¹ 50 U.S.C. § 1881a(a) (2012). It provides that “the Attorney General and the Director of National Intelligence may authorize jointly … the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” Id. Google Scholar

² This section was adopted as part of the FISA Amendments Act of 2008, Pub. L. No. 110–261, 122 Stat. 2436 (2008).Google Scholar

³ See Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013). But see A.C.L.U. v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013), vacated, 785 F.3d 787 (2d Cir. 2015) (declining to address the constitutionality of collecting metadata under Section 215 of the PATRIOT Act).Google Scholar

⁴ Clapper v. Amnesty Int'l, 133 S. Ct. 1138, 1156 (2013) (Breyer, J., dissenting) (citing 50 U.S.C. § 1881a(g), in contrast with § 1804(a)).Google Scholar

⁵ 50 U.S.C. § 1881a(b)(5) (2012).Google Scholar

⁶ Such information is defined to include “information with respect to a foreign power or foreign territory that relates to … the conduct of the foreign affairs of the United States.” 50 U.S.C. § 1801(e)(2) (2012).Google Scholar

⁷ Compare id., with 50 U.S.C. § 1802 (2006) (permitting only the narrower surveillance of foreign powers or their agents and required the government to submit an application for every target of surveillance).Google Scholar

⁸ U.S. Const. amend. IV.Google Scholar

⁹ See Katz v. United States, 389 U.S. 347 (1967). This is not to say that the protections afforded to U.S. citizens abroad under the Fourth Amendment are as strong as those provided domestically. See In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157 (2d Cir. 2008) (holding that nonresident citizens benefit only from the Reasonableness Clause, and not the Warrant Clause, of the Fourth Amendment); see also United States v. Stokes, 726 F.3d 880 (7th Cir. 2013) (same).Google Scholar

¹⁰ Privacy & Civil Liberties Oversight Bd., Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 86 (2014), https://www.pclob.gov/library/702-Report.pdf.Google Scholar

¹¹ See Hernandez v. United States, 757 F.3d 249, 265 (5th Cir. 2014) (citing other cases). The Hernandez case took a position that was unusually protective of the constitutional rights of a nonresident alien—holding that Fifth Amendment Due Process rights can be invoked by a “noncitizen injured outside the United States as a result of arbitrary official conduct by a law enforcement officer located in the United States.” Id. at 272. Nonetheless, it still rejected the idea that the Fourth Amendment would apply in those same circumstances. Id. at 263–67.Google Scholar

¹² Cole, David, We Kill People Based on Metadata, N.Y. Review of Books Blog (May 10, 2014), http://www.nybooks.com/blogs/nyrblog/2014/may/10/we-kill-people-based-metadata/.Google Scholar

¹³ Cole, David, We Are All Foreigners: NSA Spying and the Rights of Others, Just Security Blog (Oct. 29, 2013), http://justsecurity.org/2668/foreigners-nsa-spying-rights/#more-2668.Google Scholar

¹⁴ See Margulies, Peter, The NSA in Global Perspective: Surveillance, Human Rights, and International Counterterrorism, 82 Fordham L. Rev. 2137, 2138 (2014) (citing U.S. Dep't of State, Second and Third Periodic Reports of the United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights, annex I (2005), available at http://www.state.gov/j/drl/rls/55504.htm#annex1). It is noteworthy that the Obama administration seems to be breaking with the Bush administration on this point. Harold Koh, while serving as Legal Advisor to the State Department, authored a memorandum rejecting that reading and suggesting instead that the United States is obligated to respect the terms of the ICCPR wherever it has “effective control of the person or context at issue.” U.S. Dep't of State, Memorandum Opinion on the Geographic Scope of the International Covenant on Civil and Political Rights (2010), available at http://www.documentcloud.org/documents/1053853-state-department-iccpr-memo.html. More recently, in November 2014, with regard to the Torture Convention, the Obama administration stated to the United Nations treaty-monitoring committee in Geneva, Switzerland, that it “covers all areas under U.S. jurisdiction and territory that the United States ‘controls as a governmental authority,’ including the prison at Guantanamo Bay, Cuba and ‘with respect to U.S.-registered ships and aircraft.'” Karen DeYoung, Obama Administration Endorses Treaty Banning Torture, Wash. Post, Nov. 12, 2014 (quoting Acting State Department legal adviser, Mary E. McLeod). Interestingly, the Obama administration still has not taken the position that the treaty applies wherever the United States exercises effective control over persons. In that regard, it still sees itself as less restricted than the norm adopted by the UN treaty bodies, which “have interpreted jurisdiction in terms of a state's exercise of control over either persons or places.” Sarah Cleveland, Embedded International Law and the Constitution Abroad, 110 Colum. L. Rev. 225, 251 (2010) (emphasis added).Google Scholar

¹⁵ See Sloss, David, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int'l L. 129, 131 (1999).Google Scholar

¹⁶ See generally Bush, Boumediene v., 553 U.S. 723 (2008) (declaring the Military Commissions Act of 2006, Pub. L. No. 109–366, § 950p, 120 Stat. 2600 (2006), unconstitutional insofar as it stripped the nonresident aliens detained in the military base in Guantanamo Bay, Cuba of their statutory habeas rights).Google Scholar

¹⁷ Graham v. Richardson, 403 U.S. 365, 372 (1971) (quoting United States v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 (1938)). The Court afterwards carved out a “public function” exception to the use of strict scrutiny of laws that treat aliens unequally. Michael Scaperlanda, Partial Membership: Aliens and the Constitutional Community, 81 Iowa L. Rev. 707, 736 (1996). It would not apply to Fourth Amendment rights.Google Scholar

¹⁸ Cole, David, Rights Over Borders: Transnational Constitutionalism and Guantanamo Bay, 2008 Cato Sup. Ct. Rev. 47, 60 (2008) (citing David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2005) and John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980)). More specifically, in the privacy rights context, Cole has also pointed out that “Congress is far less motivated to do anything about the NSA's abuse of the rights of foreign nationals [than the rights of U.S. citizens]. They are ‘them,’ not ‘us.’ They don't vote.” Cole, supra note 12.Google Scholar

¹⁹ See Kent, J. Andrew, A Textual and Historical Case Against a Global Constitution, 95 Geo. L.J. 463, 540 (2007) (explaining that the traditional answer to the worry that nonresident aliens may be abused by the United States is that “aliens abroad [have been] understood to be protected by international law, diplomacy, and policy set by Congress and the President”); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 275 (1990) (“If there are to be restrictions on searches and seizures which occur incident to … American action [abroad], they must be imposed by the political branches through diplomatic understanding, treaty, or legislation.”).Google Scholar

²⁰ See Landler, Mark, Merkel Signals That Tension Persists Over U.S. Spying, N.Y. Times, May 2, 2014 (noting that German Chancellor Angela Merkel indicated “that Germany still had significant differences with the United States over surveillance practices and that it was too soon to return to ‘business as usual.'”).Google Scholar

²¹ Office of the Press Sec'y, Presidential Policy Directive/PPD-28 1 (2014), http://fas.org/irp/offdocs/ppd/ppd-28.pdf.Google Scholar

²² Id. at 2.Google Scholar

²³ Id. Google Scholar

²⁴ Id. at 5.Google Scholar

²⁵ Id. Google Scholar

²⁶ Id. at 6.Google Scholar

²⁷ How impressive it is depends on how well one thinks privacy rights are protected under Executive Order 12333. For a critical view, see Tye, John Napier, Meet Executive Order 12333: The Reagan Rule That Lets the NSA Spy on Americans, Wash. Post, July 18, 2014. It also depends on how much wiggle room is permitted, given the qualification: “[T]o the maximum extent feasible consistent with national security.” This qualification could “eat the rule,” so that it falls a good deal short of a reasonable Fourth Amendment balance. On the other hand, the Fourth Amendment notion of reasonableness has to take security into account as well. See infra Part E. Therefore, the Presidential Directive and the Fourth Amendment might not come apart.Google Scholar

²⁸ Wittes, Benjamin, The President's Speech and PPD-28: A Guide for the Perplexed, Lawfare Blog (Jan. 20, 2014), https://www.lawfareblog.com/presidents-speech-and-ppd-28-guide-perplexed.Google Scholar

²⁹ Id. Google Scholar

³⁰ Importantly, though there is legislation in Congress to reform NSA spying, it does not address section 702. See USA Freedom Act, H.R. 3361, 113th Cong. (2014).Google Scholar

³¹ Standing may also prove to be a practical barrier preventing nonresident aliens from getting access to the courts to challenge Section 702. See infra Part F.Google Scholar

³² Kumm, Mattias, The Cosmopolitan Turn in Constitutionalism: An Integrated Conception of Public Law, 20 Ind. J. Global Legal Stud. 605, 613 (2013).Google Scholar

³³ This sort of intolerance for submitting state action to a neutral judicial body has a long history in the United States. U.S. Const. art. Ill, § 2 gave citizens of one state the ability to seek a neutral forum, in a federal court, in which to pursue their claims against another state. The 11th Amendment, adopted in 1795, removed that basis for federal court jurisdiction.Google Scholar

³⁴ Walen, Alec, Constitutional Rights for Nonresident Aliens, Drexel L. Rev. (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2533579.Google Scholar

³⁵ Bush, Boumediene v., 553 U.S. 723 (2008).Google Scholar

³⁶ The “suggestion” that privacy concerns and Fourth Amendment rights are among the “fundamental” rights against unjust harm that must apply outside core U.S. territory goes back to Downes v. Bidwell, 182 U.S. 244, 282-83 (1901) (listing among the “natural rights enforced by the Constitution” “immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and … such other immunities as are indispensable to a free government”).Google Scholar

³⁷ See Cuddihy, William J., The Fourth Amendment: Origins and Original Meaning 766 (2009) (“Privacy was the bedrock concern of the amendment, not general warrants.”); see also Maclin, Tracey & Mirabella, Julia, Framing the Fourth, 109 Mich. L. Rev. 1049, 1062 (2011) (summarizing Cuddihy's position as holding that “privacy was at the forefront of the Framers’ thinking and should be in our minds as we encounter new Fourth Amendment cases”).Google Scholar

³⁸ Olmstead v. United States, 277 U.S. 438, 466 (1928) (holding that Fourth Amendment protections did not apply “unless there has been an official search and seizure of his person or such a seizure of his papers or his tangible material effects or an actual physical invasion of his house ‘or curtilage’ for the purpose of making a seizure”).Google Scholar

³⁹ Katz v. United States, 389 U.S. 347 (1967).Google Scholar

⁴⁰ Id. at 351.Google Scholar

⁴¹ Id. at 360. This framing has since become generally accepted.Google Scholar

⁴² Olmstead, 277 U.S. at 475 n.3 (quoting In re Pacific Ry. Commission, 32 F. 241, 250 (C.C.N.D. Cal. 1887)).Google Scholar

⁴³ Id. at 478; see also Maclin, Tracey, The Central Meaning of the Fourth Amendment, 35 Wm. & Mary L. Rev. 197, 230 (1993) (“Even the most ardent foe of a broad interpretation of civil liberties is hard pressed to deny that the Fourth Amendment ranks as a fundamental right deserving strict judicial protection.”).Google Scholar

⁴⁴ Daniel J. Solove lists six “general headings, which capture the recurrent ideas in the discourse.” Daniel J. Solove, Conceptualizing Privacy, 90 Cal. L. Rev. 1087, 1092 (2002). As he acknowledges, they are a mix of “means to achieve privacy [and] ends or goals of privacy.” Id. I think his list can be usefully boiled down to the two interests listed in the text.Google Scholar

⁴⁵ This is just one way of distinguishing the underlying concerns. I make no claim that it is the best way to identify the harms.Google Scholar

⁴⁶ See Nagel, Thomas, Concealment and Exposure & Other Essays 4 (2002) (arguing for the importance of concealment, or a private space, “as a condition of civilization”).Google Scholar

⁴⁷ Both this and the first harm can also be understood in terms of dignitary harms. See Solove, Daniel J., A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477, 487 (2006).Google Scholar

⁴⁸ Id. at 525.Google Scholar

⁴⁹ See Sacharoff, Laurent, The Relational Nature of Privacy, 16 Lewis & Clark L. Rev. 1249 (2012) (discussing many examples of government violating privacy rights in order to harass or intimidate its critics and opponents); see also Husak, Doug, Overcriminalization: The Limits of the Criminal Law (2008) (pointing out how vulnerable most people are to such harassment and intimidation: “Perhaps over 70% of living adult Americans have committed an imprisonable offense at some point in their life”).Google Scholar

⁵⁰ These worries explain one of the restrictions President Obama put on the collection of signals intelligence in PPD-28:Google Scholar

Office of the Press Sec'y, supra note 21, at 3.Google Scholar

⁵¹ Landler, supra note 20.Google Scholar

⁵² See 50 U.S.C. § 1881b(c)(1)(B)(ii) (2006) (permitting the collection of foreign intelligence information upon a finding of probable cause that the target is “a foreign power, an agent of a foreign power, or an officer or employee of a foreign power”).Google Scholar

⁵³ It is a separate question whether the definition of an agent of a foreign power is too broad.Google Scholar

⁵⁴ 50 U.S.C. § 1801(e)(2) (2012).Google Scholar

⁵⁵ Supra notes 21–26 and accompanying text.Google Scholar

⁵⁶ Margulies, supra note 14, at 2159.Google Scholar

⁵⁷ Germany, Weber v., 2006 XI Eur. Ct. H.R. 309.Google Scholar

⁵⁸ A similar argument could be mounted if proposed French legislation expanding the surveillance power of the French government goes into effect and is upheld by the European Court of Human Rights. See Rubin, Alissa, Lawmakers in France Move to Vastly Expand Surveillance, N.Y. Times, May 4, 2015.Google Scholar

⁵⁹ Wittes denies this, but as noted already, he presupposes not only a dovetailing of good signals intelligence practices and respect for privacy, but also that the executive branch would reliably follow good signals intelligence practice. There is reason to doubt this. See Wittes, supra notes 28 and accompanying text; see also USA Freedom Act, H.R. 3361, 113th Cong. (2014).Google Scholar

⁶⁰ Schwartz, Paul M., German and U.S. Telecommunications Privacy Law: Legal Regulation of Domestic Law Enforcement Surveillance, 54 Hastings L.J. 751, 782 (2003).Google Scholar

⁶¹ United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990).Google Scholar

⁶² See id. at 279 (“I do not believe the Warrant Clause has any application to searches of noncitizens’ homes in foreign jurisdictions because American magistrates have no power to authorize such searches.”); id. at 297 (“I agree with the Government, however, that an American magistrate's lack of power to authorize a search abroad renders the Warrant Clause inapplicable to the search of a noncitizen's residence outside this country.”).Google Scholar

⁶³ Id. at 278. Justice Harlan, who coined the test, used the phase “impracticable and anomalous.” Reid v. Covert, 354 U.S. 1 (1957) (emphasis added). But it makes more sense for either prong to suffice for holding that people do not enjoy a constitutional right in a particular context.Google Scholar

⁶⁴ Verdugo-Urquidez, 494 U.S. at 275.Google Scholar

⁶⁵ Id. at 265.Google Scholar

⁶⁶ Id. at 276.Google Scholar

⁶⁷ District of Columbia v. Heller, 554 U.S. 570, 580 (2008).Google Scholar

⁶⁸ Id. at 581.Google Scholar

⁶⁹ United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).Google Scholar

⁷⁰ U.S. Const. amend. X.Google Scholar

⁷¹ See Neuman, Gerald L., Whose Constitution, 100 Yale L. J. 909, 972 n.380 (1991) (describing the gap between Justice Rehnquist's reading of “the people” and its use in both the Tenth Amendment and the Preamble to the Constitution).Google Scholar

⁷² 18 U.S.C. § 922(g)(5) (2012).Google Scholar

⁷³ Verdugo-Urquidez, 494 U.S. at 265.Google Scholar

⁷⁴ See, for example, the petitioner in United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. 2012). He was brought to the United States from Mexico at age three and was prosecuted for violation of 18 U.S.C. § 922(g)(5) at age twenty-four. Id. at 1165.Google Scholar

⁷⁵ United States v. Portillo-Munoz, 643 F.3d 437, 440-41 (5th Cir. 2011).Google Scholar

⁷⁶ Kent, supra note 19, at 515.Google Scholar

⁷⁷ Id. Google Scholar

⁷⁸ Id. at 515–16. Another interesting example: “The Constitution refers to a ‘person’ accused of treason, but plainly this term cannot comprehend aliens abroad with no prior connection to the United States.” Id. at 514.Google Scholar

⁷⁹ United States v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990).Google Scholar

⁸⁰ See Walen, supra note 34, Part I.C.Google Scholar

⁸¹ Indeed, early cases show that the U.S. was particularly concerned to respect international law and thereby demonstrate that it was an upstanding member of the international community. See Henfield's Case, 11 F. Cas. 1099, para. 5 (C.C.D. Pa. 1793) (“Providence has been pleased to place the United States among the nations of the earth, and therefore, all those duties, as well as rights, which spring from the relation of nation to nation, have devolved upon us.”).Google Scholar

⁸² See also Walen, supra note 34, Part II.A (discussing the limited relevance of the original understanding of the reach of the Constitution).Google Scholar

⁸³ Verdugo-Urquidez, 494 U.S. at 267.Google Scholar

⁸⁴ Id. Google Scholar

⁸⁵ The point is quite consistent with the reading of Johnson v. Eisentrager, 339 U.S. 763 (1950), according to which that holding rejected Fifth Amendment rights only of nonresident enemy aliens, not nonresident aliens, per se. See Walen, supra note 34, Part I.A.Google Scholar

⁸⁶ See Neuman, supra note 71, at 973 (“If these data suggest anything, however, it is that no one has Fourth Amendment rights outside the nation's borders ….”).Google Scholar

⁸⁷ Carroll v. United States, 267 U.S. 132, 154 (1925).Google Scholar

⁸⁸ In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157 (2d Cir. 2008); United States v. Stokes, 726 F.3d 880 (7th Cir. 2013).Google Scholar

⁸⁹ 339 U.S. 763 (1950) (holding that German nationals, convicted by a U.S. military tribunal of war crimes and imprisoned in an U.S Army base in Germany, had no Fifth Amendment due process rights, and right to habeas corpus).Google Scholar

⁹⁰ United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990).Google Scholar

⁹¹ See supra notes 71–78 and accompanying text.Google Scholar

⁹² Id. Google Scholar

⁹³ See also Walen, supra note 34, Part I.A. The rejection of Rehnquist's reading of Eisentrager by the Court in Boumediene also covers the next two arguments that Rehnquist makes. First, he writes: “Since respondent is not a United States citizen, he can derive no comfort from the Reid holding.” Verdugo-Urquidez, 494 U.S. at 270. That too was rejected in Boumediene. Second, he writes: The cases that hold that aliens have constitutional rights cannot help the respondent, because he “had no previous significant voluntary connection with the United States.” Id. at 271. That emphasis on a “previous significant voluntary connection” was also rejected in Boumediene. Google Scholar

⁹⁴ Rehnquist deployed one other argument that is so weak that I mention it only in this note. He claimed that the Insular Cases reject the “view that every constitutional provision applies wherever the United States Government exercises its power.” Id. at 269. But the contention that the Fourth Amendment's prohibition of unreasonable searches and seizures applies to nonresident aliens does not depend on the claim that “every constitutional provision applies wherever the United States Government exercises its power.” Id. Google Scholar

⁹⁵ Bush, Boumediene v., 553 U.S. 723, 759 (2008); see also Walen, supra note 34, Part I.C.Google Scholar

⁹⁶ United States v. Verdugo-Urquidez, 494 U.S. 259, 273-74 (1990).Google Scholar

⁹⁷ Id. at 274.Google Scholar

⁹⁸ See 50 U.S.C. § 1801(a)(4) (2012) (defining a foreign power to include “a group engaged in international terrorism or activities in preparation therefor”).Google Scholar

⁹⁹ Thus activity under FISA, 50 U.S.C. § 1802, permitting the targeting of foreign powers or their agents, would be upheld.Google Scholar

¹⁰⁰ Verdugo-Urquidez, 494 U.S. at 278.Google Scholar

¹⁰¹ Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring).Google Scholar

¹⁰² Id. at 351.Google Scholar

¹⁰³ Poscher, Ralf & Miller, Russell, Surveillance and Data Protection in the Conflict Between European and American Legal Cultures, Am. Inst. for Contemporary German Studies (Dec. 9, 2013), http://www.aicgs.org/issue/surveillance-and-data-protection-in-the-conflict-between-european-and-american-legal-cultures/.Google Scholar

¹⁰⁴ One might again—see Rubin, supra note 58—bring up the French example of moving to expand the surveillance powers of the state to challenge the claim that this sense of privacy is European-wide. One might argue, that is, that the French must have a less robust sense of privacy. But this does not follow. The French might simply feel more vulnerable to terrorism, and thus see a more compelling reason to sacrifice privacy for security. Moreover, it is not clear that the bill passed in the lower house in the French Parliament will survive the strong opposition to it to become law.Google Scholar

¹⁰⁵ See infra Part E.Google Scholar

¹⁰⁶ Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).Google Scholar

¹⁰⁷ Illinois v. Caballes, 543 U.S. 405 (2005).Google Scholar

¹⁰⁸ Kyllo v. United States, 533 U.S. 27 (2001).Google Scholar

¹⁰⁹ California v. Ciraolo, 476 U.S. 207 (1986); Florida v. Riley, 488 U.S. 445 (1989).Google Scholar

¹¹⁰ Bond v. United States, 529 U.S. 334 (2000).Google Scholar

¹¹¹ Hoffa v. United States, 385 U.S. 293 (1966); United States v. White, 401 U.S. 745 (1971).Google Scholar

¹¹² Katz v. United States, 389 U.S. 347 (1967).Google Scholar

¹¹³ See Kerr, Orin, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007) (arguing that it is not that the Court has no principles, but that it has conflicting models that is uses differently, to fit different contexts).Google Scholar

¹¹⁴ The idea that these lines are there—not just to reflect societal expectations of privacy, but to help set them—explains why the Court has never addressed whether certain subcultures, with different expectations of privacy, do not deserve different standards for constitutionally protected privacy interests. Different standards would undermine the law's function in setting reasonable expectations.Google Scholar

¹¹⁵ This is the sort of utility emphasized by Kerr, supra note 113.Google Scholar

¹¹⁶ Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (internal quotation marks omitted).Google Scholar

¹¹⁷ See supra Part B.I.Google Scholar

¹¹⁸ See Walen, supra note 34.Google Scholar

¹¹⁹ See supra notes 17–19 and accompanying text.Google Scholar

¹²⁰ Clapper v. Amnesty Int'l, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks omitted).Google Scholar

¹²¹ Id. at 1145.Google Scholar

¹²² Id. at 1155.Google Scholar

¹²³ Plaintiffs had a second theory of standing, namely that their reasonable fear that their communications would be intercepted “require[d] them to take costly and burdensome measures to protect the confidentiality of their communications.” Id. at 1151. But the Court held that accommodating speculative fears could not provide a back door to standing. Id. Google Scholar

¹²⁴ Id. at 1154. It is worth noting that federal prosecutors seem not to be respecting this claim by the Supreme Court, based in turn on assurances from the Solicitor General. In at least two cases, they have sought not to divulge whether information used in obtaining warrants was “derived from” FISA activity under Section 702. See Liptak, Adam, A Secret Surveillance Program Proves Challengeable in Theory Only, N.Y. Times, July 15, 2013.Google Scholar

¹²⁵ See Klayman v. Obama, 957 F.Supp. 2d 1, 27 (D.D.C. 2013) (finding standing based on facts revealed by Edward Snowden). Note, however, that as this case continues on towards summary judgment, the government is still contesting the standing issue.Google Scholar

¹²⁶ Clapper v. Amnesty Int'l, 133 S. Ct. 1138, 1150 (2013).Google Scholar

¹²⁷ Id. Google Scholar

¹²⁸ Id. at 1147 (quoting Raines v. Byrd, 521 U.S. 811, 819-20 (1997)).Google Scholar

¹²⁹ Id. Google Scholar

¹³⁰ Id. Google Scholar

¹³¹ Id. at 1149.Google Scholar

¹³² Tye, supra note 27.Google Scholar

¹³³ See Office of the Press Sec'y, supra note 21.Google Scholar

¹³⁴ See Office of the Press Sec'y, FACT SHEET: The Administration's Proposal for Ending the Section 215 Bulk Telephony Metadata Program, The White House (March 27, 2014), http://www.whitehouse.gov/the-press-office/2014/03/27/fact-sheet-administration-s-proposal-ending-section-215-bulk-telephony-m.Google Scholar

¹³⁵ Plaintiffs’ Reply to the Defendants’ Opposition in Opposition to Plaintiffs’ Motion for Partial Summary Judgment, Klayman v. Obama II, 957 F. Supp. 1 (No. 13CV00851), 2014 WL 2452492.Google Scholar

¹³⁶ Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000).Google Scholar

¹³⁷ U.S. v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968).Google Scholar

¹³⁸ It is worth keeping in mind how radical it once seemed that the Affordable Care Act could face a serious constitutional challenge, and then it came within one vote of succeeding. This case is, I believe, stronger than that one.Google Scholar