Some commentators have asked whether Wikimedia and the other plaintiffs in this suit have standing to pursue their claims, in light of the Supreme Court’s 2013 decision in Clapper v. Amnesty International. In Clapper, the ACLU represented plaintiffs in a facial challenge to the constitutionality of the 2008 FISA Amendments Act (FAA) — the same statute the government now invokes to justify the NSA’s upstream surveillance. By a vote of 5–4, the Supreme Court held that the plaintiffs in that case lacked standing to challenge the constitutionality of the FAA. Specifically, the Court reasoned that the plaintiffs had not shown that they had been injured by FAA surveillance, because they couldn’t establish a sufficient likelihood that their communications were being monitored under the statute. The plaintiffs couldn’t make that showing, because the government had refused to disclose, even in the most general terms, how the statute was being used.
Southern Poverty Law Center
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