and the Director of National
Intelligence must undertake as soon as practicable, but in no event later
than 7 days after such determination is made, to fulfill the same re-
quirements ordinarily imposed before an order authorizing surveillance
under the FAA may be obtained from the FISC. 50 U.S.C.
§ 1881a(g)(1)(B).
                                  70a

surveillance complies with certain limitations set forth
in § 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 target
any person known at the time of the surveillance to be
located 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, known
person reasonably believed to be in the United States;
or any United States person reasonably believed to
be located outside the United States. 50 U.S.C.
§ 1881a(b)(1-3). Moreover, the requested surveillance
may not intentionally acquire communications known at
the 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 Section
1881a(b) also provides that the requested surveillance
must be conducted in a manner consistent with the
Fourth Amendment. 50 U.S.C. § 1881a(b)(5).
    The certification must attest that guidelines have
been adopted in accordance with 50 U.S.C. § 1881a(f ) to
ensure compliance with the limitations in § 1881a(b) and
to ensure that an application for a court order is filed as
required by § 1881a. 50 U.S.C. § 1881a(g)(2)(A)(iii). In
addition, such guidelines must be provided to the con-
gressional intelligence committee and the Committees
on 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 radio
communications to obtain foreign intelligence information, it establishes
regulations where none existed under FISA.
                           71a

consistent with the Fourth Amendment.           50 U.S.C.
§ 1881a(g)(2)(A)(iv).
    The certification must attest that the Government
has targeting and minimization procedures in place that
have been approved by the FISC or have been submit-
ted to the FISC for approval or will be submitted with
the certification. 50 U.S.C. § 1881a(g)(2)(A)(i-ii). The
certification must also include the actual procedures and
attest that they comply with the Fourth Amendment.
50 U.S.C. § 1881a(g)(2)(B) & (g)(2)(A)(iv). “Targeting
procedures” are procedures reasonably designed to en-
sure that the requested surveillance is limited to target-
ing persons reasonably believed to be located outside
the 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 FAA
must meet the definition of minimization procedures for
purposes of electronic surveillance under FISA. Mini-
mization procedures are:
   (1) specific procedures, which shall be adopted by
   the Attorney General, that are reasonably designed
   in 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 unconsenting
   United States persons consistent with the need of the
   United States to obtain, produce, and disseminate
   foreign 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
                                 72a

      not be disseminated in a manner that identifies any
      United States person, without such person’s consent,
      unless such person’s identity is necessary to under-
      stand foreign intelligence information or assess its
      importance; [and]
      (3) notwithstanding paragraphs (1) and (2), proce-
      dures that allow for the retention and dissemination
      of information that is evidence of a crime which has
      been, is being, or is about to be committed and that
      is to be retained or disseminated for law enforcement
      purposes[.]
50 U.S.C. § 1801(h).7
    The certification required by the FAA must be
supported, as appropriate, by the affidavit of any appro-
priate official in the area of national security who is
appointed by the President, by and with the advice
and consent of the Senate, or who is the head of an
element 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 days
after the submission of the certification to the FISC; or,
if the acquisition has begun or the effective date is less
than 30 days after the submission of the certification to

  7
    Section 1801(h) includes a fourth requirement for minimization
procedures where surveillance is conducted pursuant to 50 U.S.C.
§ 1802(a). Surveillance conducted under § 1802(a) is solely directed at
communications transmitted by means of communications used exclu-
sively between or among foreign powers, among other things, and may
be authorized without a court order if the requirements of that section
are satisfied. 50 U.S.C. § 1802(a). Surveillance conducted pursuant to
the FAA is not subject to the minimization requirement set forth in
§ 1801(h) that applies only to surveillance conducted pursuant to
§ 1802(a).
                           73a

the FISC, the date the acquisition began or the effective
date of the acquisition. 50 U.S.C. § 1881a(g)(2)(D).
    The FISC has jurisdiction to review a certification
for electronic surveillance under the FAA, including the
targeting and minimization procedures that were
adopted by the Attorney General in consultation with
the Director of National Intelligence. 50 U.S.C.
§ 1881a(i)(1)(A). The FAA provides that the FISC shall
review the certification, the targeting procedures and
the minimization procedures to ensure that they comply
with all of the requirements discussed above. 50 U.S.C.
§ 1881a(i)(2). If the FISC finds that the certification
contains all the required elements and the targeting and
minimization procedures are in compliance with the stat-
ute and with the Fourth Amendment, it must issue an
order granting the Government approval to authorize
the requested surveillance. 50 U.S.C. § 1881a(i)(3)(A).
The FISC must complete its review and issue an order
with respect to an application for an order authorizing
surveillance no more than 30 days after the date on
which 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 an
order rejecting an application for a surveillance order to
the FISA Court of Review. The Court of Review must
decide an appeal no more than 60 days from the date the
appeal is filed. The Government is permitted to con-
tinue any surveillance affected by a FISC order while an
appeal to the Court of Review is pending, or while any
rehearing of the FISC order by the FISC en banc is
pending. The Government may file a petition for a writ
                                74a

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 of
compliance 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 assessment
shall be made by the Attorney General and the Director
of National Intelligence, and submitted to the FISC, the
congressional intelligence committees, and the Commit-
tees on the Judiciary of the House of Representatives
and the Senate.8 50 U.S.C. § 1881a(l).
    The FAA also provides that the Inspector General of
the Department of Justice and the Inspector General of
each element of the intelligence community authorized
to acquire foreign intelligence information under § 1881a
are authorized to review compliance with the targeting
and 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 to
a United States person identity and the number of
United States person identities subsequently dissemi-
nated by the element concerned in response to requests
for identities that were not referred to by name or title
in 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 congressional
committees, under this provision and all other provisions in the FAA,
is subject to the Rules of the House of Representatives, the Standing
Rules of the Senate, and Senate Resolution 400 of the 94th Congress or
any successor Senate resolution. 50 U.S.C. § 1881a(l)(B).
                           75a

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 annual
review to determine whether there is reason to believe
that foreign intelligence information has been or will be
obtained from the surveillance. The annual review is
required to provide an accounting of the number of dis-
seminated intelligence reports containing a reference to
a United States person identity; an accounting of the
number of United States person identities subsequently
disseminated by that element in response to requests for
identities that were not referred to by name or title in
the original reporting; the number of targets that were
later determined to be located in the United States and,
to the extent possible, whether communications of such
targets 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 of
National Intelligence to assess, in a manner consistent
with national security, operational requirements and the
privacy interests of United States persons, the extent to
which 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 to
evaluate the adequacy of the minimization procedures
used and, as appropriate, the application of the minimi-
                                 76a

zation procedures to a particular surveillance. 50 U.S.C.
§ 1881a(l)(3)(B). The annual reviews are to be provided
to the FISC, the Attorney General, the Director of Na-
tional Intelligence, the congressional intelligence com-
mittees, and the Committees on the Judiciary of the
House of Representatives and the Senate. 50 U.S.C.
§ 1881a(l)(3)(C).9
    In applying for an order from the FISC approving
the authorization of surveillance under the FAA, the
Government 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 to
identify the specific targets of the requested surveil-
lance or to show probable cause that the prospective
targets of the surveillance are foreign powers or agents
thereof.

                                  II
    The plaintiffs move for summary judgment declaring
the FAA unconstitutional, and the Government moves
for summary judgment dismissing the plaintiffs’ consti-
tutional challenge. Summary judgment may not be
granted unless “the pleadings, the discovery and disclo-
sure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the
movant 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 by
the 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).
                                  77a

U.S. 317, 322 (1986); Roe v. City of Waterbury, 542 F.3d
31, 35 (2d Cir. 2008); New York State Motor Truck Ass’n
v. Pataki, No. 03 Civ. 2386, 2004 WL 2937803, at *3
(S.D.N.Y. Dec. 17, 2004).
   Although both parties have moved for summary
judgment, the only factual submissions in the record are
those made by the plaintiffs. In opposing the plaintiffs’
motion for summary judgment, and in responding to the
plaintiffs’ Statement of Undisputed Facts pursuant to
Local Rule 56.1 (the plaintiffs’ “56.1 Statement” or “56.1
Stmt.”), 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 own
motion for summary judgment. At oral argument, the
Government clarified that it was accepting the factual
submissions of the plaintiffs as true for purposes of
these motions. (Tr. 48-49.) Of course, that does not im-
ply the acceptance of any legal conclusions embedded in
the 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 56.1
Statement disregarded in determining whether there
are genuine issues of material fact).10

  10
     The plaintiffs argue in passing that the defendants should not be
entitled to summary judgment because they failed to submit a 56.1
Statement in support of their motion for summary judgment. However,
the Court can dispense with the requirement of a 56.1 Statement, see
Hadden 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, 109
n.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 to
accept the plaintiffs’ allegedly undisputed facts, the conditional accept-
ance of which is in any event the consequence of failing to submit a 56.1
                                    78a

    Accordingly, the following facts are undisputed.11
The plaintiffs are attorneys and human rights, labor,
legal, and media organizations whose work requires
them to engage in sensitive and sometimes privileged
telephone and email communications with colleagues,
clients, journalistic sources, witnesses, experts, foreign
governmental officials, and victims of human rights
abuses located outside the United States. (Pl.’s 56.1
Stmt. ¶ 9(A).) Some of the plaintiffs communicate by
telephone 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 of
the plaintiffs communicate by telephone and email with
political and human rights activists who oppose govern-
ments that are supported economically or militarily by
the United States Government. (Pl.’s 56.1 Stmt. ¶ 9(C).)
Some of the plaintiffs communicate by telephone and
email with people located in geographic areas that are a
special 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., 581
F. 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 their
standing to warrant a trial. See Simon v. Eastern Kentucky Welfare
Rights Organization, 426 U.S. 26, 53-54 (1976). If the plaintiffs fail to
meet 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 are
material to the disposition of these motions. See, e.g., Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
                            79a

    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 plaintiffs
believe 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 way
the plaintiffs do their jobs. (Pl.’s 56.1 Stmt. ¶ 9(G).)
Namely, the plaintiffs feel constrained in locating wit-
nesses, cultivating sources, gathering information, and
communicating confidential information to their clients,
among other things. (Pl.’s 56.1 Stmt. ¶ 9(H).) The plain-
tiffs have ceased engaging in certain conversations on
the telephone and by email. (Pl.’s 56.1 Stmt. ¶ 9(I).)
The attorney plaintiffs have an ethical obligation to
avoid communicating confidential information about cli-
ent matters over telephone, fax, or email if they have
reason to believe that it is likely to be intercepted by
others. (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 with
individuals 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 has
affected their work more than their reaction to previous
regulatory enactments providing frameworks for Gov-
ernment surveillance. (Pl.’s 56.1 Stmt. ¶ 9(L).)

                            III
   The plaintiffs argue that on its face, the FAA violates
the Fourth Amendment, the First Amendment, and Ar-
                           80a

ticle III of the Constitution. The plaintiffs argue under
the Fourth Amendment that the FAA fails to protect the
privacy interest of Americans in the content of their
telephone calls and emails. They argue under the First
Amendment 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 judicial
review set forth in the FAA violates the principle of the
separation of powers by allowing the FISC to issue or-
ders approving the authorization of surveillance in the
absence of any case or controversy and by allowing for
the Government to continue surveillance while an appeal
to the FISC Court of Review is pending.
    In order to reach the merits of the plaintiffs’ consti-
tutional arguments, the Court must first determine
whether the plaintiffs have standing to bring this action.
See, e.g., Warth v. Seldin, 422 U.S. 490, 498 (1975) (“In
essence the question of standing is whether the litigant
is entitled to have the court decide the merits of the dis-
pute or of particular issues.”); Ontario Public Service
Employees Union Pension Trust Fund v. Nortel Net-
works Corp., 369 F.3d 27, 34 (2d Cir. 2004) (“In order for
our court to properly reach the merits of the case . . .
we must first find that the parties involved have met the
basic 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 WL
2269703, at *5 (E.D.N.Y. Sept. 30, 2004) (“Standing is a
jurisdictional prerequisite; accordingly, the Court must
initially determine whether [the plaintiff] has standing
to invoke the jurisdiction of the federal courts to deter-
mine the merits of the underlying disputes.”) (internal
citation and quotation marks omitted).
                           81a

    Article III of the Constitution limits the jurisdiction
of federal courts to “Cases” and “Controversies.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). To
satisfy the irreducible constitutional minimum of Article
III 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 the
injury and the defendant’s actions; and (3) it is likely
that 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 “exists
only to redress or otherwise protect against injury to
the complaining party,” a federal court’s jurisdiction
“can be invoked only when the plaintiff . . . has suf-
fered ‘some threatened or actual injury resulting from
the putatively illegal action. . . .’ ” Warth, 422 U.S. at
499 (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617
(1973)). The plaintiff must show a particularized injury
that affects the plaintiff in a personalized and individual
way. 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 of
federal-court jurisdiction and to justify exercise of
the court’s remedial powers on his behalf.” Warth, 422
U.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 prudential
limitations on the class of persons who may invoke the
federal judicial power. “[T]he Court has held that when
                           82a

the asserted grievance is a ‘generalized grievance’
shared in substantially equal measure by all or a large
class 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 generally
assert the plaintiff ’s own rights, and cannot rest on the
legal rights or interests of third parties. Id . This case
turns on whether the plaintiffs have met the irreducible
constitutional 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 two
independent bases for Article III standing to challenge
the constitutionality of the FAA. First, the plaintiffs
argue that they have standing on the basis of their fear
that their communications will be monitored under
the FAA because that fear is “actual and well-founded.”
Second, the plaintiffs argue that they have standing on
the basis of the costs they have incurred in taking mea-
sures to protect the confidentiality of their international
communications, in light of their fear of surveillance.
The Court addresses each proffered basis for standing
in turn.

                            A
    The plaintiffs argue that their fear of surveillance
under the FAA provides a basis for Article III standing
to challenge the constitutionality of that statute. They
seize upon case law indicating that in the context of a
pre-enforcement challenge to a statute on First Amend-
ment grounds, a plaintiff need only demonstrate “ ‘an
actual and well-founded fear that the law will be en-
forced against’ it” to satisfy the injury-in-fact require-
                                   83a

ment for Article III standing. Vt. Right to Life Comm.,
Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000) (quoting
Virginia 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 the
standard of showing an “actual and well-founded fear” of enforcement
is “slightly” easier to satisfy than the standard of showing a “realistic
danger” 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 determination
of standing with respect to all of their claims, rather than the First
Amendment claim alone, because the alleged conduct that is the source
of the injuries asserted under each constitutional claim—the potential
enforcement of the statute—implicates First Amendment rights. The
difference between the “actual and well-founded fear” standard and the
“realistic danger” standard has never been explained, and it should be
noted that there are some indications that there is no meaningful
difference between the two standards. See Brooklyn Legal Servs. Corp.
v. Legal Servs. Corp., 462 F.3d 219, 227 (2d Cir. 2006) (finding standing
for as-applied First Amendment challenge based on “actual and well-
founded fear” and “realistic danger”); cf. Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979) (invoking “realistic
danger” 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 assessed
under 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 challenged
statute accounts for all of the injuries asserted under each constitu-
tional claim; the parties agree that Article III standing should be
assessed under a single standard with respect to all of the plaintiffs’
claims; and separate standing analyses for each constitutional claim
would not affect the outcome of this case, the Court does not undertake
a separate standing analysis with respect to each alleged constitutional
                                  84a

urge that their fear of surveillance is “actual and well-
founded” because, according to the plaintiffs, “the FAA
authorizes 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 that
their communications will be monitored under the FAA
does not confer standing on the plaintiffs to challenge
the constitutionality of that statute. The Government
contends that standing to make a pre-enforcement chal-
lenge to a statute may only be found “where there is a
threat 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 to
challenge the constitutionality of the FAA on the basis
of their fear of surveillance. The plaintiffs can only dem-
onstrate an abstract fear that their communications will
be monitored under the FAA. The FAA creates a
framework 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 a
connection between the injuries they claim and the constitutional rights
being asserted”); United Presbyterian Church in the United States of
America v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) (Scalia, J.) (conduct-
ing collective standing analysis for First, Fourth, and Fifth Amendment
claims and separation of powers claims); cf. Friends of the Earth v.
Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185 (2000) (standing must be
demonstrated separately for injunctive relief and civil penalties because
these are different forms of relief ).
                            85a

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

                             1.

    Courts have explicitly rejected standing based on a
fear of surveillance in circumstances similar to those in
this case. In United Presbyterian Church in the United
States of America v. Reagan, 738 F.2d 1375 (D.C. Cir.
1984) (Scalia, J.), the Court of Appeals for the District of
Columbia Circuit denied standing to plaintiffs seeking to
challenge the constitutionality of Executive Order
No. 12333 (the “Executive Order”). The Executive Or-
der created a framework within which intelligence agen-
cies could apply to the Attorney General for approval to
collect, 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 of
information that could be collected and established limi-
tations on permissible collection techniques, including
electronic surveillance under certain circumstances.
                           86a

Executive Order No. 12333 at ¶¶ 2.3, 2.4, 2.5. The plain-
tiffs were political and religious organizations that the
Court assumed were more likely than the public at large
to be subject to surveillance under the Executive Order.
See United Presbyterian, 738 F.2d at 1380. The Court
rejected the plaintiffs’ attempt to rely upon the “threat”
of surveillance for standing to challenge the Executive
Order, explaining that “[t]he problem with [the plain-
tiffs’] attempt to rely upon this sort of harm to establish
standing in the present case is that they have not ade-
quately averred that any specific action is threatened or
even contemplated against them.” Id . The Court ob-
served that “[t]o give these plaintiffs standing on the
basis of threatened injury would be to acknowledge, for
example, that all churches would have standing to chal-
lenge a statute which provides that search warrants may
be sought for church property if there is reason to be-
lieve that felons have taken refuge there. That is not the
law.” 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 rejected
in United Presbyterian. As in United Presbyterian, the
plaintiffs in this case have not shown that any specific
action is threatened or even contemplated against them.
They have not shown or alleged that the Government
has sought or obtained approval from the FISC to au-
thorize surveillance of their communications. They have
not 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. But
absent any showing that such surveillance has been con-
                            87a

ducted, authorized or even contemplated, the plaintiffs’
fear is speculative.
   Moreover, the alleged injury in this case is even more
speculative than the injury asserted in United Presbyte-
rian because the FAA requires a court to approve the
application for surveillance, which includes making an
independent judgment with respect to whether the
guidelines proposed by the Executive Branch to circum-
scribe the requested surveillance comply with the
Fourth Amendment. The intervening role carved out for
the 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 by
the plaintiffs here were also rejected by the Court of
Appeals for the Sixth Circuit in ACLU v. NSA, 493 F.3d
644 (6th Cir. 2007). ACLU involved a challenge to the
constitutionality 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 with
respect to which one party was located outside the
United States and the NSA had a reasonable basis to
conclude that one party was connected to al Qaeda. See
ACLU, 493 F.3d at 648. The plaintiffs were journalists,
academics and lawyers who regularly communicated
with individuals located overseas whom they believed
the NSA suspected of being connected to al Qaeda and
whom they believed the NSA would therefore be likely
to 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 opinion
and the concurring opinion rejected the plaintiffs’ alle-
                                 88a

gation that they had standing on the basis of their fear
of surveillance pursuant to the TSP.13
    The lead opinion rejected this basis for standing on
the rationale that “it would be unprecedented for this
court to find standing for plaintiffs to litigate a Fourth
Amendment cause of action without any evidence that
the plaintiffs themselves have been subjected to an ille-
gal search or seizure.” Id . at 673-74 (Batchelder, J.).
The concurring opinion rejected standing on the
grounds that the plaintiffs had not shown that they were
“personally subject to” the warrantless surveillance pol-
icy. Id . at 691 (Gibbons, J., concurring). The concurring
opinion drew an implicit distinction between proof of
being subject to the surveillance policy and proof of hav-
ing been subjected to actual surveillance pursuant to
that policy. The former consisted of “evidence as to
whether, in the government’s view, there are reasonable
grounds 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 fatal
to the plaintiffs’ assertion of standing. Relying on
United Presbyterian, the concurring opinion distin-
guished cases involving “[a] genuine threat of enforce-
ment of a policy against a plaintiff who is demonstrably
subject to that policy,” which supports standing, from
cases “in which a plaintiff cannot establish that he is
subject to the policy but merely fears that he is subject
to 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 Fourth
Amendment claims in connection with the TSP. However, the lead
opinion denied the plaintiffs standing to bring any of their claims.
                            89a

standing.” Id . at 689 n.2 (Gibbons, J., concurring). The
plaintiffs could not demonstrate a genuine threat of sur-
veillance because they could not show that they were
subject to the challenged surveillance policy—that they
would be targeted by the policy. See id . at 691 (Gibbons,
J., concurring) (“There is no relevant factual difference
between the United Presbyterian Church plaintiffs,
whose activities the D.C. Circuit conceded made them
more 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 makes
them 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 ACLU
and United Presbyterian, have not made any showing
that they are subject to the surveillance policy they seek
to challenge. Without showing that they are subject to
the statute they seek to challenge, the plaintiffs’ fear
that they will suffer harm from that statute is specula-
tive and hypothetical.
   Indeed, the plaintiffs in this case are one step further
removed from the challenged surveillance policy than
were the plaintiffs in ACLU. The plaintiffs in ACLU
sought to challenge an actual program of surveillance
that had already been authorized by the President. See
ACLU, 493 F.3d at 648 n.1. The TSP was more than a
framework within which federal officials could apply for
authorization to engage in surveillance. The NSA was
already authorized to monitor communications with re-
spect to which one party was located outside the United
States and there was a reasonable basis to believe that
one party was connected to al Qaeda. As the concurring
opinion in ACLU explained, the plaintiffs in that case
                          90a

could not show that they were subject to that authoriza-
tion of surveillance because they could not show that
their 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 speculative
and hypothetical than the standing argument rejected
by 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 speculative
fear of harm asserted by the plaintiffs is sufficient to
support standing for a pre-enforcement challenge to a
statute.
                           2.

    At oral argument the plaintiffs sought to minimize
the 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 Court
reached the merits of challenges to laws or policies au-
thorizing drug or alcohol testing for specific classes of
persons, 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 like
Earls and Chandler and Skinner.”).) None of those
physical 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 persons
subject to a challenged policy of drug or alcohol testing
                           91a

and who faced a genuine threat of being tested pursuant
to that policy. In Board of Education of Independent
School District Number 92 of Pottawatomie County v.
Earls, 536 U.S. 822, 826 & n.1 (2002), the Supreme
Court found that a student plaintiff who participated in
competitive extracurricular activities at school had
standing to challenge a Board of Education policy re-
quiring all students participating in such activities to
consent to drug testing. It was indisputable in Earls
that the challenged policy required a student who partic-
ipated in such extracurricular activities, such as the
plaintiff, to take a drug test before participating in the
activity, and to submit to random drug testing while par-
ticipating in the activity at any time based on reasonable
suspicion. Earls, 536 U.S. at 826. Earls therefore has
no application to this case, where the plaintiffs are not
required to do anything or to submit to anything, and
where there is no showing that the Government has au-
thorized any action against the plaintiffs. See also
Chandler v. Miller, 520 U.S. 305, 308-09 (1997) (ruling
on merits, without discussing standing, where plaintiff
candidates for state offices challenged state law requir-
ing candidates for such offices to certify that they had
taken 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. Railway
Labor 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 alcohol
testing of railroad employees after certain accidents, in
the event of certain rule violations, or where a supervi-
sor had a reasonable suspicion based on personal obser-
                            92a

vation that an employee was under the influence of alco-
hol. Skinner provides little guidance for the standing
analysis in this case because standing was not contested
in that case. It was not discussed by the Supreme
Court, the issue was not briefed before the Court, and
the appellate court decision contained no discussion of
standing. 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 or
alcohol testing of a defined class of persons represented
by the plaintiff labor organizations, namely railroad em-
ployees. The plaintiffs were plainly subject to the chal-
lenged policy. By contrast, the FAA neither authorizes
surveillance nor identifies, on its face, a class of persons
to which the plaintiffs belong, and there is no allegation
or evidence of an order authorizing Government surveil-
lance that would encompass the plaintiffs’ communica-
tions. Thus the relation in which the railroad employees
stood to the challenged policy in Skinner is wholly un-
like the relation in which the plaintiffs in this case stand
to the FAA.
                             3.

    Thus the electronic surveillance cases undermine any
claim of standing in this case, and the drug or alcohol
testing cases on which the plaintiffs rely do not support
the plaintiffs’ claims of standing to challenge the FAA
based 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.
                           93a

. . . [I]t’s a completely artificial distinction between
surveillance cases [and] other contexts.”).) The plain-
tiffs claim that their position is supported by cases out-
side the surveillance context considering the issue of
standing to make a pre-enforcement challenge to a stat-
ute or regulation. They argue that under those cases
they have shown an “actual and well-founded fear of en-
forcement” of the FAA against them that is sufficient for
standing 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 in
those cases is fully consistent with the rejection of
standing 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 the
plaintiff is subject to that law or regulation and has a
well-founded fear that it will be so enforced. The plain-
tiffs in this case have made no showing that they are
subject to any specific law or regulation that they seek
to challenge. The FAA does not require that the plain-
tiffs do anything or refrain from doing anything such
that they might have a well-founded fear that the Gov-
ernment would take action against them for failing to
abide by the statute. Moreover, the FAA does not au-
thorize surveillance of the plaintiffs’ communications
and the plaintiffs have made no showing that the Gov-
ernment has sought any such surveillance pursuant to
the general framework set forth in the statute or that
such surveillance has been authorized. It is unnecessary
                           94a

to seek to define the outer limits of what it would take
for the plaintiffs to be subject to the FAA such that they
would have standing to challenge its constitutionality.
The plaintiffs’ failure to show that they are subject to
the FAA in any concrete way is sufficient to conclude
that the plaintiffs lack standing to challenge the FAA.
    Under the line of non-surveillance cases referred
to by the plaintiffs, “[a] plaintiff bringing a pre-
enforcement facial challenge against a statute need not
demonstrate to a certainty that it will be prosecuted
under the statute to show injury, but only that it has an
actual 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 to
couch 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 an
actual and well-founded fear of enforcement depends
upon a reasonable showing that the plaintiff is subject to
the challenged law or regulation. In the cases cited by
the plaintiffs involving pre-enforcement challenges to
non-surveillance statutes, the plaintiffs in those cases
were subject to a challenged statute or regulation such
that there would be consequences resulting from a fail-
ure to comply. Courts reasonably have allowed chal-
lenges to such legal proscriptions without requiring the
plaintiff to incur the penalties of non-compliance. Cf.
Babbitt v. United Farm Workers National Union, 442
U.S. 289, 302-03 (1979) (granting standing for pre-
enforcement challenge to certain provisions of statute
based on “realistic danger” of enforcement where plain-
tiffs intended to engage in conduct “arguably prohibited
by the statute”); Pacific Capital Bank, N.A. v. Connecti-
cut, 542 F.3d 341, 350 (2d Cir. 2008 (finding standing for
                             95a

pre-enforcement challenge by national bank to state
statute limiting certain interest rates where plaintiff
“reasonably interpreted [the statute’s] limitation as, on
its face, applying to [the plaintiff]”; Vt. Right to Life, 221
F.3d at 383 (finding standing for pre-enforcement chal-
lenge to statute proscribing range of activities relating
to campaign finance disclosure and reporting require-
ments where plaintiff ’s interpretation of proscription to
cover its activities was “reasonable,” and plain-
tiff ’s activities “could easily be construed” to fall with-
in the statute’s proscription); Nitke v. Gonzales, 413
F. Supp. 2d 262, 267 (S.D.N.Y. 2005) (per curiam) (“[T]o
show that a fear [of enforcement] is well-founded, the
plaintiff must show that it is reasonable. A fear that a
statute will be enforced against a plaintiff is reasonable
if the plaintiff ’s interpretation of the statute to reach his
or her conduct is itself reasonable.”) (internal citation
and quotation marks omitted).
    Every non-surveillance pre-enforcement challenge
case cited by the plaintiffs involved a law or regulation
that 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 statute
where “the law is aimed directly at plaintiffs, who, if
their interpretation of the statute is correct, will have
to take significant and costly compliance measures or
risk 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
                           96a

to minors where statute “reach[ed] material posted on
plaintiffs’ websites”); New Hampshire Right to Life Po-
litical Action Committee v. Gardner, 99 F.3d 8, 14 (1st
Cir. 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 citation
omitted); 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-enforcement
cases to apply to their challenge to the FAA even though
those cases do not arise in the context of electronic sur-
veillance or surveillance of any kind, and even though
the facts of those cases bear no resemblance to the
standing issues raised in the context of the FAA. A fun-
damental tenet of standing is that a plaintiff must show
that the plaintiff has suffered an actual or imminent in-
jury in fact, that is concrete and particularized, and not
conjectural or hypothetical. Lujan, 504 U.S. at 559. In
each of the pre-enforcement cases, the plaintiff or plain-
tiffs could point to a specific statute that reasonably
could be applied to them and which produced conse-
quences if they failed to comply. That provided concrete
and particularized injury.
    In this case, the plaintiffs have not made a reason-
able showing that they are subject to the challenged
statute in any way. The FAA does not require the plain-
tiffs to do anything or refrain from doing anything, and
does not authorize surveillance to which the plaintiffs
will be subject. The statute cannot reasonably be inter-
preted on its face to apply to the plaintiffs, because it
neither authorizes surveillance nor refers to a class of
                           97a

persons that on its face could reasonably be construed to
include the plaintiffs. Moreover, there is no allegation
or evidence that an order has been obtained pursuant to
the statute authorizing the surveillance of communica-
tions that could reasonably be construed to include the
plaintiffs’ communications. Therefore the plaintiffs can-
not establish standing on the basis of a well-founded fear
of enforcement. The plaintiffs have failed to show that
there is anything to enforce, because they have failed to
show that they are subject to the statute. The plaintiffs’
alleged fears of enforcement arising from the fact that
surveillance orders of unknown scope may eventually be
issued that may affect them bear no resemblance to the
fears of enforcement of specific statutes or regulations
that reasonably apply to complaining plaintiffs and that
have been found sufficient for purposes of standing.
   The Supreme Court’s decision in Babbitt, relied upon
by the plaintiffs, does not suggest otherwise. In Babbitt,
the plaintiffs, including a farmworkers’ union (the
“UFW”), challenged, in relevant part, five provisions of
a farm labor statute passed in Arizona. Babbitt, 442
U.S. at 292-93. The Court emphasized that “[a] plaintiff
who challenges a statute must demonstrate a realistic
danger of sustaining a direct injury as a result of the
statute’s operation or enforcement.” Id . at 298. The
Court held that the plaintiffs had standing to challenge
three of the five provisions of the statute but not the
remaining two. The first challenged provision regulated
the election of employee bargaining representatives,
specifying certain procedures for such elections. Id . at
292-94, 299. The Court found that the plaintiffs had
standing to challenge that provision, because “the UFW
has in the past sought to represent Arizona farmworkers
and has asserted in its complaint a desire to organize
                            98a

such workers and to represent them in collective bar-
gaining.” Id . at 300.
   The second challenged provision limited consumer
publicity and violations of the statute were criminally
punishable. Id . at 301-02. The Court found that the
plaintiffs had standing to challenge that provision be-
cause they intended to engage in consumer publicity and
erroneous 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 violating
any provision of the statute. Id . at 303. The Court
found that the plaintiffs had standing to challenge the
criminal 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 to
challenge provisions of a statute that could be construed
on their face to proscribe or regulate conduct in which
the plaintiffs wished to engage. The analysis in Babbitt
cannot be superimposed onto this case. The plaintiffs in
this case have not challenged a statute that regulates or
proscribes 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 the
issue of standing in this case, it is instructive for its re-
jection of the plaintiffs’ bid for standing to challenge one
of the remaining provisions of the statute. That provi-
sion provided that no employer was required to furnish
certain information to a labor organization to enable
that organization to communicate with employees of the
                                  99a

employer, members of the labor organization, its sup-
porters, or adherents (the “access provision”). Id . at
303-04. The UFW argued that it would seek access to
employers’ 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-justiciable
because the plaintiffs had not yet “assert[ed] an interest
in 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 that
access will be denied. More importantly, [plaintiffs’]
claim depends inextricably upon the attributes of the
situs involved.”).
    The plaintiffs’ challenge to the FAA is similarly non-
justiciable. The plaintiffs seek to challenge the FAA
without any showing that the FISC has approved sur-
veillance that could encompass their communications.
Thus the plaintiffs in this case lack a “palpable basis
for believing” that their communications will be sur-
veilled . In Babbitt it was “impossible to know whether
access will be denied to places fitting [plaintiffs’] consti-
tutional claim.” Id . The plaintiffs’ claim depended upon
the attributes of the situs to which they sought access,
and the plaintiffs had not asserted an interest in gaining
access to any particular situs. Like the plaintiffs in Bab-
bitt attempting to challenge the access provision, the
plaintiffs in this case have only a hypothetical fear of
being harmed by the statute that is insufficient to sup-
port standing.14

  14
    In Babbitt the Supreme Court also denied the plaintiffs standing to
challenge a compulsory arbitration provision in the statute. The Court
based its holding in part on the fact that the plaintiffs had “never con-
tested the constitutionality of the arbitration clause.” Id. at 305.
                           100a

    In sum, the plaintiffs’ assertion of standing to chal-
lenge the FAA on the basis of their fear of surveillance
finds 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 to
drug and alcohol testing or the pre-enforcement chal-
lenges to non-surveillance statutes and regulations on
which the plaintiffs rely. In none of those contexts do
the cases provide any support for the proposition that a
plaintiff may challenge a statute to which the plaintiff
cannot reasonably be considered subject. On its face the
FAA does not regulate or proscribe the plaintiffs’ con-
duct or authorize surveillance of a class of persons that
includes the plaintiffs. Moreover, the plaintiffs have
neither alleged nor shown that the Government has
sought or obtained an order from the FISC authorizing
surveillance that could reasonably be construed to en-
compass their communications. The plaintiffs’ alleged
fear of surveillance is insufficient to provide them with
standing to challenge the FAA.

                            B
    The plaintiffs purport not to rely solely upon their
fear of surveillance as a basis for standing to challenge
the 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 that
fear, to ensure the confidentiality of their international
communications. The plaintiffs argue that such costs
constitute “specific present objective harm[s]” suffered
as a result of the passage of the FAA and therefore
qualify as an injury in fact for purposes of standing. (Tr.
18.) The Government counters that any costs incurred
by the plaintiffs have resulted not from the challenged
                           101a

statute itself but from the alleged subjective chilling
effect the statute has had on the plaintiffs’ communica-
tions. The Government urges that the assertion of
standing on the basis of a “subjective chill” of this kind
is foreclosed by Supreme Court precedent.
    The costs the plaintiffs have incurred in an effort to
protect the confidentiality of their international commu-
nications fail to provide a basis for standing to challenge
the constitutionality of the FAA. This second basis for
standing is not truly independent of the first basis; the
costs incurred by the plaintiffs flow directly from the
plaintiffs’ fear of surveillance. To allow the plaintiffs to
bring this action on the basis of such costs would essen-
tially be to accept a repackaged version of the first failed
basis for standing. The plaintiffs cannot manufacture a
sufficient basis for standing from an insufficient one.
    The plaintiffs argue that their fear of surveillance
has chilled their normal exchange of international com-
munications and thereby forced them to incur certain
costs to protect the confidentiality of those communica-
tions by carrying them out through alternative means.
But because the plaintiffs have failed to show that they
are subject to the FAA and that they face a threat of
harm from its enforcement, the chilling of their speech
that they attribute to the statute is actually the result of
their purely subjective fear of surveillance. The Su-
preme Court has held that a subjective chill of this kind
is insufficient to support standing. In Laird v. Tatum,
408 U.S. 1, 6 (1972), the Supreme Court considered a
First Amendment challenge to an Army surveillance
program that entailed “the collection of information
about public activities that were thought to have at least
some potential for civil disorder,” and the dissemination
                            102a

and storage of such information within the Army. The
plaintiffs argued that they had standing to challenge the
program because the existence of the program chilled
the exercise of their First Amendment rights. The
Court rejected the argument that a plaintiff “who al-
leges that the exercise of his First Amendment rights is
being chilled by the mere existence, without more, of a
governmental 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 connect
the existence of the surveillance program to their own
speech, 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 future
harm; the federal courts established pursuant to Article
III 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 standing
to challenge Government conduct that allegedly violated
the 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 was
either 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 case
allege that their communications are chilled by the sheer
existence of the challenged policy without connecting the
policy to their own speech. Therefore the analysis of the
plaintiffs’ second purported basis for standing in this
case is controlled by Laird . In Laird “the chilling effect
alleged . . . was so remote and speculative that there
was no justiciable case or controversy and therefore the
                            103a

federal courts lacked jurisdiction under Article III of
the Constitution.” Davis v. Vill. Park II Realty Co., 578
F.2d 461, 463 (2d Cir. 1978) (finding standing for First
Amendment claim alleging that threat of eviction, mani-
fested in attempt by defendant management company to
terminate 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 have
failed to make any showing that they are subject to the
FAA.
    The plaintiffs insist that the Supreme Court’s dis-
tinction in Laird between the challenged policy in that
case and challenged exercises of Government power in
previous cases that were “regulatory, proscriptive, or
compulsory in nature” was only a distinction and not a
prospective rule that plaintiffs may only challenge Gov-
ernment policies that are regulatory, proscriptive, or
compulsory. See Socialist Workers Party v. Attorney
General 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 distinguishing
earlier cases, not setting out a rule for determining
whether an action is justiciable or not.”); ACLU, 493
F.3d at 693 n.3 (Gibbons, J., concurring) (“The language
in Laird about regulation, proscription, and compulsion
to me seems merely descriptive of the facts in prior
cases in which the Supreme Court had found standing.”);
but see ACLU, 493 F.3d at 661 (Batchelder, J.) (“[T]o
allege a sufficient injury under the First Amendment, a
plaintiff must establish that he or she is regulated, con-
strained, or compelled directly by the government’s ac-
tions. . . .”).
                           104a

    It is unnecessary to decide whether an argument for
standing based on a chill of expressive activity should be
limited to cases in which the plaintiff is complaining
about a statute or regulation that is “regulatory, pro-
scriptive, or compulsory in nature” or whether a plaintiff
can allege such a chill based on a statute or regulation to
which the plaintiff is otherwise subject. The plaintiffs in
this case have failed to show that they are subject to the
statute other than by speculation and conjecture, which
is insufficient for standing. The plaintiffs in this case
have made no showing that they are subject to the stat-
ute they seek to challenge, and therefore have made no
showing that they face a danger of being harmed as a
result 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 from
the challenged statute, because that danger is the source
of the chill. See Laird, 408 U.S. at 12-13 (“[G]overnmen-
tal action may be subject to constitutional challenge
even though it has only an indirect effect on the exercise
of First Amendment rights. At the same time, however
. . . to entitle a private individual to invoke the judicial
power 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 the
result of that action.”) (internal quotation marks and
ellipsis 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 or
a threat of future harm; the federal courts established
pursuant to Article III of the Constitution do not render
advisory opinions.” Id . at 13-14 (internal quotation
marks omitted).
                           105a

    A plaintiff ’s claim that a Government policy chills the
plaintiff ’s expressive activity is not an independent
basis to challenge the policy. The alleged chill must be
grounded in a threat of harm from the policy to which
the plaintiff can reasonably argue he is subject; other-
wise the chill is plainly subjective. Cf. Davis, 578 F.2d
at 463 (chilling effect grounded in threat of eviction). A
chilling effect can only be a product of a threat of direct
harm, not a “substitute” for such a threat. Laird, 408
U.S. at 14.
    The plaintiffs argue that the chilling effect the FAA
has had on their speech cannot be considered subjective
because they have incurred real, objective costs to avoid
surveillance. 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 a
plaintiff cannot establish standing by “alleg[ing] that the
exercise of his First Amendment rights is being chilled
by the mere existence, without more, of a governmental
investigative and data-gathering activity. . . .” Id . at
10. What made the chilling effect subjective in Laird
was the plaintiffs’ failure to show that they were subject
to the challenged policy and faced a threat of harm from
it. The plaintiffs could only show that the surveillance
policy existed. The plaintiffs’ failure to substantiate the
alleged chill with proof that they really were subject to
the information gathering policy made their alleged chill
“subjective.” See Ozonoff v. Berzak, 744 F.2d 224, 229
(1st Cir. 1984) (Breyer, J.) (interpreting phrase “without
more” in Laird to mean that “[t]he plaintiffs in Laird
did not claim that the information gathering activities
were directed against them specifically or that the gath-
ered data could be directly used against them in any
foreseeable way”). All of the plaintiffs’ alleged “objec-
                           106a

tive” expenditures are insufficient to establish standing
because 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 directed
at them.
    The Court of Appeals for the District of Columbia
Circuit relied upon Laird in rejecting the allegation of
a chilling effect as a basis for standing in United Presby-
terian. The United Presbyterian Court denied standing
to certain political and religious organizations to chal-
lenge an Executive Order that provided a framework for
agencies within the intelligence community to seek and
obtain approval from the Attorney General for certain
kinds of surveillance. One of the bases for standing that
was proffered by the plaintiffs and rejected by the Court
was the assertion that their expressive activities were
chilled by the fear that their communications would be
surveilled under the Executive Order. See United Pres-
byterian, 738 F.2d at 1378. In rejecting this basis for
standing, the Court explained that “[a]ll of the Supreme
Court cases employing the concept of the ‘chilling effect’
involve situations in which the plaintiff has unquestion-
ably suffered some concrete harm (past or immediately
threatened) apart from the ‘chill’ itself.” Id . In United
Presbyterian the plaintiffs could not point to any such
concrete harm because they could not show that “any
specific action [was] threatened or even contemplated
against them” with respect to the Executive Order.
Id. at 1380.
   The same analysis applies in this case. The plaintiffs
have not shown that any specific action is threatened or
contemplated against them because they have not shown
that they are subject to the FAA. Therefore they have
                           107a

failed to allege a concrete harm “apart from” the chilling
effect on their international communications, and the
chilling effect is their subjective fear of being surveilled
which is insufficient in the absence of evidence that they
are 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 with
assertion of standing based on “well-founded fear” of
surveillance 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 effect
such statutes or policies had on a plaintiff ’s expressive
conduct. But in each of those cases, the plaintiff was sub-
ject to the challenged policy and faced potential harm
from the enforcement of the policy. In Meese v. Keene,
481 U.S. 465, 467 (1987), the plaintiff alleged that he was
chilled from exhibiting three films because under the
challenged statute they would be labeled “political pro-
paganda,” thereby injuring his reputation. Crucially,
there was no question in Meese that the statute applied
to the films the plaintiff wished to exhibit. See Meese,
481 U.S. at 467 n.1. That fact distinguishes Meese from
this case. In holding that the plaintiff had standing in
Meese, the Supreme Court emphasized that the plaintiff
had shown that he faced a threat of harm from the stat-
ute if he chose to exhibit the films. See id . at 473 (“We
find, however, that [the plaintiff] has alleged and demon-
strated more than a ‘subjective chill’; he establishes that
the term ‘political propaganda’ threatens to cause him
cognizable injury.”). The Court explained that under
                          108a

Laird, if the plaintiff could not show that the label of
“political propaganda” would be harmful to him, he
would not have standing to challenge the statute. See
id . The plaintiff plainly could not have shown that the
label would be harmful to him without showing that his
films would be subject to the label. The finding that the
plaintiff ’s films were subject to the challenged statute
was a predicate to the finding of standing in Meese for
which there is no corollary in this case.
    The plaintiffs fare no better in their reliance on
Ozonoff. In Ozonoff, the Court of Appeals for the First
Circuit found standing to challenge an Executive Order
based on the chilling effect it would exert on the
plaintiff ’s expressive activity. See Ozonoff, 744 F.2d at
228. 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 “would
like to work” for the WHO, and thus there was no ques-
tion that he was subject to the policy of loyalty checks
and the potential harm of being denied a job with the
WHO on account of being found disloyal if the policy
were enforced . Id . The Court found standing based on
the plaintiff ’s assertion that he planned to apply for a
job with the WHO and the challenged policy chilled his
expressive conduct by discouraging activity that might
be considered disloyal. See id . at 228-29. The Court
explained that the relevant inquiry was “whether the
Order reasonably leads [the plaintiff] to believe he must
conform his conduct to its standards.” Id . at 229-30. In
distinguishing the case from Laird, the Court made
clear that the reasonableness of that belief depended on
the plaintiff being subject to the challenged policy: “The
plaintiffs in Laird did not claim that the information
                                 109a

gathering activities were directed against them specifi-
cally or that the gathered data could be directly used
against them in any foreseeable way.” Id . at 229 (em-
phasis in original).
    The plaintiffs in this case have not shown that the
challenged statute is directed against them. The chilling
effect in Ozonoff was the result of the plaintiff ’s fear of
harm from the enforcement of a policy to which he was
subject. Because that much has not been shown in this
case, the alleged chill of the plaintiffs’ speech in this case
is not analogous to the chill of the plaintiff ’s speech in
Ozonoff. Cf. also Socialist Workers Party, 419 U.S. at
1315 (Marshall, J., sitting as Circuit Justice) (granting
standing to challenge prospective surveillance of con-
vention where plaintiffs “apparently learned that the
FBI planned to monitor the . . . convention”).
    The plaintiffs claim to find support for their asser-
tion of standing based on the chilling of their speech in
Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167 (2000). In Laidlaw,
the Supreme Court found that environmental groups
whose members, among other things, wished to use and
enjoy a river into which the defendant was dumping pol-
lutants, had standing to sue the defendant.15 See
Laidlaw, 528 U.S. at 181-82. The Court found that the
plaintiffs had demonstrated injury in fact based on the
evidence that members of the plaintiff environmental
groups 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 property
value was allegedly diminished by the pollution of the river and another
who would like to purchase a home near the river but did not intend to
do so because of the pollution. See id . at 182.
                                 110a

that their own reluctance to engage in international
communications is analogous to the reluctance of the
Laidlaw plaintiffs to use the river. They extrapolate
from that analogy that they have standing to challenge
the FAA.
    The plaintiffs’ reliance on Laidlaw is plainly mis-
placed. Laidlaw did not concern an alleged chill of First
Amendment activity, making any comparison between
the plaintiffs’ second purported basis for standing in this
case and the plaintiffs’ basis for standing in Laidlaw
strained at best. In any event, Laidlaw does not help
the plaintiffs. In Laidlaw the members of the plaintiff
organizations had allegedly ceased to use the river be-
cause of the concrete harm caused by the defendant’s
discharge of pollutants into the river. The discharge of
pollutants was already occurring and there was no ques-
tion that the plaintiffs were affected by the discharge
because they ceased to use the river as a result of the
defendant’s activity that allegedly harmed the river in
which 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’s
undisputed conduct—conduct that would also undisput-
ably affect plaintiffs personally if they undertook their
desired 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 the
FAA is an abstract and hypothetical one, for all of the

  16
     Judge Gibbons explained: “I read Laidlaw to require that plaintiffs
demonstrate 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 harm
from that conduct.” ACLU, 493 F.3d at 689 (Gibbons, J., concurring).
                          111a

reasons explained above. Thus the reasoning behind the
finding of standing in Laidlaw does not support the
plaintiffs’ 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 in
SCRAP did not concern any sort of deterrence or dis-
couragement of the plaintiffs’ behavior.
     SCRAP concerned a challenge by environmental
groups, among others, to a decision by the Interstate
Commerce Commission (the “Commission”) allowing
railroads to collect a 2.5% percent surcharge on freight
rates. SCRAP, 412 U.S. at 678. The plaintiff groups
argued that the surcharge would harm them by making
the use of recycled goods more expensive, thereby im-
pacting forests and other natural environments that
members of the plaintiff groups used and intended to
use. See id . at 684-85. The Court acknowledged skepti-
cism with respect to whether the plaintiffs would be able
to prove that the surcharge would harm the areas of the
environment in which the plaintiffs had an interest. See
id . at 688 (referring to chain of causation as “attenu-
ated”). Nevertheless, the Court found standing because
the plaintiffs’ allegations, “if proved, would place them
squarely among those persons injured in fact by the
Commission’s action[.]” Id . at 690. The standing issue
in SCRAP arose on a motion to dismiss based on the
pleadings, and therefore the Court’s doubts as to
whether the plaintiffs would be able to prove that the
surcharge would cause them harm did not bear on the
standing analysis. See id . at 683-84.
                           112a

    It is difficult to understand how the plaintiffs can
find any analogy between the standing analysis in
SCRAP and their effort to allege standing in this case.
In SCRAP, the conduct challenged by the plaintiffs was
the Commission’s authorization of the railroads to col-
lect a surcharge that the plaintiffs alleged would injure
them. The collection of the surcharge had already been
authorized 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 the
plaintiffs’ fear of harm from the surcharge in SCRAP.
The plaintiffs in this case have neither alleged nor
shown that surveillance encompassing their communica-
tions has been authorized or even that such authoriza-
tion has been sought by the Government. Neither in
SCRAP nor in any case cited by the plaintiffs has any
court 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 the
failure of the first. Therefore the costs incurred by the
plaintiffs in seeking to protect their international com-
munications from surveillance under the FAA do not
constitute a basis for standing for the plaintiffs’ consti-
tutional challenge to that statute.
                    CONCLUSION
   For all of the foregoing reasons, the plaintiffs lack
Article III standing to bring this constitutional chal-
lenge to the FAA. The plaintiffs’ motion for summary
judgment is denied. The Government’s motion for sum-
mary judgment is granted. The Clerk is directed to
                        113a

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

SO ORDERED.
                          114a

                     APPENDIX C

       UNITED STATES COURT OF APPEALS
           FOR 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, and
there 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 DENNIS
J ACOBS, Chief Judge, JOSÉ A. CABRANES, RICHARD C.
WESLEY, and DEBRA ANN LIVINGSTON, Circuit Judges,
dissents by opinion from the denial of rehearing in banc.
                         115a

    DEBRA ANN LIVINGSTON, Circuit Judge, joined by
DENNIS JACOBS, Chief Judge, JOSÉ A. CABRANES,
REENA RAGGI, and RICHARD C. WESLEY, Circuit
Judges, dissents by opinion from the denial of rehearing
in banc.
   DENNIS JACOBS, Chief Judge, dissents by opinion
from the denial of rehearing in banc.
   PETER W. HALL, Circuit Judge, dissents by opinion
from the denial of rehearing in banc.
   FOR THE COURT:
             /s/   CATHERINE O’HAGAN WOLFE
                   CATHERINE O’HAGAN WOLFE
                   Clerk
                               116a

GERARD E. LYNCH, Circuit Judge, concurring in the
denial of rehearing en banc:
   While I usually consider opinions concurring in a
denial of en banc review unnecessary, I write briefly in
response to my colleagues’ dissents from denial of re-
hearing en banc because, in the absence of any panel
dissent, some of their criticisms have not previously
been aired. For the most part, the panel opinion speaks
for itself; answers to nearly all of the dissents’ points
can be found there. See Amnesty Int’l USA v. Clapper,
638 F.3d 118 (2d Cir. 2011). Nevertheless, I take this
opportunity to respond directly to a few points.1
    As an initial matter, I agree with the dissenters that
this 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 with
opinions from other circuits (although, as discussed be-
low, those cases are largely distinguishable from this
one). But I dispute the dissenters’ assertions that Am-
nesty somehow distorts the law of standing or, in Judge
Livingston’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. Dissenting
from Denial of Reh’g En Banc (“Raggi, J., Op.”), post at
[3]. Standing cases are inherently fact specific, and the
panel 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 members
of the panel that heard the appeal—are not eligible to participate in
deciding whether to grant a petition for rehearing en banc.
                                   117a

low, Amnesty fully coheres with established standing
doctrine and does not represent a departure from our
controlling precedents.
I. Summary Judgment Standard
    A theme that runs through all of the dissents is that
the panel should have treated the plaintiffs’ averments
more skeptically. One dissent, for example, criticizes us
for our overly “credulous[]” and insufficiently skeptical
reading of the record. See Jacobs, C.J., Op. Dissenting
from Denial of Reh’g En Banc (“Jacobs, C.J., Op.”), post
at [3]; see also Raggi, J., Op., post at [22-25]. But any
“credul[ity]” displayed by the opinion reflects not any
naïveté on the part of the panel, but the requirements of
the procedural posture of the case. The case came to us
on summary judgment, and the government expressly
chose to accept the plaintiffs’ allegations as true for pur-
poses of the standing motion.2 Thus, the panel opinion
reviews the record as we are required to review it: ac-
cepting the plaintiffs’ allegations as true, drawing all
reasonable factual inferences in their favor, and viewing
their factual assertions in the light most favorable to
them. 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 any
evidence of its own either in opposition to the plaintiff ’s submissions, or
in support of its own summary judgment motion. Additionally, at oral
argument on the summary judgment motions, the government said it
accepted the factual submissions of the plaintiffs as true for purposes
of those motions.”); id . at 141 (“The plaintiffs have . . . testfi[fied] that
they have altered their conduct and thereby incurred specific costs in
response to the FAA. As discussed above, we must accept that undis-
puted testimony . . . .”); see also Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992) (on summary judgment, evidence to support stand-
ing “will be taken to be true”).
                           118a

does not justify a grant of summary judgment. See
Arnstein v. Porter, 154 F.2d 464, 469 (2d Cir. 1946) (cita-
tion omitted).
    Judge Raggi points out, correctly, that where the
court’s subject matter jurisdiction is at issue, as in the
case of constitutional standing, courts have an “ ‘inde-
pendent obligation’ ” to question even undisputed facts,
necessary to the court’s jurisdiction, that are asserted
by 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 court
by stipulating to facts that are false. But this is hardly
an example of collusive stipulation to facts that, as Chief
Judge 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 their
reasons for believing that their communications are
likely 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 in
order to obtain a decision on the merits by creating an
illusion of jurisdiction on the part of the court. The
court’s obligation to question assertions of fact does not
extend permission for judges to substitute their own
beliefs—derived from their own notions about what is
and is not likely to be true—about the truth of the sort
of ordinary factual matters that are eminently determi-
nable by the usual factfinding processes of the court, but
that the moving party (and especially the government,
                           119a

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 the
panel could assess standing. There is precedent for de-
clining to rule on standing and remanding the issue to
the district court. See, e.g., Fund for Animals v. Bab-
bitt, 89 F.3d 128, 134 (2d Cir. 1996). But in that case, the
issue of standing “was neither ruled on by the district
court 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 panel
fully satisfied its “independent obligation” to assess the
plaintiffs’ standing.
II. The Statute
    The dissenters go to great lengths to downplay the
significance of the changes contained in the FISA
Amendments Act (“FAA”), and to suggest that the panel
somehow 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 indisputably
and significantly broadens the risk of interception, low-
ers the government’s probable-cause burden, and de-
creases the oversight role of the Foreign Intelligence
Surveillance Court (“FISC”). Prior to the FAA, the gov-
ernment was required to identify its specific surveillance
targets to the FISC. The FISC would issue a warrant
only if it found there was probable cause that the target
was a foreign power or an agent of a foreign power, and
that the target was using or about to use the facility to
be monitored. In other words, the FISC had to find
probable cause for each specific search, and maintained
                          120a

a continuing oversight role after each probable-cause
determination. 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 find
that the government’s general procedures comply with
the statute’s subsections and with the Fourth Amend-
ment; the probable-cause determinations are no longer
particularized. The Attorney General no longer needs
to identify specific surveillance targets to the FISC. See
50 U.S.C. § 1881a(g)(4). The FAA requires him (and the
Director of National Intelligence) only to provide “writ-
ten certification” that targets are outside the United
States. 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 believed
to be located outside the United States,” and (ii) “pre-
vent the intentional acquisition of any communication as
to which the sender and all intended recipients are
known at the time of the acquisition to be located in the
United States.” Id. § 1881a(i)(2)(B). The FISC no lon-
ger considers individual surveillance applications, but
rather is charged only with overseeing whether the
agency has complied with FISA’s general procedural
requirements. Id. § 1881a(i)(2), (3)(A). The dissents
make much of the FAA’s requirement that the FISC
determine whether the government’s procedures comply
with the Fourth Amendment, but, again, under the FAA
that analysis is limited to the government’s general pro-
cedures. Unlike the prior FISA regime, the FISC plays
                                  121a

no role in reviewing the basis for any particular surveil-
lance undertaken by the government.3
   Additionally, as the opinion explains, “[u]nder the
FAA, in contrast to the preexisting FISA scheme, the
FISC may not monitor compliance with the targeting
and minimization procedures on an ongoing basis. In-
stead, that duty falls to the AG and [Director of National
Intelligence], who must submit their assessments to
the 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 differs
significantly from the previous version of FISA. In its
petition for rehearing en banc, the government notes,
for example, that “[u]nlike traditional FISA surveil-
lance, Section 702 does not require the Government to
establish individualized probable cause or to identify the
specific facilities at which the acquisition will take
place.” Pet. for Reh’g 4. Indeed, Congress presumably
would not have bothered to amend FISA if the new ver-
sion of the statute were not appreciably different from
the old. And as the opinion makes clear, proponents of
the statute argued that it was necessary precisely be-
cause it made possible expanded surveillance that would
not 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 review
is constitutionally required. That is one of the issues to be addressed
on 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.
                                 122a

Rec. S6178-79 (daily ed. June 26, 2008) (statement of
Sen. Graham). Nor did the government ever “identify
what is wrong with the plaintiffs’ interpretation [of the
FAA], or what a more appropriate interpretation would
be. 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.3d
at 128 n.8.4 At no point has the government explained
why the plaintiffs’ or the panel’s characterization of the
FAA is inaccurate.
III. Standing
   Turning to the standing analysis, it is common
ground that standing requires injury in fact, causation,
and redressability. The dissents seem to suggest that
the opinion somehow muddles these well-established
requirements, 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 fact
by “alleg[ing] . . . the expenditure of funds.” Id. at
133. 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 the
FAA, “an acquisition order could seek, for example, ‘ [a]ll telephone and
e-mail communications to and from countries of foreign policy interest
—for example, Russia, Venezuela, or Israel—including communications
made to and from U.S. citizens and residents.’ Moreover, the specific
showing of probable cause previously required, and the requirement of
judicial review of that showing, have been eliminated. The government
has not directly challenged this characterization.” Amnesty, 638 F.3d
at 126.
                                123a

The plaintiffs satisfied the causation requirement be-
cause “the professional and economic harms [they] suf-
fered . . . were fairly traceable to the FAA.” Id. at
134. And they demonstrated redressability because the
discrete injury of which they complained—the increased
likelihood of interception specifically caused by the
FAA—would be relieved by a decision in their favor.
See id . at 140 n.24.
    The dissents also seem to misunderstand our injury
analysis. The opinion addresses two different theories
of 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, as
one dissent contends, “[t]he panel opinion bases its find-
ing of injury and causation entirely on the ethical duties
of 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 in
detail in the opinion, concerned journalists as well as
lawyers, 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 in
sensitive and sometimes privileged telephone and e-mail communica-
                                  124a

panel concluded that a lawyer’s ethical duties and a jour-
nalist’s prudent exercise of her role brought us to the
same conclusion—that is, all of the plaintiffs reasonably
incurred professional and economic costs in order to
protect 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 Naomi
Klein . . . communicates with sources abroad, including Mexican indi-
viduals regarding military activity in Chiapas, Argentinian advocates
for indigenous rights, and indigenous Colombian groups who oppose
U.S. trade policies. Likewise, journalist Chris Hedges, whose writing
focuses on American and Middle Eastern politics and society, maintains
regular contact with academics, journalists, politicians, and activists in
places such as Iran, Syria, Libya, Kosovo, Bosnia, and Sudan. He also
communicates with political activists and civil society leaders in Pales-
tine, whom he believes are ‘of interest’ to the U.S. government.”); id. at
143 (“[T]he various groups of plaintiffs—attorneys, journalists, and
human rights, labor, legal, and media organizations—have established
that 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 being
monitored under the challenged statute . . . .”).
   6
     Judge Livingston argues that these plaintiffs have suffered no
actual 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 have
sworn that they have suffered harm, in that it has become more difficult
and expensive to practice their professions as a result of the enactment
of the FAA, and the government has chosen not to contest that evi-
dence. The dissenters’ argument is not that these costs have not been
imposed upon the plaintiffs, but that the courts should not recognize
this kind of harm as conferring standing. That argument is not unrea-
sonable; the question is a close one. But it should not be pretended that
these harms do not exist, or that the requirement that only persons
                                   125a

    Next, one of the dissents submits that “any burden
imposed 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, the
FAA significantly broadens the risk of interception be-
yond that which existed under the previous version of
FISA. 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 the
FAA has affected them.” Amnesty, 638 F.3d at 129.7

with a concrete stake in the matter may seek judicial relief is violated
in some unquestionable way when persons whose lives and occupations
have 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 must
stand or fall on the strength of the proffered reasons why such harm
does 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 simply
folks 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 them
in a way that gives them a concrete stake in the controversy, and thus
a right to present their arguments (persuasive or otherwise) that the
statute infringes rights conferred on them by the Constitution.
   7
     See also Amnesty, 638 F.3d at 129 n.13 (“At oral argument on this
appeal, the government professed itself ‘puzzled’ as to why the plaintiffs
had not been just as nervous about being monitored before the FAA
was enacted as they are now. To the extent that that statement ques-
tioned whether the plaintiffs genuinely fear being monitored after the
FAA’s enactment more than they did before it, the government cannot
raise that challenge on appeal. . . . The time to challenge the accuracy
of the plaintiffs’ assertions in their declarations has passed. The gov-
                                 126a

    The dissents further contend that the plaintiffs lack
standing 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 were
more likely to be monitored under the FAA than under
the previous version of FISA. In their Local Rule 56.1
Statement—which, I repeat at risk of redundancy, the
government declined to dispute—the plaintiffs said that
“the threat of surveillance under the new law has a much
greater 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 that
the relief they seek would redress their asserted injuries
in fact, because their injuries stem from their reasonable
fear of being monitored by FAA-authorized government
surveillance, and if a court grants their requested re-
lief—an injunction prohibiting the government from
conducting surveillance under the FAA—the feared sur-
veillance would no longer be permitted and therefore
would, presumably, no longer be carried out.” Id. at 140
n.24.8

ernment could have filed its own evidence, or sought an evidentiary
hearing on the accuracy of the plaintiffs’ claims, but it did neither.”).
   8
     Judge Raggi appears to question whether plaintiffs can assert a
Fourth Amendment right not to be surveilled, given that any surveil-
lance authorized by the FAA would not have targeted them, rendering
them mere “coincidental interceptees.” Post at [11-12]. This seems to
be a question about the merits of the plaintiffs’ claims, rather than
about their standing to make them. Plaintiffs claim that they have a
right not to have their conversations intercepted by surveillance that is
not based on specifically targeted probable cause. The merits of this
claim, especially given the urgent justifications for the surveillance
likely to be asserted by the government, may well be questionable. But
                                  127a

    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 in
their favor would prevent all possible interception, or
that they would not suffer injuries under the pre-FAA
version 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 need
not show that a favorable decision will relieve his every
injury.” Larson v. Valente, 456 U.S. 228, 244 n.15
(1982). Where a challenged action increases an already
extant risk of harm to a plaintiff, the elimination of that
action would redress the harm it causes—even if it does
not eliminate the preexisting risk. Massachusetts v.
EPA, 549 U.S. 497, 525-26 (2007).
    The dissents also make much of the timing of the
plaintiffs’ challenge, pointing out that the plaintiffs filed
their 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 the
plaintiffs could have suffered actual injury as a result of
the 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 Fourth
Amendment interest is unpersuasive. White rejected a Fourth Amend-
ment claim by a person who voluntarily confided in an acquaintance who
voluntarily 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-United
States persons abroad, have no right to contest electronic surveillance
of their conversations entailed that no American who was overheard
could 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.
                                  128a

Indeed, there would seem to be no difference between
the “reasonable likelihood” that the plaintiffs will be
surveilled under the FAA on day one of the FAA’s effect
and the likelihood that they will be surveilled on any
other day in the future.
    Finally, the dissents repeatedly characterize as
“speculative” the plaintiffs’ assertion that their overseas
contacts are likely to be government targets under the
FAA. This characterization is hard to take seriously.
As the opinion explains, the plaintiffs’ overseas contacts
include, for example, alleged Al Qaeda members (and
Guantanamo detainees) Khalid Sheik Mohammed and
Mohammedou 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 judgment
purposes, and never submitted evidence of its own. The
plaintiffs 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” about
whether 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 is
palpable. 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” centered
on 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 specificity
demanded by Judge Raggi that their conversations have been over-
heard as a result of FAA surveillance orders. But on the assumptions
that Judge Raggi makes—which seem to me unquestionably correct—
                                  129a

plaintiffs here, in short, have incurred present, concrete
costs, because their fear of being subjected to surveil-
lance is reasonable.10
IV.   Circuit Split
    Judge Raggi contends that the panel opinion creates
a circuit split concerning the standards for “evaluating
standing to challenge foreign intelligence surveillance
programs.” Raggi, J., Op., post at [3]; see also id. at [27-
30]. While I concede that Amnesty is in some tension
with United Presbyterian Church v. Reagan, 738 F.2d
1375 (D.C. Cir. 1984), and ACLU v. NSA, 493 F.3d 644
(6th Cir. 2007)—the two principal cases with which the
dissenters argue that Amnesty creates a circuit con-
flict—Amnesty is nevertheless distinguishable in several
ways from those cases. I will describe a few points of
distinction here; the panel opinion itself provides a fuller
discussion. See Amnesty, 638 F.3d at 148-49.
   United Presbyterian Church concerned a “general-
ized challenge” to “the constitutionality of the entire
national intelligence-gathering system,” 738 F.2d at
1381 (internal quotation marks omitted), whereas the
present case involves a specific challenge to a specific
statute. Furthermore, the D.C. Circuit found that the
plaintiffs’ injuries were not concrete, but amounted to

the plaintiffs have every reason to believe that such interceptions will
occur, and to take costly and burdensome steps in the present if they
wish 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 given
himself standing by choosing to move out of the city, precisely because
he did not have any reasonable expectation that he would be subjected
to chokehold tactics in the future.
                           130a

little more than a subjective “chilling effect.” Id. at
1378-80. In the present case, by contrast, the plaintiffs
have attested that they suffered concrete harms—in-
cluding the expenditure of funds—and the government
has not offered contrary evidence.
    ACLU v. NSA is similarly distinguishable, as it in-
volved a challenge not to specific legislation, but rather
to the National Security Agency’s warrantless wiretap
program, which targeted individuals the government
believed to be associated with Al Qaeda. 493 F.3d at
648. 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 that
under such a “dragnet,” their communications “are far
more likely to be acquired . . . than under a program
of individualized surveillance that focuses solely on the
communications of terrorism suspects,” and that drag-
net surveillance poses “far graver” consequences to
them than the warrantless wiretapping posed to the
plaintiffs in ACLU v. NSA. Id. Additionally, in that
case, the government argued that it would not be able to
address the question of standing without disclosing state
secrets. 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 that
their communications are likely to be acquired under the
statute.” Appellants’ Br. 49.
    The dissents also insist that the panel opinion defies
Supreme 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”);
                           131a

Livingston, J., Op., post at [1] (“in frank disregard of
clear Supreme Court authority”). The panel opinion
articulates its reasoning in great detail and explains why
our holding comports with relevant Supreme Court and
Second Circuit precedent. See Amnesty, 638 F.3d at
131-49. I will therefore let those portions of the opinion
speak for themselves.
                          * * *
    The critical inquiry for standing is whether the plain-
tiffs are simply citizens with an abstract claim that some
action was unlawful, or whether they, in some particular
respect not shared by every person who dislikes the ac-
tion, are injured by that action. Here, the plaintiffs have
shown that the very existence of an expanded authority
for the government to monitor electronic communica-
tions with foreigners leads them reasonably to fear that
their communications will be intercepted, and that this
fear inhibits their lawful activities and requires them to
take 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. Nor
does the government dispute that the new authority pro-
vided by the FAA expands the government’s authority
to wiretap and reduces judicial supervision of such sur-
veillance.
   The suggestion that the government is not certain to
use that authority—which was sought and provided by
Congress on the ground that it was necessary to protect
the national security—is fanciful. And in any event the
harm claimed by the plaintiffs is not simply that their
communications may be intercepted, but that the very
existence of the authority to intercept them itself causes
the harm of which they complain. The plaintiffs there-
                          132a

fore are not just people who don’t like the law; they are
people who reasonably contend that the law imposes a
burden 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 protecting
the nation’s security against very real and dangerous
external threats requires the limited additional burden
on a discrete category of international communications
imposed by the statute.
    The plaintiffs face a difficult road in persuading a
court that this is not so. There are strong arguments
against the plaintiffs’ position on the merits, and they
will be strongly made by the government as this case
goes forward. In the absence of any representations by
the government that addressing these questions would
disclose state secrets, cf. ACLU v. NSA, 493 F.3d at 650,
those arguments should be presented, and presented
forcefully, to the courts. But those who would close the
courthouse door to the plaintiffs do not rely on those
arguments. Instead, they seek to avoid having to make
them. To reject the plaintiffs’ arguments not because
they 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 surveillance
authorized by the challenged statute. The Constitution
sets limits on the powers even of Congress. It is the
glory of our system that even our elected leaders must
defend the legality of their conduct when challenged.
Short-circuiting that process risks not only that we will
be governed by unconstitutional laws, but also that legit-
                          133a

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


   REENA RAGGI, Circuit Judge, with whom Chief
Judge JACOBS, Judge CABRANES, Judge WESLEY, and
Judge LIVINGSTON join, dissenting from the denial of
rehearing en banc:
    A panel of this court recognizes plaintiffs’ standing
to mount a facial Fourth Amendment challenge to an act
of Congress that authorizes foreign intelligence surveil-
lance subject to statutory conditions, court order, con-
gressional supervision—and compliance with the Fourth
Amendment. The panel reaches this conclusion even
though plaintiffs cannot be targeted for surveillance
under that statute, cannot demonstrate actual or immi-
nent interception of any of their communications, and
may in fact never experience such interception.
    The panel concludes that plaintiffs’ professed fear of
interception under the statute is sufficient to support
standing because the fear is not “irrational,” and plain-
tiffs incurred costs to conduct conversations in person
rather than risk interception. A rule that allows a plain-
tiff to establish standing simply by incurring costs in
response to a not-irrational fear of challenged conduct
is unprecedented. On that theory, every mobster’s girl-
friend who pays for a cab to meet with him in person
rather than converse by telephone would be acting on a
not-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
                                134a

that forbearance action can do so only when a plaintiff
would otherwise certainly be subject to the challenged
conduct. The panel’s reduced standing standard is so at
odds with this precedent as to compel rejection en banc.
Because this court, by an equally divided vote, declines
to convene for that purpose, I respectfully dissent.
1. Background
    In 2008, Congress amended the Foreign Intelligence
Surveillance Act of 1978 (“FISA”) by adding § 702,
which authorizes foreign intelligence surveillance of
non-United States persons located outside this country
consistent with the Fourth Amendment and pursuant to
court order and congressional oversight. See FISA
Amendments 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 facial
constitutionality 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 residents
of the United States; and corporations incorporated in the United
States, unless qualifying as a “foreign power” under the statute. 50
U.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 to
acquire foreign intelligence information. See id . § 1881a(a)-(b).
                          135a

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 district
court carefully reviewed Supreme Court precedent and
concluded that plaintiffs lacked standing because their
subjective fear of interception was too speculative to
demonstrate the requisite actual or imminent injury.
See Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d
633 (S.D.N.Y. 2009). A panel of this court reversed, con-
cluding that plaintiffs established standing because they
sustained actual injury by incurring costs to meet with
foreign contacts rather than risk interception of their
electronic communications. See Amnesty Int’l USA v.
Clapper, 638 F.3d 118 (2d Cir. 2011). The panel ruled
that plaintiffs who incur costs to avoid feared govern-
ment action have standing to challenge that action as
long as their fears are not “fanciful,” “irrational,” or
“clearly unreasonable.” Id. at 133, 135. The panel con-
cluded that plaintiffs satisfied this standard because
their fears of interception “are based on a reasonable
interpretation of the challenged statute and a realistic
understanding of the world.” Id. at 139.
   This analysis pronounces a novel, relaxed standing
standard wholly at odds with Supreme Court precedent.
Further, the adoption of such a standard creates a split
between this court and our sister circuits in evaluating
standing to challenge foreign intelligence surveillance
programs. 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 disputes
the “exceptional importance” of these concerns. Fed. R.
                               136a

App. P. 35(a)(2). Meanwhile, a significant number views
the panel decision as fundamentally flawed for reasons
discussed in detail in this opinion.2 Nevertheless, with
little more than a token response from the author of the
panel opinion, the court refuses to rehear the case en
banc. I respectfully dissent from that decision.
2. The Nature of Plaintiffs’ Claim Warrants Particular
   Attention in Assessing Standing
   The panel’s novel conclusion—that self-incurred
costs can establish standing whenever occasioned by a
not-irrational fear of being affected by challenged gov-
ernment conduct—would warrant en banc review in any
case. 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, 521
U.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 between
the least and most democratic branches of the federal
government. 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 inimical
to the Constitution’s democratic character”); Valley
Forge 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 today
by Chief Judge Jacobs and Judge Livingston.
                                  137a

ditioned authority to determine the constitutionality
of 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 should
not hesitate to recognize standing to challenge federal
law where rigorous inquiry demonstrates it exists, a
court cannot excuse a party from that rigorous inquiry
simply by proclaiming it “the glory of our system that
even our elected leaders must defend the legality of
their conduct when challenged.” Lynch, J., Op. Concur-
ring in Denial of Reh’g En Banc (“Lynch, J., Op.”), ante
at [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 at
regular intervals. But they need not defend it in court “when[ever]
challenged.” Lynch, J., Op., ante at [18]. Rather, they must do so only
when the challenging party can demonstrate an actual or imminent
personal injury caused by that conduct. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 575 (1992) (observing that injury element of
standing requires more than “alleged violation of a right to have the
Government act in accordance with law”). It is this standing issue that
half 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 by
charging us with fear of another, i.e., the merits of plaintiffs’ claim. See
Lynch, J., Op., post at [17]. Much less can he insinuate that we in the
dissent are somehow less sensitive than he to the judiciary’s proper role
in reviewing constitutional challenges to acts of Congress. Indeed, it
was 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,” federal
courts might take possession of “almost every subject proper for legis-
lative discussion and decision,” a result unwarranted in a democratic
republic. 4 Papers of John Marshall 95 (C. Cullen ed. 1984) (quoted in
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). Mindful of
this admonition, the Supreme Court has long been careful to observe
the “role assigned to the judiciary” within the Constitution’s “tripartite
allocation of power.” Flast v. Cohen, 392 U.S. 83, 95 (1968). Consistent
                                 138a

    Second, plaintiffs cannot themselves be targets of the
statute they seek to invalidate. That fact requires them
to make a “much more” convincing showing of standing
than would be demanded of a target. Lujan v. Defend-
ers of Wildlife, 504 U.S. 555, 562 (1992) (stating that it
is ordinarily “substantially more difficult” to establish
standing to challenge government action that targets
someone else (internal quotation marks omitted)). The
requirement is based on a prudential concern with en-
suring that a party who wishes to use the courts rather
than the public square to attack legislation asserts his
own concrete claim of injury rather than those of third
parties. 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, but
also from premature interpretations of statutes in areas
where their constitutional application might be cloudy.”
United States v. Raines, 362 U.S. 17, 22 (1960).
    This last point assumes greater significance in light
of a third feature of the case: the nature and source of
the personal right asserted by plaintiffs are unclear.
“Although standing in no way depends on the merits of
the plaintiff ’s contention that particular conduct is ille-
gal, it often turns on the nature and source of the claim
asserted.” Warth v. Seldin, 422 U.S. at 500 (internal
citation omitted). In short, to determine whether a
party satisfies the injury prong of standing, a court must
understand what “legally protected interest” has been


with that role, when a party whose opposition to legislation has failed
to carry the day in congressional debate seeks to revive the “discussion”
in the courts, the law quite reasonably demands a rigorous inquiry into
standing, requiring the party to demonstrate that he is not simply dis-
gruntled, but actually injured by the law he challenges.
                                  139a

invaded. Lujan v. Defenders of Wildlife, 504 U.S. at
560. The question requires particular attention when, as
here, 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 substantive
Fourth Amendment rights are “intertwined”).4
    Plaintiffs submit that the FAA is unconstitutional on
its face for authorizing surveillance that violates the
Fourth 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 merits
of 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 Amendment
grounds, that claim appears to be derivative of the charged Fourth
Amendment violation: “The challenged law violates the First Amend-
ment by substantially burdening a broad range of lawful expressive
activity without adequate justification and by authorizing defendants
to 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 who
challenged warrantless NSA surveillance program on various constitu-
tional grounds “have only one claim, namely, breach of privacy, based
on a purported violation of the Fourth Amendment or FISA”). This
makes sense. Journalists investigating organized crime would hardly
be heard to complain that Title III surveillance, lawful under the
Fourth Amendment, see, e.g., United States v. Tortorello, 480 F.2d 764,
771-75 (2d Cir. 1973), nevertheless violates the First Amendment by
burdening their ability to communicate electronically with likely mob
targets who could give them insights into La Cosa Nostra, see generally
United States v. Mayer, 503 F.3d 740, 750 (9th Cir. 2007) (explaining
that undercover surveillance lawful under Fourth Amendment does not
violate First Amendment rights); ACLU Found . of S. Cal. v. Barr, 952
F.2d 457, 471 (D.C. Cir. 1991) (same in context of FISA surveillance);
                                140a

its face, the FAA makes plain that any surveillance
under that statute must be conducted consistent
with the Fourth Amendment. This is reflected in no less
than three provisions: (1) § 1881a(b)(5), which mandates
that FAA surveillance “shall be conducted in a manner
consistent with the fourth amendment to the Constitu-
tion of the United States”; (2) § 1881a(g)(2)(A)(iv), which
requires 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 amendment
to the Constitution of the United States”; and
(3) § 1881a(i)(3)(A), which conditions the requisite court
order on a judicial finding that the executive’s targeting
and minimization procedures “are consistent . . . with
the fourth amendment to the Constitution of the United
States.” See 154 Cong. Rec. S6388 (daily ed. July 8,
2008) (statement of Sen. Bond, then-Vice Chairman, S.
Select Comm. on Intelligence) (describing Fourth
Amendment compliance as “overarching mandate” of
FAA).
   In the absence of any evidence of actual surveillance
practices under the FAA, a court cannot assume that the
executive 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 with
a good faith law enforcement investigation does not violate First
Amendment rights” and collecting cases); see also Zurcher v. Stanford
Daily, 436 U.S. 547, 564 (1978) (requiring only that Fourth Amendment
be applied with “scrupulous exactitude” where First Amendment inter-
ests are implicated in search (internal quotation marks omitted)).
                                  141a

tions. Indeed, the presumption is to the contrary. See
United States v. Chem. Found ., Inc., 272 U.S. 1, 14-15
(1926) (“The presumption of regularity supports the
official acts of public officers, and, in the absence of
clear evidence to the contrary, courts presume that they
have properly discharged their official duties.”); see also
Hein v. Freedom From Religion Found ., Inc., 551 U.S.
587, 618 (2007) (Kennedy, J., concurring) (“Government
officials must make a conscious decision to obey the Con-
stitution whether or not their acts can be challenged in
a court of law and then must conform their actions to
these principled determinations.”). Thus, how can these
plaintiffs claim—in a lawsuit filed the very day the FAA
became law—that a statute to which they are not even
subject, on its face, puts them at risk of any Fourth
Amendment 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 import
where no individual rights would be vindicated” and

  6
     Judge Lynch submits that it is not unusual for facial challenges to
be filed on the date of a statute’s enactment. See Lynch, J., Op., ante
at [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 very
constitutional provision that plaintiffs claim will be violated by every
application of the law. See generally Sabri v. United States, 541 U.S.
600, 609 (2004) (noting that facial challenge “in the strictest sense” is
one claiming that “no application of the statute could be constitutional”
(emphasis added)).
                            142a

(2) “to limit access to the federal courts to those litigants
best suited to assert a particular claim.” Gladstone Re-
altors v. Vill. of Bellwood, 441 U.S. 91, 99-100 (1979); see
Warth v. Seldin, 422 U.S. at 499 (discussing how pru-
dential concerns supplement constitutional elements of
standing).
    What individual Fourth Amendment right do plain-
tiffs seek to vindicate by this facial challenge? The
question admits no easy answer. Plaintiffs assert that
the FAA “authorizes defendants to acquire the constitu-
tionally protected communications of U.S. citizens and
residents”—presumably themselves—without requiring
identification of “the people to be surveilled” and the
facilities to be monitored in “individualized warrants
based on criminal or foreign intelligence probable
cause.” Compl. ¶ 104. But as United States persons,
plaintiffs cannot be “the people to be surveilled” under
the FAA; if intercepted at all, it could only be as coinci-
dental communicants of FAA targets. Coincidental
interceptees, however, cannot claim a personal Fourth
Amendment right to be identified or to have probable
cause established as to themselves as a precondition to
reasonable 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 to
a ‘virtual general warrant’ in violation of the fourth
amendment” (quoting United States v. Kahn, 415 U.S.
143, 154 (1974)); United States v. Tortorello, 480 F.2d
764, 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 one
such participant, the statements of the other partici-
                                  143a

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 to
foreign targets. But a non-target’s personal right to
challenge the lawfulness of surveillance of a third party
usually 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 Fourth
Amendment rights with respect to foreign intelligence
surveillance that plaintiffs claim on their behalf. See
United States v. Verdugo-Urquidez, 494 U.S. 259, 274
(1990) (holding that foreign persons outside the United
States cannot claim Fourth Amendment protections);
accord In re Terrorist Bombings of U.S. Embassies in
E. Africa, 552 F.3d 157, 168-69 (2d Cir. 2008). 7 This
gives rise to a question that plaintiffs do not address and
for which no answer can be found either in the panel
opinion or Judge Lynch’s concurrence: Under what, if
any, circumstances can a coincidental interceptee claim
a 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 to
identifying the personal constitutional right that plaintiffs seek to vin-
dicate through this action.
                                 144a

tees have not been found to have a distinct Fourth
Amendment 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 not
violate other participant’s Fourth Amendment rights). 8
    If, like the district court, the panel had concluded
that plaintiffs lacked standing regardless of the nature
of their claims because they failed to show actual or im-
minent injury from FAA interception, there would, of
course, have been no need to pursue this matter. But I
question 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 panel
could recognize plaintiffs’ standing without a clearer
comprehension of the personal Fourth Amendment right
at 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 electronic
communication service providers to challenge directives
requiring them to provide technical assistance to effect
authorized 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 analogous
to non-consensual interception.” Lynch, J., Op., ante at [11 n.8]. The
question, which is only illustrated by White, is whether in any circum-
stance where warrantless interceptions are lawful as to one party, the
law recognizes coincidental interceptees to have a distinct Fourth
Amendment right to challenge the surveillance.
                           145a

such standing is evidenced by the Fourth Amendment
challenge one such provider filed to surveillance under
the FAA’s predecessor statute, the Protect America Act
of 2007 (“PAA”), Pub. L. No. 110-55, 121 Stat. 552. See
In re Directives Pursuant to Section 105B of the For-
eign Intelligence Surveillance Act (In re FISA Section
105B Directives), 551 F.3d 1004 (FISA Ct. Rev. 2008)
(discussed further infra at [27-28]). In addition, the law
recognizes any person’s standing to challenge the legal-
ity of FISA-acquired evidence that is offered against
him 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 50
U.S.C. § 1806(c) (requiring government to notify inter-
ceptee of intent to disclose or use information derived
from electronic surveillance); id. § 1806(e) (permitting
interceptee to move to suppress information derived
from electronic surveillance as unlawfully acquired); id.
§ 1881e(a) (subjecting information derived from FAA
surveillance to provisions of § 1806). Thus, a relaxed
inquiry into plaintiffs’ standing cannot be justified on
the ground that no one else will be able to challenge
FAA surveillance. In any event, the Supreme Court has
expressly rejected such an argument as a ground for
recognizing standing. See Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 227 (1974) (citing
United 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 prudential
concerns triggered by these particular aspects of plain-
tiffs’ claim, I turn to the even more serious matter of the
panel’s failure to follow Supreme Court standing prece-
dent.
                                  146a

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, reduced
standing 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 that
constitute the “irreducible constitutional minimum” for
standing: (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 or
hypothetical”; (2) a causal connection, i.e., “the injury
has to be fairly traceable to the challenged action of the
defendant”; and (3) redressability, i.e., “it must be
likely, as opposed to merely speculative, that the injury
will 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 actually
been intercepted by FAA surveillance. Nor have they
established that any such interception is “imminent,” a

  9
     Judge Lynch submits that en banc review is unnecessary because
the 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” developed
by the panel in this case might be read to bind future panels, it merits
en banc review.
                           147a

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 reoccurrence
of the challenged activity would cause the plaintiff harm
in 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 not
enough to demonstrate imminent threat: “It is the real-
ity of the threat of repeated injury that is relevant to
the standing inquiry, not the plaintiff ’s subjective appre-
hensions.” (emphasis in original)). Rather than follow
this precedent to its inevitable conclusion—dismissal of
plaintiffs’ claim for lack of standing—the panel asserts
that it “overstates” the standing standard to require
plaintiffs 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-injury
standard—“certainly impending”—articulated in Lu-
jan? By reasoning that, in lieu of injury inflicted by the
government through actual or imminent FAA intercep-
tion, plaintiffs can establish standing through self-in-
flicted injury, specifically, costs incurred to meet with
foreign contacts rather than risk feared FAA intercep-
tion. The panel concludes that with actual injury thus
established, the likelihood of interception becomes rele-
                                148a

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 a
very low bar—“If the possibility of interception is re-
mote or fanciful, [plaintiffs’] present-injury theory fails
because [they] would have no reasonable basis for fear-
ing interception under the FAA, and they cannot boot-
strap their way into standing by unreasonably incurring
costs to avoid a merely speculative or highly unlikely
potential harm,” id. at 133-34—which is then applied to
identify a claim for future injury as well. See Lynch, J.,
Op., ante at [8] (observing that “the same analysis that
supports the conclusion that the plaintiffs’ present-in-
jury theory satisfies the causation prong further sup-
ports the conclusion that the plaintiffs’ future-injury
theory properly satisfies the injury-in- fact prong” (em-
phasis in original)).10
    Thus, for the price of a plane ticket, plaintiffs can
transform their standing burden from one requiring a
showing of actual or imminent FAA interception to one
requiring a showing that their subjective fear of such
interception is not “fanciful,” “irrational,” or “clearly
unreasonable.” 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 need
to show an actual or imminent risk of being subjected to
the challenged police chokehold procedure simply by
moving from Los Angeles to Glendale, and then claiming
that the actual injury of his moving costs was “fairly


  10
    Judge Livingston’s opinion discusses in detail the concerns raised
by the panel’s identification of standing based on a theory of future
injury. See Livingston, J., Op., post at [4-11].
                                 149a

traceable” to a not-irrational fear of a procedure to
which he, after all, had already been subjected.11
    I doubt that the Supreme Court would have found
such an argument convincing in Lyons for the same rea-
son it fails to persuade here. Plaintiffs’ costs—to the
extent any were even demonstrated, see infra at [23-
24]—are fairly attributed not to the FAA but to their
own subjective fear of FAA interception, which they
claim has chilled their normal exchange of international
communications. The Supreme Court has ruled that
such subjective chilling cannot support standing. See
Laird v. Tatum, 408 U.S. 1, 10 (1972) (holding that
plaintiff “who alleges that the exercise of his First
Amendment rights is being chilled by the mere exis-

  11
     Judge Lynch states that Lyons, unlike plaintiffs here, “did not have
any reasonable expectation” that he would be subjected in the future to
the chokehold procedure he sought to enjoin. Lynch, J., Op., ante at [14
n.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 Los
Angeles v. Lyons, 461 U.S. at 106 (holding that for Lyons to establish
standing he had to allege that he would have another encounter with the
police and that “all police officers in Los Angeles always choke any
citizen with whom they happen to have an encounter” (emphasis in
original)). This court cannot reduce the “certainly impending” injury
requirement for standing to one of reasonableness by pointing to
plaintiffs’ self-incurred costs. To do so misreads Lyons and contra-
venes the holdings in Lujan v. Defenders of Wildlife, 504 U.S. at 564
n.2, and Summers v. Earth Island Inst., 129 S. Ct. at 1152-53. Rather
than respond to this and other concerns with how far the panel decision
departs from Supreme Court precedent, Judge Lynch dismissively
asserts that the dissenters “seem to misunderstand” the panel’s “injury
analysis.” Lynch, J., Op., ante at [8]. The wish appears to be father to
the thought. I fear we understand the panel’s analysis all too well, and
recognize that it puts this circuit directly at odds with binding Supreme
Court precedent.
                           150a

tence, without more, of a governmental investigative and
data-gathering activity” lacks standing to invoke federal
jurisdiction). Applying Laird to plaintiffs’ case, the dis-
trict court explained:
   What made the chilling effect subjective in Laird
   was the plaintiffs’ failure to show that they were sub-
   ject to the challenged policy and faced a threat of
   harm from it. The plaintiffs could only show that the
   surveillance policy existed. The plaintiffs’ failure to
   substantiate the alleged chill with proof that they
   really were subject to the information gathering pol-
   icy made their alleged chill “subjective.” See Ozonoff
   v. Berzak, 744 F.2d 224, 229 (1st Cir. 1984) (Breyer,
   J.) (interpreting phrase “without more” in Laird to
   mean that “[t]he plaintiffs in Laird did not claim that
   the information gathering activities were directed
   against them specifically or that the gathered data
   could be directly used against them in any foresee-
   able way”). All of the plaintiffs’ alleged “objective”
   expenditures are insufficient to establish standing
   because they all arise from the plaintiffs’ choices to
   incur expenditures and costs that are not based on a
   sufficient showing that the statute in question was
   directed at them.
Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d at
655. The Laird concerns highlighted by the district
court—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 of
FAA surveillance. Thus, whether they incurred costs or
not, they cannot show that information gathering activi-
ties under the challenged statute will be directed against
them. Indeed, the statute provides specific safeguards
                                  151a

to ensure against that possibility, see 50 U.S.C.
§ 1881a(b)-(d), (f)-(g), as well as strict limits on the use
of any information coincidentally intercepted from
United States persons, see id . §§ 1801(h), 1806, 1881a(e),
1881e(a).
    To sidestep the adverse standing conclusion dictated
by Laird, the panel attempts to cabin that Supreme
Court decision to its facts and to dismiss as dictum any
part 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 obviously
lacked standing that the Court did not need to create
stricter standing rules in the surveillance context in or-
der to deny plaintiffs standing.” Id. at 148.12 I agree
that Laird did not establish “stricter” standing rules for
surveillance cases. But I cannot agree that the Supreme
Court was pronouncing mere dictum when it identified
circumstances where a subjective chilling effect cannot
support standing. The Court made this point in distin-
guishing cases in which standing had been recognized
even though the “deterrent, or ‘chilling,’ effect of gov-
ernmental regulations [fell] short of a direct prohibition
against the exercise of First Amendment rights.” Laird
v. Tatum, 408 U.S. at 11. It stated as follows:
       In none of these cases, . . . did the chilling effect
       arise merely from the individual’s knowledge that a
       governmental agency was engaged in certain activi-

  12
      The panel’s first observation would presumably have come as a
surprise to the four Laird dissenters, especially Justice Douglas, who
thought 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); see
also id . at 38 (Brennan, J., with Stewart and Marshall, JJ., dissenting).
                                  152a

       ties or from the individual’s concomitant fear that,
       armed with the fruits of those activities, the agency
       might in the future take some other and additional
       action detrimental to that individual. Rather, in each
       of 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 was
dismiss the first sentence, which holds that the circum-
stances there identified cannot support standing. Thus,
Laird compels the conclusion here that plaintiffs lack
standing because any chilling of their electronic commu-
nications with foreign contacts, including costs incurred
in forgoing such communications, arose “merely” from
their knowledge of the existence of a program that they
feared could target their contacts. Laird v. Tatum, 408
U.S. at 11.
    In concluding otherwise, the panel not only fails to
follow Lyons and Laird, but also misapplies Friends of
the 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”), with
id. at 692 n.3 (Gibbons, J., concurring) (observing that language in
Laird might be “merely descriptive” of the facts in prior cases in which
the Court found standing). In fact, the question need not be decided in
this case, as the district court recognized. See Amnesty Int’l USA v.
McConnell, 646 F. Supp. 2d at 654 (noting without deciding question).
                           153a

preme Court held that plaintiffs who had taken steps to
avoid 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 showing
that he has altered or ceased conduct as a reasonable
response to the challenged statute.” Amnesty Int’l USA
v. Clapper, 638 F.3d at 141. This ignores circumstances
critical to the Laidlaw decision that are notably absent
from 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. It
was in these circumstances where, but for plaintiffs’ own
forbearance, they would unquestionably have been sub-
jected to the injurious conduct, that the Court addressed
the “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 of
pollutants into a river would cause nearby residents to
curtail their recreational use of that waterway and
would subject them to other economic and aesthetic
harms” (internal quotation marks omitted)). In short,
Laidlaw established a two-step standing inquiry,
“requir[ing] that plaintiffs demonstrate 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 harm
from that conduct.” ACLU v. NSA, 493 F.3d at 689
(Gibbons, J., concurring) (emphasis added).
                           154a

    Here, plaintiffs’ standing claim fails at the first step
of the Laidlaw analysis. They cannot demonstrate that
the executive is certainly conducting FAA surveillance
of their foreign contacts, much less that if they resume
electronically communicating with these contacts, they
will in fact be intercepted. Plaintiffs assert that they
reasonably fear such interception, but whether they will
ever 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 though
their fears of surveillance “may be reasonable, the alter-
native possibility remains that the NSA might not be
intercepting, and might never actually intercept, any
communication by any of the plaintiffs named in this law-
suit” (emphasis in original; footnote omitted)).
    For that reason, plaintiffs’ situation is more aptly
analogized to Lyons than to Laidlaw in that they claim
only “ ‘subjective apprehensions’ ” that FAA surveillance
will “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 facts
supporting standing in Laidlaw and those failing to sup-
port standing in Lyons must be recognized as “one of
kind, not degree,” i.e., between subjective apprehension
in Lyons as to whether challenged governmental con-
duct would even take place, and the subjective issue in
Laidlaw as to whether it was reasonable for plaintiffs to
fear harm from pollutants that unquestionably were be-
ing discharged into the river. ACLU v. NSA, 493 F.3d
at 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—
                                  155a

but the science of pollution. Likewise, in other “prospec-
tive injury” cases cited by the panel, the plaintiffs were
found to have standing because they were subject to the
conduct 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 to
transform the Supreme Court’s holding in Laidlaw,
“under which the plaintiffs who were in fact subject to
defendant’s conduct had standing because they reason-
ably feared harm from that conduct, into a much
broader 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 where
he had already declared his intent to spend in excess of statutory trig-
ger and operation of statute would “shortly burden” his expenditure of
personal funds); Massachusetts v. EPA, 549 U.S. 497, 521 (2007) (rec-
ognizing standing to challenge EPA’s refusal to regulate greenhouse
emissions, resulting in “actual and imminent” injury to state coastal
property due to rising sea levels (internal quotation marks omitted));
Pennell v. City of San Jose, 485 U.S. 1, 8 (1988) (holding, on motion to
dismiss, that complaint adequately alleged facts to show that challenged
ordinance “will be enforced against” plaintiffs, but “strongly suggest-
[ing]” that future litigants “take pains to supplement the record in any
manner necessary” to enable court to address standing inquiry “with as
much precision as possible”); Meese v. Keene, 481 U.S. 465, 473 (1987)
(recognizing standing to challenge statute requiring certain films to be
labeled as “political propaganda” where statute undoubtedly applied to
films 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, that
plaintiffs adequately alleged standing to challenge rail surcharge be-
cause if facts alleged were proved true, plaintiffs would be “squarely
among those persons injured”).
                                  156a

lish standing by showing merely that they possess a rea-
sonable fear of being subject to defendant’s allegedly
harmful conduct.” Id . at 689 (emphasis in original).
This court needs to say so en banc.
4. The Factual Record Fails To Satisfy Even the
   Panel’s Reduced Standing Standard
    After pronouncing a reduced standing standard at
odds with Supreme Court precedent, the panel allows
plaintiffs to satisfy that standard on a negligible factual
record. The panel identifies actual present injury based
on plaintiffs’ sworn assertions that “it has become more
difficult and expensive to practice their professions as a
result of the enactment of the FAA.” Lynch, J., Op.,
ante at [9 n.6]; see Amnesty Int’l USA v. Clapper, 638
F.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 notably
lacking in the requisite “specific facts.” Lujan v. De-
fenders of Wildlife, 504 U.S. at 561 (internal quotation
marks omitted).15


  15
     The “certainty and specificity” requirements for standing are not
demanded by this judge, as Judge Lynch suggests, see Lynch, J., Op.,
ante at [13 n.9], but by binding Supreme Court precedent. To the
extent Judge Lynch submits that it is impossible for plaintiffs to satisfy
that standard with respect to their actual interception under a classified
surveillance scheme, that does not permit the panel to relieve plaintiffs
of the standing burden established by this precedent. See Schlesinger
v. 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 support
the self-incurred costs prong of even the panel’s reduced standing
standard, a matter wholly within plaintiffs’ personal knowledge.
                          157a

    Two declarants conclusorily report only that they
“will have to travel” at unspecified future times to avoid
FAA interception of their conversations with foreign
sources. See Mariner Decl. ¶ 10 (stating that, as a result
of FAA, “I will have to travel abroad to gather informa-
tion that I would otherwise have gathered by telephone
or e-mail”); Klein Decl. ¶ 9 (stating that, as a result of
FAA, “I will have to travel to gather information that I
previously might have gathered by telephone or e-
mail”). Two other declarants imply actual travel without
providing 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 to
speak 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 telephone
or email . . . [which] requires travel that is both time-
consuming and expensive”). Finally, one declarant who
resides in Washington, D.C., asserts that, “[m]ost re-
cently,” she traveled “to New York City to meet with” a
French barrister to discuss her representation of a
Guantanamo Bay detainee. Royce Decl. ¶ 7. Assuming
that the declarant incurred costs for this trip—a fact not
specifically asserted—those costs cannot constitute FAA
injury because the statute would not have permitted
interception of electronic communications with a French
national who was in New York. See 50 U.S.C.
§ 1881a(b)(1) (precluding targeting of any person known
to be in United States).
   Thus, while the panel’s identification of self-incurred
costs as the actual present injury in this case is legally
unsupportable for reasons discussed in the previous sec-
                                  158a

tion of this opinion, it also lacks the requisite foundation
in “specific facts,” even without considering the “much
more” 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 interpretation
of the challenged statute and a realistic understanding
of the world.” Amnesty Int’l USA v. Clapper, 638 F.3d
at 139. But how reasonable can it be to interpret the
FAA—a statute that, on its face, requires all intercep-
tions conducted thereunder to be consistent with the
Fourth Amendment—to authorize, on its face, intercep-
tions that invariably will violate that amendment? And
what is the basis for plaintiffs’ “realistic view of the
world” of foreign intelligence surveillance, particularly
with 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 a
see 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—the
straw 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 costs
and 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 the
panel’s opinion or Judge Lynch’s concurrence.
                                  159a

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 similarly
unsubstantiated 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 127
n.10, 129 & n.13, 133. But the panel could not relieve
these non-target plaintiffs of their particularly heavy
evidentiary burden, nor could it forgo its own duty to
conduct 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. at
1152-53 (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 the
government will seek to surveil plaintiffs’ overseas contacts such as
“alleged Al Qaeda members (and Guantanamo detainees) Khalid Sheik
Mohammed and Mohammedou Ould Salahi, as well as those men’s
families.” Lynch, J., Op., ante at [13]. What is speculative, however, is
that these persons will be surveilled under the FAA. The electronic
communications of persons in federal custody are routinely surveilled
on a theory of implied consent based on notice. See United States v.
Amen, 831 F.2d 373, 378 (2d Cir. 1987). Moreover, alleged al Qaeda
members and their families are such obvious targets for FISA or NSA
surveillance that one can only speculate that the executive would
instead use the FAA to monitor their electronic communications. See
ACLU v. NSA, 493 F.3d at 671 (Batchelder, J.) (finding it “reasonable”
that FISA Court would authorize interception of communications
involving al Qaeda affiliates targeted under challenged NSA surveil-
lance program). To the extent the real issue here is the possibility of
dragnet surveillance, see Lynch, J., Op., ante at [7 n.4], the interception
of plaintiffs’ contacts—or plaintiffs themselves—pursuant to the FAA
is completely speculative for reasons discussed in Parts 5 and 6 of this
opinion.
                           160a

obligation” to assess plaintiffs’ standing, even if the gov-
ernment did not call it into question at all. Arizona
Christian Sch. Tuition Org. v. Winn, 131 S. Ct. at 1454.
    In fact, a glimpse into the actual world of foreign
intelligence targeting is afforded by unredacted portions
of the FISA Court of Review’s opinion in In re FISA
Section 105B Directives, 551 F.3d 1004, and that world
appears quite different from the one hypothesized by
plaintiffs. That case presented an as-applied challenge
to now-expired amendments to FISA effected through
the PAA, which allowed the executive “to conduct war-
rantless foreign intelligence surveillance on targets (in-
cluding United States persons) reasonably believed to
be located outside the United States,” subject to speci-
fied criteria, including the adoption of targeting and
minimization procedures akin to those now required by
the FAA, but with no prior court review. Id. at 1006-07
(internal quotation marks omitted). After holding that
foreign intelligence surveillance is not subject to the
Fourth Amendment warrant requirement, see id . at
1012, the court addressed a Fourth Amendment reason-
ableness challenge based on the PAA’s failure to require
particularity, judicial review of probable cause, or ade-
quate proxies for these omitted protections, see id . at
1013. Before rejecting the claim, the court reviewed the
actual procedures adopted by the executive to satisfy
PAA requirements and found that they in fact afforded
“protections above and beyond those specified” in the
statute, 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 order
that required Attorney General to determine in each
case, based on information provided pursuant to Depart-
                           161a

ment of Defense regulations, that probable cause existed
to believe that targeted person is foreign power or agent
of foreign power). Such scrupulous oversight rebuts any
general assumptions, unsupported by specific facts, that
the executive will instinctively abuse its targeting dis-
cretion under the FAA—a statute that goes further than
the PAA in subjecting executive targeting and minimi-
zation procedures to judicial review and in conditioning
court orders on a specific finding that the procedures
are “consistent . . . with the fourth amendment.” 50
U.S.C. § 1881a(i)(3)(A). Further, it reinforces the need
for this court to clarify en banc that, consistent with Su-
preme Court precedent, plaintiffs’ standing depends on
their showing actual or imminent FAA interception.
5. The Panel Decision Creates a Circuit Split
    The most obvious reason why plaintiffs cannot show
that they are subject to actual or imminent FAA inter-
ception is because that statute does not direct that any
foreign intelligence surveillance be conducted; it merely
authorizes the executive to undertake such surveillance
pursuant to specified statutory requirements and pro-
tections. This is not to suggest that the executive will
not 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 can
know the extent to which the executive will seek or the
FISA court authorize the exercise of such surveillance
authority. That is the point Judge Lynch ignores in his
mistaken identification of a “palpable” contradiction
between the preceding two sentences and any concern
with plaintiffs’ standing. Lynch, J., Op., ante at [13 n.9].
In fact, any decisions to seek or grant FAA surveillance
authority depend, among other things, on national secu-
                                  162a

rity priorities, available resources, alternative means of
surveillance, and, of course, Congress’s mandate that all
FAA surveillance be conducted in compliance with the
Fourth Amendment. In these variable circumstances,
plaintiffs cannot show that their foreign contacts are
certain to be targeted for FAA surveillance. Much less
can 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 that
plaintiffs lacked standing precisely because they could
not demonstrate actual or imminent interception under
such schemes. See United Presbyterian Church v. Rea-
gan, 738 F.2d at 1380 (Scalia, J.) (stating that even if
plaintiffs may be “at greater risk than the public at
large” to being targeted for surveillance, such risk falls
“far short of the ‘genuine threat’ ” of harm required
to support standing); accord Al-Haramain Islamic
Found ., 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 such
surveillance was too speculative to support standing);18
ACLU v. NSA, 493 F.3d at 667 (Batchelder, J.) (holding
that 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 NSA
surveillance. Nevertheless, because the document was protected by the
state secrets privilege, the court concluded that plaintiffs lacked stand-
ing because they failed to point to any admissible evidence that their
fear of interception was more than conjectural. See Al-Haramain Is-
lamic Found ., Inc. v. Bush, 507 F.3d at 1205.
                                 163a

conversations” could not rely on “a possibility” of future
interception 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 policy
may be enforced against them, in concluding that plain-
tiffs lacked standing to challenge warrantless NSA sur-
veillance program that might target persons with whom
they regularly communicated).
    The panel dismisses these cases as not binding on
this court. See Amnesty Int’l USA v. Clapper, 638 F.3d
at 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] (contrasting
challenge to constitutionality of entire national intelligence gathering
system in that case with challenge to specific statute in this case), and
ACLU v. NSA a narrower one, see id . at [15] (contrasting challenge to
NSA warrantless surveillance program targeting persons associated
with al Qaeda in that case with challenge to statute that permits drag-
net surveillance here). He does not explain, however, how these
differences 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 plaintiffs
here “suffered concrete harms—including the expenditure of funds.”
Id. at [14-15]. In fact, the plaintiffs in United Presbyterian Church
alleged 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 past
FAA surveillance. No matter. The facts alleged in United Presbyte-
rian Church cannot satisfy standing under the rules enunciated in City
of Los Angeles v. Lyons, 461 U.S. at 107 & n.8, and Laird v. Tatum, 408
U.S. at 10-11. And for the reasons discussed, see supra Part 3, no dif-
                                 164a

The court should convene en banc to eliminate the un-
necessary circuit split created by the panel decision.
6. Statutory “Gates” to FAA Interception, Including
   Judicial Review, Make Plaintiffs’ Interception Par-
   ticularly Speculative
    Plaintiffs’ standing burden is, in fact, heavier in this
case than in those confronting our sister circuits. In
each of those cases, the challenged programs involved
intelligence surveillance conducted under executive au-
thority without congressional authorization or judicial
review. By contrast, the powers of all three branches of
the federal government are united to support FAA sur-


ferent conclusion is warranted by plaintiffs’ purported expenditures to
avoid 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 argued
that it would not be able to address the question of standing without
disclosing state secrets,” whereas here, the government did not invoke
the state secrets privilege. Lynch, J., Op., ante at [15]. As I read
ACLU v. NSA, the government invoked the state secrets privilege not
for the reason stated by Judge Lynch, but “to bar the discovery or
admission of evidence” by plaintiffs of evidence that might compromise
national security. ACLU v. NSA, 493 F.3d at 650 (Batchelder, J.). In
short, the government’s argument was not that it could not address
standing without the disclosure of this evidence, but that “without the
privileged information, none of the named plaintiffs could establish
standing.” Id. Deciding the case “solely on the publicly available infor-
mation that was admitted by the district court and made a part of its
record,” id. at 650 n.3, the Sixth Circuit concluded that the plaintiffs
failed 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 any
discovery that was denied under that privilege, simply do not demon-
strate standing under binding Supreme Court precedent.
                          165a

veillance. See United States v. Abu-Jihaad, 630 F.3d at
121 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 635-37 (1952) ( Jackson, J., concurring)). More
to the point for purposes of standing, when Congress
authorized FAA surveillance, it erected a number of
statutory “gates” through which the executive must pass
before it can intercept any communications. At each
gate, the sphere of possible interceptions can be nar-
rowed, whether by limitations on targeting, minimi-
zation requirements, judicial review, or a Fourth
Amendment mandate. Thus, to demonstrate that they
are subject to actual or imminent FAA surveillance,
plaintiffs must show not only that it is certain that the
executive will target their foreign contacts—which
plaintiffs cannot do—but also that interception of these
particular 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 plaintiffs
cannot show that their interception is certain notwith-
standing the targeting and minimization procedures
required by the FAA. As for judicial review, the panel’s
dismissal of that intermediate step notably fails to men-
tion the FISA court’s obligation to make an independent
Fourth Amendment finding before issuing any FAA or-
der. Instead, the panel implies that FISA court judges
will simply rubber stamp FAA surveillance applications
and, 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 does
not indicate “how many of these applications, if any,
                           166a

came after the FAA was enacted on July 10, 2008”). I
respectfully disagree. The statistics merit little consid-
eration; they could just as easily reflect the executive’s
scrupulous compliance with statutory requirements be-
fore submitting applications for judicial review. See
generally In re FISA Section 105B Directives, 551 F.3d
at 1007 (recognizing that executive was more protective
than PAA required in conducting warrantless surveil-
lance under that statute).
    More important, the panel fails to tell the whole
story when it states that the FISA court “must” order
FAA surveillance if the executive’s certification “con-
forms to the statutory requirements.” Amnesty Int’l
USA v. Clapper, 638 F.3d at 139. To be sure, the
FISA 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 that
the executive’s targeting and minimization procedures
conform 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 new
procedure for targeting foreigners outside the United
States 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 that
targeting and minimization procedures are inconsistent
with FAA’s requirements or Fourth Amendment, then
it “shall order the Government, at its election, to correct
                                  167a

any deficiencies or cease, or not begin, the acquisi-
tion”).20
    There is no reason to think that the Article III
judges who serve on the FISA court will be timid in ex-
ercising this review authority. Well before the FAA was
enacted, the FISA Court of Review ruled that FISA
court judges were authorized to scrutinize government
applications, including “certifications,” and to seek more
information as warranted to ensure compliance with
statutory requirements. In re Sealed Case, 310 F.3d
717, 735-36 (FISA Ct. Rev. 2002). Thus, they can be
expected to do the same in conducting the constitutional
review mandated by the FAA. See generally In re FISA
Section 105B Directives, 551 F.3d at 1008 (noting that,
in reviewing constitutional challenge to PAA, FISA
court “handed down a meticulous opinion”).21

  20
      Judge Lynch persists in minimizing the FAA’s Fourth Amendment
mandate 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 core
Fourth 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 as
Judge 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, is
not 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 explain
that 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
                               168a

   In sum, plaintiffs fail to establish standing because
they 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, the
panel addressed the final constitutional requirement,
redressability, in a footnote. Acknowledging that the
element had received little attention from the district
court 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 would
no 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 cannot
be dismissed so easily.
    To demonstrate redressability, “it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Lujan v. Defenders
of Wildlife, 504 U.S. at 561 (internal quotation marks
omitted); accord Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. at 181. Under the
panel’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 decide
whether the targeting and minimization procedures are consistent with
the Fourth Amendment.” Id . at 9 (citing 50 U.S.C. § 1881a(i)(3)(A)).
                                169a

their burden on redressability, plaintiffs had to adduce
evidence that enjoining FAA surveillance would relieve
them of the need to incur such costs. Such a conclusion
cannot withstand scrutiny.
    Plaintiffs’ theory of standing is predicated on the
assertion that their foreign contacts are “likely” to be
targeted for FAA surveillance because they are “people
the U.S. government believes or believed to be associ-
ated with terrorist organizations, political and human
rights 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 a
special focus of the U.S. government’s counterterrorism
or diplomatic efforts.” Amnesty Int’l USA v. Clapper,
638 F.3d at 127 (internal quotation marks omitted). But
if 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 the
universe of alternative electronic surveillance options
available to the government. After FISA’s original en-
actment, warrantless radio surveillance of international
communications carried by satellite and wire surveil-
lance of international communications performed on
foreign 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 States
v. Abu-Jihaad, 630 F.3d at 121 (noting that question remains unre-
solved by Supreme Court). Rather, Congress has required, and the
                                   170a


executive has agreed, that some foreign intelligence surveillance will be
so conducted as specified in FISA and various amendments thereto,
such as the FAA. See id . (recognizing that when executive conducts
foreign intelligence surveillance pursuant to statutory authority and
court 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 surveillance
not authorized by FISA is proscribed, an inference that might mistak-
enly be drawn from the panel’s observation that “[t]he FAA was passed
specifically to permit surveillance that was not permitted by FISA but
that was believed necessary to protect the national security,” Amnesty
Int’l USA v. Clapper, 638 F.3d at 138. Indeed, Judge Lynch only adds
to the confusion when he states that “the FAA indisputably and
significantly broadens the risk of interception, lowers the government’s
probable-cause burden, and decreases the oversight role” of the FISA
court. 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 FAA
was previously covered by FISA.
   In fact, FISA’s history shows that Congress specifically chose not to
subject 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 United
States”); id. at 71 (stating that FISA “does not deal with international
signals intelligence activities as currently engaged in by the [NSA] and
electronic surveillance conducted outside the United States”). Nor did
Congress extend FISA to all foreign intelligence surveillance in which
a United States person might coincidentally be intercepted. See, e.g.,
Foreign Intelligence Electronic Surveillance: Hearing Before the
Subcomm. 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 persons
in this country would be covered by FISA, but “nontargeted sweeps”
by the NSA “would not be covered”).
                                  171a


   Some thirty years later, in hearings leading to the enactment of the
FAA, 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 what
foreign intelligence surveillance did and did not fall within that law’s
parameters. See, e.g., Modernization of the Foreign Intelligence
Surveillance 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 in
1978 could not have been expected to predict an integrated global
communications grid that makes geography an increasingly irrelevant
factor. Today, a single communication can transit the world even if the
two people communicating are only located a few miles apart. And yet
simply because our law has not kept pace with technology, communica-
tions intended to be excluded from FISA are in fact included.”); FISA
for the 21st Century: Hearing Before the S. Comm. on the Judiciary,
109th Cong., 2d Sess., at 9 ( July 26, 2006) (statement of Gen. Michael
Hayden, 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 information
from non-United States persons located outside this country. Contrary
to the panel’s characterization, the FAA does not authorize conduct that
Congress intended to proscribe in FISA. Rather, it subjects some for-
eign intelligence surveillance that previously may have been conducted
pursuant to executive order to new statutory limitations, including judi-
cial review. At the same time, it clarifies that some foreign intelligence
surveillance that might have been thought to fall within FISA’s original
terms should instead be conducted pursuant to the requirements and
protections outlined in the FAA. See generally United States v. Abu-
Jihaad, 630 F.3d at 121-22 (“[T]he Constitution’s warrant requirement
is flexible, so that different standards may be compatible with the
Fourth Amendment in light of the different purposes and practical con-
siderations at issue.” (internal quotation marks omitted)). It is in this
context that I question whether plaintiffs’ profession that they have
                                172a

    Thus, even if FAA surveillance were enjoined, the
government could still conduct surveillance by other
means, such as FISA-exempt NSA surveillance pro-
grams or, in certain cases, FISA itself. Whether or not
these alternatives would be more difficult or time-
consuming is not the point. The critical fact is that
plaintiffs would not know whether such alternative sur-
veillance was being conducted with respect to contacts
whom plaintiffs assert are of obvious foreign intelligence
interest. See generally ACLU v. NSA, 493 F.3d at 671
(Batchelder, J.) (concluding that enjoining NSA war-
rantless surveillance of terrorists and their affiliates
would not redress plaintiffs’ fears of interception be-
cause of likelihood that FISA court would authorize such
interceptions). Moreover, the United States is hardly
the only government conducting electronic surveillance.
Even without the FAA, then, plaintiffs would confront a
real possibility that their foreign contacts, particularly
those believed to be associated with terrorist organiza-
tions or opposed to established governments, would be
prime targets for surveillance by other countries, includ-
ing their own.23 Thus, neither their fear of interception
nor their need to incur costs to avoid such interception
would be redressed by enjoining FAA surveillance.
   Apparently, the government made this point at oral
argument 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 than
before 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 willing
to speak—presumably critically—about U.S. policy).
                           173a

fessed itself ‘puzzled’ as to why the plaintiffs had not
been just as nervous about being monitored before the
FAA was enacted as they are now”). The panel, how-
ever, concluded that the government could not question
the genuineness of plaintiffs’ assertions as to the impact
of the FAA on their work because it had failed to submit
contrary evidence or to seek a hearing in the district
court. See id . I am not convinced. A standing determi-
nation is not a debate round, where an unchallenged
point, however unsubstantiated, is scored for its propo-
nent. See generally Lujan v. Defenders of Wildlife,
504 U.S. at 581 (Kennedy, J., concurring) (observing
that standing requirements ensure that “legal questions
. . . will be resolved, not in the rarified atmosphere of
a debating society, but in a concrete factual context con-
ducive to a realistic appreciation of the consequences of
judicial action” (internal quotation marks omitted)).
Rather, as earlier noted, a federal court is under an “in-
dependent obligation to consider standing, even when
the parties do not call it into question.” Arizona Chris-
tian Sch. Tuition Org. v. Winn, 131 S. Ct. at 1454; see
Summers v. Earth Island Inst., 129 S. Ct. at 1152. That
obligation requires an especially rigorous inquiry into
self-serving assertions unsupported by specific facts.
Indeed, the obligation applies with particular force
where, as here, the injury to be redressed is self-in-
flicted, making it appropriate to consider whether, if the
fear is genuine, it would persist even if the relief sought
were granted.
   The concerns raised by the panel’s redressability
analysis only reinforce the need to review this case en
banc. I emphasize, however, that such review, if con-
ducted in accordance with established Supreme Court
precedent, would never reach the issue of redressability.
                           174a

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

                          * * *
   To summarize, this case demands en banc review
because the panel’s recognition of plaintiffs’ standing
based on costs incurred to avoid a not-irrational fear of
FAA 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 of
Congress that cannot target him;
    (2) fails to address prudential concerns raised by
plaintiffs’ 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 would
certainly be subject to the challenged conduct;
   (4) is not, in any event, supported by “substantial
facts” in this case;
    (5) creates a split between this court and three of our
sister circuits in analyzing standing to challenge foreign
intelligence 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 inquiry
or substantial facts.
                           175a

    Insofar as the court today denies rehearing en banc,
it is not the six judges who dissent from that decision
who “close” any courthouse doors. Lynch, J., Op., ante
at [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 in
dissent can only hope that its doors will be opened for
further discussion of this case.


   DEBRA ANN LIVINGSTON, Circuit Judge, with whom
Chief Judge JACOBS, Judge CABRANES, Judge RAGGI,
and Judge WESLEY join, dissenting from the denial of
rehearing en banc:
    I join fully in Judge Raggi’s scholarly opinion dis-
senting from the denial of rehearing en banc. I write
separately only to address the degree to which the
panel’s opinion, in frank disregard of clear Supreme
Court authority, threatens a sub silentio transformation
of this Circuit’s case law regarding so-called “probabil-
istic harm”—meaning, the narrow circumstances in
which this Court has recognized injury in fact to exist
based on the risk of some future harm.
    The Supreme Court has repeatedly instructed that
injury in fact must be actual or imminent to afford Arti-
cle III standing to a would-be plaintiff. Thus, in
Whitmore v. Arkansas, 495 U.S. 149 (1990), the Court,
summarizing its case law, stated flatly that threatened
injuries must be “certainly impending” to constitute
injury in fact: “[W]e have said many times before and
reiterate today: Allegations of possible future injury do
not satisfy the requirements of Art[icle] III.” Id . at 158.
                           176a

Only two Terms ago, the Court affirmed that even the
statistical probability of future harm is not enough:
standing, the Court said, “ ‘is not “an ingenious academic
exercise in the conceivable” . . . [but] requires . . . a
factual 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 on
their alleged fear of future surveillance because there is
an “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 injury
must be actual or imminently threatened, see, e.g., Sum-
mers, 129 S. Ct. at 1148, nor did it justify its attempt at
expansion of the limited circumstances in which this Cir-
cuit has found injury in fact to be present based on a
risk of future harm.
    Judge Lynch, in his opinion concurring in the denial
of 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 result
of their fear of surveillance—in an effort to substantiate
his point. Lynch, J., Op. Concurring in Denial of Reh’g
En Banc 10 n.6. But the plaintiffs here relied on two
asserted injuries in their bid for standing—not only on
their present costs, but also on their asserted fear of
future surveillance. The panel opinion addresses both.
With regard specifically to the future injury, more-
                           177a

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 standing
   under their future-injury theory, we would need to
   determine whether the FAA creates an objectively
   reasonable likelihood that the plaintiffs’ communica-
   tions are being or will be monitored under the FAA.
   As noted above, we conclude that the future injuries
   alleged 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 risk
   of future harm.
638 F.3d at 134 (emphasis added). With respect, this
simply ignores the Supreme Court’s admonition that
“[a]llegations of possible future injury do not satisfy the
requirements of Art[icle] III.” Whitmore, 495 U.S. at
158. Neither the panel opinion nor Judge Lynch’s con-
currence, moreover, offers any refutation of the analysis
here, nor even a word of justification for this wholesale
broadening of the narrow circumstances in which this
Circuit has found injury in fact to be present based on a
risk of future harm.
    Having proffered only a token response to the seri-
ous questions that his standing analysis raises, Judge
Lynch concludes his concurrence by suggesting that
anyone who disagrees with the panel’s novel approach to
standing seeks without warrant “to close the courthouse
doors.” Lynch, J., Op., ante at 18-19. This charge is
perhaps ironic, given that six members of this Court—a
full half of its active judges—have vigorously sought to
open those doors to a more careful examination of the
                           178a

panel’s startling standing conclusions but have been
thwarted in this effort, and despite the universally ac-
knowledged “exceptional importance” of the issue pre-
sented.
   Again with due respect, the Constitution sets limits
not only on the power of Congress, as Judge Lynch’s
concurrence affirms, but also on that of judges. It is
thus not the “glory of our system,” as the concurrence
would have it, see Lynch, J., Op., ante at 18, that elected
leaders must answer to unelected judges whenever a
challenge is asserted. Article III of the Constitution
instead limits the judicial power “to redress[ing] or
prevent[ing] actual or imminently threatened injury to
persons caused by private or official violation of law.”
Summers, 129 S. Ct. at 1148. As the Supreme Court
said only two Terms ago, “[e]xcept when necessary in
the execution of that function, courts have no charter to
review and revise legislative and executive action.” Id.
    In concluding, without explanation, that injury in fact
has been established here based on a mere “reasonable
likelihood” 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 arrogating
to themselves a power inconsistent with both our consti-
tutional design and the role of courts in a democratic
society. See Warth v. Seldin, 422 U.S. 490, 498 (1975).
The panel’s wholesale (if unacknowledged) disavowal of
Supreme Court precedent in its assessment of the plain-
tiffs’ “future injury” claim thus represents a further
basis—in addition to the many identified by Judge
Raggi in her thorough and thoughtful opinion—for en
banc review.
                          179a

                           * * *
    As Judge Raggi’s dissent points out, the panel’s con-
clusion that the plaintiffs have established standing was
based in part on an alleged “present injury”—their self-
inflicted costs purportedly incurred as a result of a
claimed fear of surveillance under the FAA. Amnesty
Int’l, 638 F.3d at 138. I share Judge Raggi’s view that
the panel failed to demonstrate how an injury of this
sort can be termed “fairly traceable” to the FAA under
the existing precedents of the Supreme Court or this
Circuit. I note, however, that the panel opinion does not
even truly address the degree to which the plaintiffs’
vaguely alleged self-inflicted costs must be shown to be
fairly traceable to the FAA in the first place. Rather, it
comes to the startling conclusion that because the future
surveillance the plaintiffs claim to fear is “sufficiently
likely [to occur] to confer standing under the test estab-
lished in the case law for basing standing on the risk of
future harm,” id . at 134, the panel “need not and do[es]
not decide whether the degree of likelihood necessary to
establish a causal relationship between an actual present
injury and the challenged governmental action is as
stringent as that necessary for a potential harm in itself
to confer standing,” id .
   The conclusion that the alleged risk of future surveil-
lance here suffices to constitute injury in fact is truly
unprecedented. The panel arrives at it by asserting that
the standard for assessing an alleged future harm of this
sort asks “whether the FAA creates an objectively rea-
sonable likelihood that the plaintiffs’ communications
are being or will be monitored under the FAA.” Id . The
panel opinion provides no authority for this novel stan-
dard but instead obscures the lack of authority for its
“future injury” holding in two ways.
                           180a

    First, the panel conflates the rare cases in which
standing has been established based on an increased
risk of harm with a distinct line of cases—inapplicable
here—in which a plaintiff undisputedly subject to a par-
ticular statute is permitted to bring a pre-enforcement
facial challenge even though he cannot establish with
certainty that he will face prosecution should he violate
the statute’s terms. Thus, the opinion asserts as a gen-
eral matter that “where a ‘plaintiff ’s interpretation of a
statute is “reasonable enough” and under that interpre-
tation the plaintiff “may legitimately fear that it will
face enforcement of the statute,” then the plaintiff has
standing to challenge the statute.’ ” Id . at 138 (quoting
Pac. 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 cited
cases, however, do not reflect a general endorsement of
the proposition that a plaintiff has standing to challenge
any statute from which he “legitimately fear[s]” harm
based on a “reasonable enough” interpretation, nor
could they, consistent with the Supreme Court’s case
law regarding standing based on future harm. Rather,
these cases reflect a particular standard applicable to
the specific context of pre-enforcement facial challenges,
under which “[a] plaintiff . . . need not demonstrate to
a certainty that it will be prosecuted under the statute
to 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 statute
that could be enforced against any plaintiff in this pro-
ceeding, these pre-enforcement facial challenge cases
are of no relevance here.
                                 181a

    The panel next purports to rely on the Supreme
Court’s decision in City of Los Angeles v. Lyons, 461
U.S. 95 (1983), a case it terms “the seminal case on
standing based on probabilistic or prospective harm.”
Amnesty Int’l, 638 F.3d at 136. Of course, Lyons is the
same case that the Supreme Court described two Terms
ago as “an opinion that did not find standing, so the
seeming expansiveness of [its] test made not a bit of dif-
ference.” Summers, 129 S. Ct. at 1153.1 Moreover, the
Summers Court, in rejecting the claim that Lyons set
out a new and less stringent general standard for the
use of prospective harm to establish Article III stand-
ing, went on expressly to decline to replace the familiar
requirement that a future harm be “imminent” to consti-
tute injury for the purposes of standing with one that
would grant standing based on a mere “realistic threat”
that challenged activity will recur “in the reasonably
near future.” Id . at 1152-53 (italics omitted) (internal
quotation marks omitted). Plainly, Lyons presents no
authority for the notion that the majority’s novel “objec-
tively reasonable likelihood” test should be substituted
for 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), described
by the panel as “articulat[ing] the principle of Lyons as requiring an
inquiry into the probability of future harm,” Amnesty Int’l, 638 F.3d at
136, 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 the
expansiveness of the standing principle Curtis supposedly articulated
is subject to the same critique.
                           182a

    As this Court has expressly acknowledged in the
past, 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 developed
largely in the courts of appeals, Baur v. Veneman, 352
F.3d 625, 633 (2d Cir. 2003), and, in particular, in the
specific context of environmental and health-related
litigation, see Natural Res. Def. Council v. EPA, 464
F.3d 1, 6 (D.C. Cir. 2006) (“[W]e have recognized that
increases 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 environmental
harms, hypothesized ‘increased risk’ has never been
deemed sufficient ‘injury.’ “); Friends of the Earth, Inc.
v. Gaston Copper Recycling Corp., 204 F.3d 149, 160
(4th Cir. 2000) (en banc) (“Threatened environmental
injury 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 of
suits alleging environmental harm. See Massachusetts
v. EPA, 549 U.S. 497, 520-23 (2007) (recognizing as in-
jury a state’s actual loss of coastal land and the risk of
future loss over the course of the next century); Friends
of 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 fact
when the pollution lessens their aesthetic and recre-
ational enjoyment of a certain place they visit, even if
uncertainty exists as to the environmental harm being
                                  183a

caused). These cases announce no general departure
from the “actual or imminent” standard. Indeed, the
Supreme Court’s recent decision in Massachusetts v.
EPA, which found injury in fact arising in part from the
risk of future loss of coastal land, did so only in a context
in which it also carefully noted that at least two special
circumstances—not present here—justified relaxation
of the traditional standing rules that would otherwise
apply.2
    “Probabilistic” injury has thus never been recognized
by the Supreme Court or this Circuit as sufficient as
a 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 purely
speculative ‘increased risks’ deemed injurious, the entire
requirement 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 future
injury.’ ” Ctr. for Law and Educ., 396 F.3d at 1161.

  2
    Thus, the Court noted that Congress had accorded the litigants in
Massachusetts 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.” 549
U.S. at 517-18 (quoting Lujan, 504 U.S. at 572 n.7) (internal quotation
marks omitted). In addition, the Court also relied on the fact that the
party 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 of
both circumstances here limits the applicability of Massachusetts v.
EPA to this case. See Richard H. Fallon, Jr., John F. Manning, Daniel
J. Meltzer & David L. Shapiro, Hart and Wechsler’s The Federal
Courts and the Federal System 145-46 (6th ed. 2009) (noting the
diversity of grounds relied on by the Supreme Court in Massachusetts
v. EPA and querying whether this aspect of the decision may limit its
import in future standing cases).
                           184a

Such an approach would threaten grossly to distend the
Judicial Branch’s proper role of deciding actual cases or
controversies, rendering almost any governmental ac-
tion or inaction at least potentially subject to judicial
review so long as a court was willing to deem it “reason-
ably likely” that a plaintiff might one day be affected as
a result.
    This Circuit’s principal “probabilistic injury” case
(prior to the dramatic expansion of the category that the
panel opinion threatens to effect) was Baur, a case in
which the majority expressly noted that it “need not
decide as a matter of law whether enhanced risk gener-
ally qualifies as sufficient injury to confer standing” and
did not “purport to imply that we would adopt such a
broad view.” Baur, 352 F.3d at 634. Rather, it held only
that “[i]n the specific context of food and drug safety
suits, . . . such injuries are cognizable for standing
purposes, where the plaintiff alleges exposure to poten-
tially harmful products,” id ., and those products pose a
“credible threat of harm,” id . at 637 (internal quotation
marks omitted). Acknowledging that “this type of injury
has been most commonly recognized in environmental
cases,” the Baur panel critically relied on two case-spe-
cific factors, neither of which is present here, to arrive
at this holding. Id . at 634. First, “[l]ike threatened en-
vironmental harm, the potential harm from exposure to
dangerous food products or drugs ‘is by nature probabil-
istic,’ yet an unreasonable exposure to risk may itself
cause 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 the
safety of the nation’s food supply and to minimize the
risk to public health from potentially dangerous food
and drug products,” further bolstering the case for rec-
                           185a

ognizing increased risk as a sufficiently concrete and
imminent injury in fact in that specific context. Id .
    The panel identified no such factors in this case, nor
did it engage in any similar analysis in extending the
applicability of these probabilistic harm cases, decided
in highly specific factual circumstances, to a setting in
which the plaintiffs assert, at most, a risk of being inci-
dentally intercepted by foreign surveillance conducted
by the United States. Instead, the panel opinion states
baldly that a threatened injury may be “sufficiently
probable to support standing,” with the ultimate inquiry
“qualitative, not quantitative.” Amnesty Int’l, 638 F.3d
at 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), the
panel rests its conclusion that the future harm asserted
here is “sufficiently probable” solely on the fact that the
FAA is “susceptible to . . . an interpretation” whereby
it authorizes broad surveillance, id . at 138, and that the
plaintiffs are “reasonable” in their assessment that they
communicate with people who are likely targets of sur-
veillance under the Act, id . at 139. However, even if
these assertions were sufficient to establish an enhanced
risk of surveillance (and I share Judge Raggi’s view that
they are far too speculative to do so), the panel provides
no justification for the more basic question of why such
increased risk should be treated as injury in the first
place.
    Indeed, a careful and context-sensitive analysis of
previous probabilistic harm cases would suggest that
their logic should not be extended to challenges to sur-
veillance that is not actual or certainly impending, but
                            186a

instead only feared. As Judge Raggi’s dissent high-
lights, all the previous cases cited by the panel in which
standing has been granted based on the risk of a future
probabilistic injury have involved plaintiffs who had
established that they were subject to the conduct they
were challenging, with the only uncertainty being
whether harm would ultimately result from the conduct
in question. See Raggi, J., Op. at 17-23; see also Laid-
law, 528 U.S. at 184 (“[I]t is undisputed that Laidlaw’s
unlawful conduct—discharging pollutants in excess of
permit limits—was occurring at the time the complaint
was filed. . . . [T]he only ‘subjective’ issue here is ‘[t]he
reasonableness of [the] fear’ that led the affiants to re-
spond to that concededly ongoing conduct . . . .” (final
two alterations in original)). None involved uncertainty
as to whether the plaintiffs were in fact subject to the
challenged 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 in
the context of environmental harms. See Summers, 129
S. Ct. at 1152 (rejecting organizational standing even
though it was “possible—perhaps even likely” that a
member of the plaintiff organization used an area of the
National Forest System affected by a challenged activ-
ity but no member established that they did in fact use
an 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 simply
be impossible, based on the limits of scientific capacity
or human understanding, to know whether, for example,
certain allegedly polluting activity to which would-be
plaintiffs are clearly subject will in the future inflict
harmful effects on them. Here, the plaintiffs’ communi-
                           187a

cations either are or are not being intercepted. The
plaintiffs sought no discovery as to standing, despite the
fact that it was their burden to show actual or immi-
nently threatened harm. To the extent plaintiffs cannot
establish the fact of surveillance either way, this is a
product of: (1) the judgment of our coordinate branches
(based no doubt on their own “realistic understanding of
the world,” Amnesty Int’l, 638 F.3d at 139) that foreign
intelligence surveillance must be conducted in secrecy in
order for it to be effective in safeguarding the national
security; and (2) plaintiffs’ own election not to seek dis-
covery as to standing, and thereafter to overcome (if
able) any objections to such discovery, including the ap-
plication of the state secrets privilege, should it have
been 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 withhold
information from discovery when disclosure would be
inimical 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 offer
any such justification by ignoring the context-sensitive
nature of the “probabilistic harm” standing cases alto-
gether.
                          * * *
    The standing requirement is designed to “maintain[]
the public’s confidence in an unelected but restrained
Federal 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, which
is to redress or prevent actual or imminently threatened
                           188a

injury to persons caused by private or official violation
of 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 ensure
that the alleged injury is not too speculative for Article
III 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 quotation
marks omitted). The breaking point has been reached
in 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 standing
here) the panel need not have decided whether an “ob-
jectively reasonable” threat of future surveillance was
sufficient for Article III standing. Its conclusion never-
theless that such a risk does qualify as injury in fact,
however, represents a truly dramatic and unjustified
expansion of this Court’s probabilistic harm cases to the
inapposite context of government surveillance. By al-
lowing a sweeping facial constitutional challenge to a
statute that merely sets out the manner in which the
executive branch can conduct certain types of foreign
surveillance, based purely on a purported increased
threat of surveillance and self-inflicted costs arising out
of this asserted fear, the panel ignores the animating
concerns of the standing requirement and threatens
without justification to transform our existing doctrine
regarding claims of future harm. It is a step without
                            189a

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


DENNIS JACOBS, Chief Judge, dissenting from the denial
of rehearing in banc:
   I concur in Judge Raggi’s and Judge Livingston’s
scholarly dissents. I would also subscribe to Judge
Koeltl’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 its
impact is on the threshold standing issue only and that
it has no bearing on the merits. See Amnesty Int’l USA
v. Clapper, 638 F.3d 118, 121, 131, 143 n.26, 145 (2d Cir.
2011). I take the opinion on those terms. The panel
opinion 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 preliminary
merits review (to determine if the court could ameliorate
some palpable harm to the plaintiffs), is consigned to an
uninformative footnote. It is therefore quite so that the
panel opinion decides nothing about the merits—and
thereby leaves the way clear for dismissal after remand
at 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 merits
that is needed to determine if the challenged statute
                            190a

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 and
redressability, and should therefore have defeated
standing: These plaintiffs and their lawyers are claim-
ing a policy-making role on matters that have no Fourth
Amendment impact on them.

                           * * *
    An assortment of lawyers, journalists and activists,
and organizations representing such people, facially
challenge the constitutionality of § 702 of the Foreign
Intelligence Surveillance Act of 1978 (“FISA”), 50
U.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 for
obtaining warrants to surveil foreign persons abroad,
which has caused the plaintiffs, who are not foreigners,
to develop a reasonable fear of being surveilled when
communicating with foreigners around the world who
are 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 communicate
with their clients or foreign contacts only in person, at
such trouble and expense as to constitute injury that
supports 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 subject
to the government action, the panel opinion identifies a
fourth requirement: a “showing that [the plaintiff] has
altered or ceased conduct as a reasonable response to
                                 191a

the challenged statute.” Clapper, 638 F.3d at 141 (citing
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528
U.S. 167, 184-85 (2000)). The plaintiffs show none of
these.
                                 * * *
    To support the otherwise-mysterious idea of injury
to these plaintiffs (and causation), the panel opinion re-
lies entirely (even credulously) on affidavits submitted
by 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 the
affidavits of the lawyer plaintiffs.1 So evidence about the
non-lawyer plaintiffs (to the extent there is any that
specifies an injury) is irrelevant here. (For some rea-
son, the panel’s mandate nevertheless confers standing
indiscriminately on all the plaintiffs, including the jour-
nalists and various other activists.)
   Among the plaintiffs who submitted affidavits, only
two are lawyers who represent clients. Scott McKay, a
lawyer 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 by
  telephone, 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 mode
  of communication, if one is available, which may require communica-
  tion in person.
Declaration of Prof. Stephen Gillers ¶ 10.
                          192a

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 in
person rather than by telephone or email.” Declaration
of Scott McKay ¶ 8. Of course, that is what every good
lawyer does—on every matter. Sylvia Royce, another
lawyer representing a detainee, specifies only a single
expense she attributes to the FAA: a trip to Manhattan
(not Guantanamo). She avers:
   Where information is both especially important and
   especially sensitive, I have to travel to share infor-
   mation, views and ideas that I would otherwise have
   been able to exchange by telephone or e-mail. Most
   recently, I went to New York City to meet with [a
   French attorney] and another lawyer to talk about
   [my client’s] case, but I also expect to travel abroad
   in the future to meet with co-counsel and I expect to
   exchange information in our meetings in person that
   I would not exchange by telephone or email.
Declaration of Sylvia Royce ¶ 7. Yet (as Judge Raggi
points out) the FAA had nothing to do with her trip to
New York to talk with co-counsel because a call between
points inside the United States could not have been
tapped under the FAA.
    Even if one accepts the truth of these perfunctory
affidavits (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 causal
relation to the FAA. Yet, these affidavits provide the
                           193a

only evidence to support the panel’s ruling as to harm
and causation.
                          * * *
    The remaining standing issue, redressability, is con-
signed to a footnote in the panel opinion, a footnote that
does not explain how a favorable decision in this case
will redress plaintiffs’ supposed injuries. Clapper, 638
F.3d at 140 n.24. Even if the record disclosed specific
instances 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, 493
F.3d 644 (6th Cir. 2007), an opinion that is not answered
head-on by the panel opinion. Any lawyer whose ethical
scruples would now prevent electronic contact with his
foreign clients out of fear of surveillance would have had
to incur the same bother and expense before the FAA,
since the FISA Court has already approved thousands
of warrants. Id . at 670-72. Thus, the plaintiffs (and the
panel opinion) prove too little.
    By the same token, the plaintiffs (and the panel opin-
ion) prove too much. The ethical obligation discussed by
Prof. Gillers (see supra note 1) has nothing to do with
whether 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 to
believe that his or her communications are reasonably
likely 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 on
plaintiffs 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
                                194a

inhibition that allegedly besets the plaintiffs would (if
valid) 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 idea
that, for a foreign person of interest abroad in his own
country, the only risk of surveillance is surveillance by
the United States—as though otherwise persons of in-
terest in Iran, Syria, Bosnia, Sudan and Cuba (not to
mention Russia or Spain) can chatter away confident
that the security services of those countries (and others)
are not listening—as though those places have a Fourth
Amendment to be begin with, and adhere to it more
scrupulously than does the United States. The plain-
tiffs’ affidavits thus betray their buried assumption that
the 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 are
not United States citizens or residents. The FAA imple-
ments this limitation through minimization (procedures
for limiting the information received and retained by
electronic surveillance) and targeting (procedures for
limiting the persons and facilities to be surveilled), and
the 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 with
 subsection (g) contains all the required elements and that the target-
 ing and minimization procedures adopted in accordance with subsec-
                                195a

Since the FAA bars the targeting of individuals in or of
the United States, there can be nothing for the FISA
Court to consider under the Fourth Amendment but
those procedures.
    And as to persons abroad, with whom the plaintiffs
claim to be in communication: “the Fourth Amendment
has no application” to the search of a person of foreign
nationality, outside the United States, with “no volun-
tary attachment” to this country. United States v.
Verdugo-Urquidez, 494 U.S. 259, 274, 275 (1990); see
also In re Terrorist Bombings of U.S. Embassies in E.
Africa, 552 F.3d 157, 171 (2d Cir. 2008) (holding “that
the 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 Fourth
Amendment 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, and
since the Fourth Amendment has no application to their
supposed clients, sources and communicants—who are
foreign persons abroad—and since the only evidence
they proffer of personal inconvenience and expense are
affidavits 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 the
  requirements of those subsections and with the fourth amendment
  to the Constitution of the United States.
50 U.S.C. § 1881a(i)(3)(A) (emphasis added).
                            196a

    At the risk of being obvious, the purpose of this law-
suit is litigation for its own sake—for these lawyers to
claim a role in policy-making for which they were not
appointed or elected, for which they are not fitted by
experience, and for which they are not accountable. As
best I can see, the only purpose of this litigation is for
counsel and plaintiffs to act out their fantasy of persecu-
tion, to validate their pretensions to policy expertise, to
make themselves consequential rather than marginal,
and to raise funds for self-sustaining litigation. In short,
counsel’s and plaintiffs’ only perceptible interest is to
carve out for themselves an influence over government
policy—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 be
redressed by this Court. In part, that is a function of
the frivolous nature of the claim. In that respect, it
bears similarity to a pro se plaintiff ’s allegation that the
CIA is controlling him through a radio embedded in his
molar. But, as to the standing analysis, there is this
difference: The pro se plaintiff is actually suffering, is
truly hoping for redress, and is not bringing suit as a
pretext 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 in
banc 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).

				
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