U.S. v. JONES 945 Cite as 132 S.Ct. 945 (2012) · 2019-06-28 · U.S. v. JONES 945 Cite as 132 S.Ct. 945 (2012) lack of preclearance under § 5 of the Vot-ing Rights Act of 1965

945U.S. v. JONESCite as 132 S.Ct. 945 (2012)

lack of preclearance under § 5 of the Vot-ing Rights Act of 1965. Ante, at 939 – 940.In my view, Texas’ failure to timely obtain§ 5 preclearance of its new plans is noobstacle to their implementation, because,as I have previously explained, § 5 is un-constitutional. See Northwest Austin Mu-nicipal Util. Dist. No. One v. Holder, 557U.S. 193, 212, 129 S.Ct. 2504, 174 L.Ed.2d140 (2009) (THOMAS, J., concurring injudgment in part and dissenting in part).Although Texas’ new plans are being chal-lenged on the grounds that they violate theFederal Constitution and § 2 of the VotingRights Act, they have not yet been foundto violate any law. Accordingly, Texas’duly enacted redistricting plans shouldgovern the upcoming elections. I wouldtherefore vacate the interim orders andremand for the United States DistrictCourt for the Western District of Texas toconsider appellees’ constitutional and § 2challenges in the ordinary course.

,

UNITED STATES, Petitioner

v.

Antoine JONES.No. 10–1259.

Argued Nov. 8, 2011.

Decided Jan. 23, 2012.

Background: Following denial of motionto suppress evidence, 451 F.Supp.2d 71,and denial of motion for reconsideration,511 F.Supp.2d 74, defendants were con-victed in the United States District Courtfor the District of Columbia, Huvelle, J., ofconspiracy to distribute and to possesswith intent to distribute five kilograms ormore of cocaine and 50 grams or more of

cocaine base. They appealed. The UnitedStates Court of Appeals for the District ofColumbia, Ginsburg, Circuit Judge, 615F.3d 544, reversed. Certiorari was grant-ed.

Holding: The Supreme Court, JusticeScalia, held that attachment of Global–Positioning–System (GPS) tracking deviceto vehicle, and subsequent use of that de-vice to monitor vehicle’s movements onpublic streets, was search within meaningof Fourth Amendment.

Affirmed.

Justice Sotomayor filed concurring opin-ion.

Justice Alito filed opinion concurring in thejudgment, in which Justices Ginsburg,Breyer, and Kagan joined.

1. Searches and Seizures O60.1

Vehicle is an ‘‘effect’’ as that term isused in Fourth Amendment, which pro-vides that ‘‘[t]he right of the people to besecure in their persons, houses, papers,and effects, against unreasonable searchesand seizures, shall not be violated.’’U.S.C.A. Const.Amend. 4.

See publication Words and Phras-es for other judicial constructionsand definitions.

2. Searches and Seizures O21

Government’s installation of Global–Positioning–System (GPS) tracking deviceon target’s vehicle, and its use of thatdevice to monitor vehicle’s movements,constitutes a ‘‘search,’’ within meaning ofFourth Amendment. U.S.C.A. Const.Amend. 4.


3. Searches and Seizures O26

In determining what constitutessearch, Supreme Court must assure pres-

946 132 SUPREME COURT REPORTER

ervation of that degree of privacy againstgovernment that existed when FourthAmendment was adopted. U.S.C.A.Const.Amend. 4.

4. Searches and Seizures O13.1Where Government obtains informa-

tion by physically intruding on constitu-tionally protected area, ‘‘search’’ withinoriginal meaning of Fourth Amendmenthas occurred. U.S.C.A. Const.Amend. 4.

5. Searches and Seizures O13.1Under Fourth Amendment, ‘‘seizure’’

of property occurs, not when there is atrespass, but when there is some meaning-ful interference with an individual’s posses-sory interests in that property. U.S.C.A.Const.Amend. 4.


6. Searches and Seizures O13.1Trespass alone does not qualify as a

‘‘search,’’ under Fourth Amendment, rath-er, it must be conjoined with attempt tofind something or to obtain information.U.S.C.A. Const.Amend. 4.

7. Searches and Seizures O27Open field is not one of those protect-

ed areas enumerated in Fourth Amend-ment. U.S.C.A. Const.Amend. 4.

8. Searches and Seizures O23Fourth Amendment’s guarantee

against unreasonable searches must pro-vide at a minimum the degree of protec-tion it afforded when it was adopted.U.S.C.A. Const.Amend. 4.

9. Federal Courts O461Government’s alternative argument,

that even if attachment of Global–Position-ing–System (GPS) tracking device to vehi-

cle and use of the device was a search, itwas reasonable, was forfeited, where Gov-ernment did not raise argument below, sothat Court of Appeals did not address it.U.S.C.A. Const.Amend. 4.

Syllabus *

The Government obtained a searchwarrant permitting it to install a Global–Positioning–System (GPS) tracking deviceon a vehicle registered to respondentJones’s wife. The warrant authorized in-stallation in the District of Columbia andwithin 10 days, but agents installed thedevice on the 11th day and in Maryland.The Government then tracked the vehicle’smovements for 28 days. It subsequentlysecured an indictment of Jones and otherson drug trafficking conspiracy charges.The District Court suppressed the GPSdata obtained while the vehicle was parkedat Jones’s residence, but held the remain-ing data admissible because Jones had noreasonable expectation of privacy when thevehicle was on public streets. Jones wasconvicted. The D.C. Circuit reversed, con-cluding that admission of the evidence ob-tained by warrantless use of the GPS de-vice violated the Fourth Amendment.

Held: The Government’s attachmentof the GPS device to the vehicle, and itsuse of that device to monitor the vehicle’smovements, constitutes a search under theFourth Amendment. Pp. 948 – 954.

(a) The Fourth Amendment protectsthe ‘‘right of the people to be secure intheir persons, houses, papers, and effects,against unreasonable searches and sei-zures.’’ Here, the Government’s physicalintrusion on an ‘‘effect’’ for the purpose ofobtaining information constitutes a‘‘search.’’ This type of encroachment on

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


an area enumerated in the Amendmentwould have been considered a search with-in the meaning of the Amendment at thetime it was adopted. Pp. 948 – 949.

(b) This conclusion is consistent withthis Court’s Fourth Amendment jurispru-dence, which until the latter half of the20th century was tied to common-law tres-pass. Later cases, which have deviatedfrom that exclusively property-based ap-proach, have applied the analysis of JusticeHarlan’s concurrence in Katz v. UnitedStates, 389 U.S. 347, 88 S.Ct. 507, 19L.Ed.2d 576, which said that the FourthAmendment protects a person’s ‘‘reason-able expectation of privacy,’’ id., at 360, 88S.Ct. 507. Here, the Court need not ad-dress the Government’s contention thatJones had no ‘‘reasonable expectation ofprivacy,’’ because Jones’s Fourth Amend-ment rights do not rise or fall with theKatz formulation. At bottom, the Courtmust ‘‘assur[e] preservation of that degreeof privacy against government that existedwhen the Fourth Amendment wasadopted.’’ Kyllo v. United States, 533 U.S.27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94.Katz did not repudiate the understandingthat the Fourth Amendment embodies aparticular concern for government tres-pass upon the areas it enumerates. TheKatz reasonable-expectation-of-privacytest has been added to, but not substitutedfor, the common-law trespassory test. SeeAlderman v. United States, 394 U.S. 165,176, 89 S.Ct. 961, 22 L.Ed.2d 176; Soldalv. Cook County, 506 U.S. 56, 64, 113 S.Ct.538, 121 L.Ed.2d 450. United States v.Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75L.Ed.2d 55, and United States v. Karo, 468U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530—post-Katz cases rejecting Fourth Amend-ment challenges to ‘‘beepers,’’ electronictracking devices representing anotherform of electronic monitoring—do not fore-close the conclusion that a search occurredhere. New York v. Class, 475 U.S. 106,

106 S.Ct. 960, 89 L.Ed.2d 81, and Oliver v.United States, 466 U.S. 170, 104 S.Ct.1735, 80 L.Ed.2d 214, also do not supportthe Government’s position. Pp. 949 – 954.

(c) The Government’s alternative ar-gument—that if the attachment and use ofthe device was a search, it was a reason-able one—is forfeited because it was notraised below. P. 954.

615 F.3d 544, affirmed.

SCALIA, J., delivered the opinion ofthe Court, in which ROBERTS, C.J., andKENNEDY, THOMAS, andSOTOMAYOR, JJ., joined.SOTOMAYOR, J., filed a concurringopinion. ALITO, J., filed an opinionconcurring in the judgment, in whichGINSBURG, BREYER, and KAGAN, JJ.,joined.

Michael R. Dreeben, Washington, DC,for Petitioner.

Stephen C. Leckar, for Respondent.

Donald B. Verrilli, Jr., Solicitor General,Counsel of Record, Department of Justice,Washington, DC, for United States.

Walter Dellinger, Jonathan D. Hacker,Micah W.J. Smith, O’Melveny & MyersLLP, Washington, DC, Stephen C. Leckar,Counsel of Record, Shainis & Peltzman,Chartered, Washington, DC, for Respon-dent.

Donald B. Verrilli, Jr., Solicitor General,Counsel of Record, Lanny A. Breuer, As-sistant Attorney General, Michael R. Dree-ben, Deputy Solicitor General, Ann O’Con-nell, Assistant to the Solicitor General, J.Campbell Barker, Attorney, Departmentof Justice, Washington, DC, for UnitedStates.

For U.S. Supreme Court Briefs, See:

2011 WL 3561881 (Pet.Brief)


2011 WL 4479076 (Resp.Brief)

2011 WL 5094951 (Reply.Brief)

Justice SCALIA delivered the opinion ofthe Court.

We decide whether the attachment of aGlobal–Positioning–System (GPS) trackingdevice to an individual’s vehicle, and subse-quent use of that device to monitor thevehicle’s movements on public streets, con-stitutes a search or seizure within themeaning of the Fourth Amendment.

I

In 2004 respondent Antoine Jones, own-er and operator of a nightclub in the Dis-trict of Columbia, came under suspicion oftrafficking in narcotics and was made thetarget of an investigation by a joint FBIand Metropolitan Police Department taskforce. Officers employed various investi-gative techniques, including visual surveil-lance of the nightclub, installation of acamera focused on the front door of theclub, and a pen register and wiretap cover-ing Jones’s cellular phone.

Based in part on information gatheredfrom these sources, in 2005 the Govern-ment applied to the United States DistrictCourt for the District of Columbia for awarrant authorizing the use of an electron-ic tracking device on the Jeep Grand Cher-okee registered to Jones’s wife. A war-rant issued, authorizing installation of thedevice in the District of Columbia andwithin 10 days.

On the 11th day, and not in the Districtof Columbia but in Maryland,1 agents in-stalled a GPS tracking device on the un-dercarriage of the Jeep while it wasparked in a public parking lot. Over thenext 28 days, the Government used the

device to track the vehicle’s movements,and once had to replace the device’s bat-tery when the vehicle was parked in adifferent public lot in Maryland. Bymeans of signals from multiple satellites,the device established the vehicle’s locationwithin 50 to 100 feet, and communicatedthat location by cellular phone to a Gov-ernment computer. It relayed more than2,000 pages of data over the 4–week peri-od.

The Government ultimately obtained amultiple-count indictment charging Jonesand several alleged co-conspirators with,as relevant here, conspiracy to distributeand possess with intent to distribute fivekilograms or more of cocaine and 50 gramsor more of cocaine base, in violation of 21U.S.C. §§ 841 and 846. Before trial,Jones filed a motion to suppress evidenceobtained through the GPS device. TheDistrict Court granted the motion only inpart, suppressing the data obtained whilethe vehicle was parked in the garage ad-joining Jones’s residence. 451 F.Supp.2d71, 88 (2006). It held the remaining dataadmissible, because ‘‘ ‘[a] person travelingin an automobile on public thoroughfareshas no reasonable expectation of privacy inhis movements from one place to anoth-er.’ ’’ Ibid. (quoting United States v.Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081,75 L.Ed.2d 55 (1983)). Jones’s trial inOctober 2006 produced a hung jury on theconspiracy count.

In March 2007, a grand jury returnedanother indictment, charging Jones andothers with the same conspiracy. TheGovernment introduced at trial the sameGPS-derived locational data admitted inthe first trial, which connected Jones tothe alleged conspirators’ stash house thatcontained $850,000 in cash, 97 kilograms of

1. In this litigation, the Government has con-ceded noncompliance with the warrant andhas argued only that a warrant was not re-

quired. United States v. Maynard, 615 F.3d

544, 566, n. * (C.A.D.C. 2010).


cocaine, and 1 kilogram of cocaine base.The jury returned a guilty verdict, and theDistrict Court sentenced Jones to life im-prisonment.

The United States Court of Appeals forthe District of Columbia Circuit reversedthe conviction because of admission of theevidence obtained by warrantless use ofthe GPS device which, it said, violated theFourth Amendment. United States v.Maynard, 615 F.3d 544 (2010). The D.C.Circuit denied the Government’s petitionfor rehearing en banc, with four judgesdissenting. 625 F.3d 766 (2010). Wegranted certiorari, 564 U.S. ––––, 131 S.Ct.3064, 180 L.Ed.2d 885 (2011).

II

A

[1, 2] The Fourth Amendment pro-vides in relevant part that ‘‘[t]he right ofthe people to be secure in their persons,houses, papers, and effects, against unrea-sonable searches and seizures, shall not beviolated.’’ It is beyond dispute that a vehi-cle is an ‘‘effect’’ as that term is used inthe Amendment. United States v. Chad-wick, 433 U.S. 1, 12, 97 S.Ct. 2476, 53L.Ed.2d 538 (1977). We hold that theGovernment’s installation of a GPS deviceon a target’s vehicle,2 and its use of thatdevice to monitor the vehicle’s movements,constitutes a ‘‘search.’’

It is important to be clear about whatoccurred in this case: The Governmentphysically occupied private property forthe purpose of obtaining information. Wehave no doubt that such a physical intru-sion would have been considered a

‘‘search’’ within the meaning of the FourthAmendment when it was adopted. Entickv. Carrington, 95 Eng. Rep. 807 (C.P.1765), is a ‘‘case we have described as a‘monument of English freedom’ ‘undoubt-edly familiar’ to ‘every American states-man’ at the time the Constitution wasadopted, and considered to be ‘the trueand ultimate expression of constitutionallaw’ ’’ with regard to search and seizure.Brower v. County of Inyo, 489 U.S. 593,596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)(quoting Boyd v. United States, 116 U.S.616, 626, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).In that case, Lord Camden expressed inplain terms the significance of propertyrights in search-and-seizure analysis:

‘‘[O]ur law holds the property of everyman so sacred, that no man can set hisfoot upon his neighbour’s close withouthis leave; if he does he is a trespasser,though he does no damage at all; if hewill tread upon his neighbour’s ground,he must justify it by law.’’ Entick, su-pra, at 817.

The text of the Fourth Amendment re-flects its close connection to property,since otherwise it would have referred sim-ply to ‘‘the right of the people to be secureagainst unreasonable searches and sei-zures’’; the phrase ‘‘in their persons, hous-es, papers, and effects’’ would have beensuperfluous.

Consistent with this understanding, ourFourth Amendment jurisprudence wastied to common-law trespass, at least untilthe latter half of the 20th century. Kyllov. United States, 533 U.S. 27, 31, 121 S.Ct.2038, 150 L.Ed.2d 94 (2001); Kerr, The

2. As we have noted, the Jeep was registered toJones’s wife. The Government acknowl-edged, however, that Jones was ‘‘the exclusivedriver.’’ Id., at 555, n. * (internal quotationmarks omitted). If Jones was not the ownerhe had at least the property rights of a bailee.The Court of Appeals concluded that the vehi-

cle’s registration did not affect his ability to

make a Fourth Amendment objection, ibid.,and the Government has not challenged that

determination here. We therefore do not

consider the Fourth Amendment significance

of Jones’s status.


Fourth Amendment and New Technolo-gies: Constitutional Myths and the Casefor Caution, 102 Mich. L.Rev. 801, 816(2004). Thus, in Olmstead v. UnitedStates, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed.944 (1928), we held that wiretaps attachedto telephone wires on the public streets didnot constitute a Fourth Amendmentsearch because ‘‘[t]here was no entry ofthe houses or offices of the defendants,’’id., at 464, 48 S.Ct. 564.

Our later cases, of course, have deviatedfrom that exclusively property-based ap-proach. In Katz v. United States, 389 U.S.347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576(1967), we said that ‘‘the Fourth Amend-ment protects people, not places,’’ andfound a violation in attachment of aneavesdropping device to a public telephonebooth. Our later cases have applied theanalysis of Justice Harlan’s concurrence inthat case, which said that a violation oc-curs when government officers violate aperson’s ‘‘reasonable expectation of priva-cy,’’ id., at 360, 88 S.Ct. 507. See, e.g.,Bond v. United States, 529 U.S. 334, 120S.Ct. 1462, 146 L.Ed.2d 365 (2000); Cali-fornia v. Ciraolo, 476 U.S. 207, 106 S.Ct.1809, 90 L.Ed.2d 210 (1986); Smith v.Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61L.Ed.2d 220 (1979).

[3, 4] The Government contends thatthe Harlan standard shows that no searchoccurred here, since Jones had no ‘‘reason-able expectation of privacy’’ in the area ofthe Jeep accessed by Government agents(its underbody) and in the locations of theJeep on the public roads, which were visi-ble to all. But we need not address theGovernment’s contentions, because Jones’sFourth Amendment rights do not rise orfall with the Katz formulation. At bottom,we must ‘‘assur[e] preservation of that de-gree of privacy against government thatexisted when the Fourth Amendment wasadopted.’’ Kyllo, supra, at 34, 121 S.Ct.2038. As explained, for most of our histo-ry the Fourth Amendment was understoodto embody a particular concern for govern-ment trespass upon the areas (‘‘persons,houses, papers, and effects’’) it enumer-ates.3 Katz did not repudiate that under-standing. Less than two years later theCourt upheld defendants’ contention thatthe Government could not introduceagainst them conversations between otherpeople obtained by warrantless placementof electronic surveillance devices in theirhomes. The opinion rejected the dissent’scontention that there was no FourthAmendment violation ‘‘unless the conversa-tional privacy of the homeowner himself isinvaded.’’ 4 Alderman v. United States,

3. Justice ALITO’s concurrence (hereinafterconcurrence) doubts the wisdom of our ap-proach because ‘‘it is almost impossible tothink of late–18th–century situations that areanalogous to what took place in this case.’’Post, at 958 (opinion concurring in judgment).But in fact it posits a situation that is not farafield—a constable’s concealing himself in thetarget’s coach in order to track its move-ments. Ibid. There is no doubt that the infor-mation gained by that trespassory activitywould be the product of an unlawful search—whether that information consisted of theconversations occurring in the coach, or ofthe destinations to which the coach traveled.

In any case, it is quite irrelevant whetherthere was an 18th-century analog. Whatever

new methods of investigation may be devised,our task, at a minimum, is to decide whetherthe action in question would have constituteda ‘‘search’’ within the original meaning of theFourth Amendment. Where, as here, theGovernment obtains information by physical-ly intruding on a constitutionally protectedarea, such a search has undoubtedly oc-curred.

4. Thus, the concurrence’s attempt to recastAlderman as meaning that individuals have a‘‘legitimate expectation of privacy in all con-versations that [take] place under their roof,’’post, at 960, is foreclosed by the Court’s opin-ion. The Court took as a given that the home-owner’s ‘‘conversational privacy’’ had notbeen violated.


394 U.S. 165, 176, 89 S.Ct. 961, 22 L.Ed.2d176 (1969). ‘‘[W]e [do not] believe thatKatz, by holding that the Fourth Amend-ment protects persons and their privateconversations, was intended to withdrawany of the protection which the Amend-ment extends to the homeTTTT’’ Id., at180, 89 S.Ct. 961.

[5, 6] More recently, in Soldal v. CookCounty, 506 U.S. 56, 113 S.Ct. 538, 121L.Ed.2d 450 (1992), the Court unanimouslyrejected the argument that although a‘‘seizure’’ had occurred ‘‘in a ‘technical’sense’’ when a trailer home was forciblyremoved, id., at 62, 113 S.Ct. 538, noFourth Amendment violation occurred be-cause law enforcement had not ‘‘invade[d]the [individuals’] privacy,’’ id., at 60, 113S.Ct. 538. Katz, the Court explained, es-tablished that ‘‘property rights are not thesole measure of Fourth Amendment viola-tions,’’ but did not ‘‘snuf[f] out the previ-ously recognized protection for property.’’506 U.S., at 64, 113 S.Ct. 538. As JusticeBrennan explained in his concurrence inKnotts, Katz did not erode the principle‘‘that, when the Government does engagein physical intrusion of a constitutionallyprotected area in order to obtain informa-tion, that intrusion may constitute a viola-tion of the Fourth Amendment.’’ 460 U.S.,at 286, 103 S.Ct. 1081 (opinion concurringin judgment). We have embodied that

preservation of past rights in our verydefinition of ‘‘reasonable expectation of pri-vacy’’ which we have said to be an expecta-tion ‘‘that has a source outside of theFourth Amendment, either by reference toconcepts of real or personal property lawor to understandings that are recognizedand permitted by society.’’ Minnesota v.Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142L.Ed.2d 373 (1998) (internal quotationmarks omitted). Katz did not narrow theFourth Amendment’s scope.5

The Government contends that severalof our post-Katz cases foreclose the conclu-sion that what occurred here constituted asearch. It relies principally on two casesin which we rejected Fourth Amendmentchallenges to ‘‘beepers,’’ electronic track-ing devices that represent another form ofelectronic monitoring. The first case,Knotts, upheld against Fourth Amendmentchallenge the use of a ‘‘beeper’’ that hadbeen placed in a container of chloroform,allowing law enforcement to monitor thelocation of the container. 460 U.S., at 278,103 S.Ct. 1081. We said that there hadbeen no infringement of Knotts’ reason-able expectation of privacy since the infor-mation obtained—the location of the auto-mobile carrying the container on publicroads, and the location of the off-loadedcontainer in open fields near Knotts’ cab-in—had been voluntarily conveyed to the

5. The concurrence notes that post-Katz wehave explained that ‘‘ ‘an actual trespass isneither necessary nor sufficient to establish aconstitutional violation.’ ’’ Post, at 960 (quot-ing United States v. Karo, 468 U.S. 705, 713,104 S.Ct. 3296, 82 L.Ed.2d 530 (1984)). Thatis undoubtedly true, and undoubtedly irrele-vant. Karo was considering whether a sei-zure occurred, and as the concurrence ex-plains, a seizure of property occurs, not whenthere is a trespass, but ‘‘when there is somemeaningful interference with an individual’spossessory interests in that property.’’ Post,at 958 (internal quotation marks omitted).Likewise with a search. Trespass alone does

not qualify, but there must be conjoined with

that what was present here: an attempt to

find something or to obtain information.

Related to this, and similarly irrelevant, is

the concurrence’s point that, if analyzed sepa-

rately, neither the installation of the device

nor its use would constitute a Fourth Amend-

ment search. See ibid. Of course not. A

trespass on ‘‘houses’’ or ‘‘effects,’’ or a Katzinvasion of privacy, is not alone a search

unless it is done to obtain information; and

the obtaining of information is not alone a

search unless it is achieved by such a trespass

or invasion of privacy.


public.6 Id., at 281–282, 103 S.Ct. 1081.But as we have discussed, the Katz reason-able-expectation-of-privacy test has beenadded to, not substituted for, the common-law trespassory test. The holding inKnotts addressed only the former, sincethe latter was not at issue. The beeperhad been placed in the container before itcame into Knotts’ possession, with the con-sent of the then-owner. 460 U.S., at 278,103 S.Ct. 1081. Knotts did not challengethat installation, and we specifically de-clined to consider its effect on the FourthAmendment analysis. Id., at 279, n. **,103 S.Ct. 1081 Knotts would be relevant,perhaps, if the Government were makingthe argument that what would otherwisebe an unconstitutional search is not suchwhere it produces only public information.The Government does not make that argu-ment, and we know of no case that wouldsupport it.

The second ‘‘beeper’’ case, United Statesv. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82L.Ed.2d 530 (1984), does not suggest adifferent conclusion. There we addressedthe question left open by Knotts, whetherthe installation of a beeper in a containeramounted to a search or seizure. 468U.S., at 713, 104 S.Ct. 3296. As in Knotts,at the time the beeper was installed thecontainer belonged to a third party, and itdid not come into possession of the defen-dant until later. 468 U.S., at 708, 104S.Ct. 3296. Thus, the specific question weconsidered was whether the installation‘‘with the consent of the original ownerconstitute[d] a search or seizure TTT whenthe container is delivered to a buyer hav-ing no knowledge of the presence of thebeeper.’’ Id., at 707, 104 S.Ct. 3296 (em-

phasis added). We held not. The Govern-ment, we said, came into physical contactwith the container only before it belongedto the defendant Karo; and the transfer ofthe container with the unmonitored beeperinside did not convey any information andthus did not invade Karo’s privacy. Seeid., at 712, 104 S.Ct. 3296. That conclu-sion is perfectly consistent with the one wereach here. Karo accepted the containeras it came to him, beeper and all, and wastherefore not entitled to object to thebeeper’s presence, even though it was usedto monitor the container’s location. Cf. OnLee v. United States, 343 U.S. 747, 751–752, 72 S.Ct. 967, 96 L.Ed. 1270 (1952) (nosearch or seizure where an informant, whowas wearing a concealed microphone, wasinvited into the defendant’s business).Jones, who possessed the Jeep at the timethe Government trespassorily inserted theinformation-gathering device, is on muchdifferent footing.

The Government also points to our expo-sition in New York v. Class, 475 U.S. 106,106 S.Ct. 960, 89 L.Ed.2d 81 (1986), that‘‘[t]he exterior of a car TTT is thrust intothe public eye, and thus to examine it doesnot constitute a ‘search.’ ’’ Id., at 114, 106S.Ct. 960. That statement is of marginalrelevance here since, as the Governmentacknowledges, ‘‘the officers in this case didmore than conduct a visual inspection ofrespondent’s vehicle,’’ Brief for UnitedStates 41 (emphasis added). By attachingthe device to the Jeep, officers encroachedon a protected area. In Class itself wesuggested that this would make a differ-ence, for we concluded that an officer’smomentary reaching into the interior of avehicle did constitute a search.7 475 U.S.,at 114–115, 106 S.Ct. 960.

6. Knotts noted the ‘‘limited use which the

government made of the signals from this

particular beeper,’’ 460 U.S., at 284, 103 S.Ct.

1081; and reserved the question whether

‘‘different constitutional principles may be ap-

plicable’’ to ‘‘dragnet-type law enforcementpractices’’ of the type that GPS tracking madepossible here, ibid.

7. The Government also points to Cardwell v.Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41


[7] Finally, the Government’s positiongains little support from our conclusion inOliver v. United States, 466 U.S. 170, 104S.Ct. 1735, 80 L.Ed.2d 214 (1984), thatofficers’ information-gathering intrusion onan ‘‘open field’’ did not constitute a FourthAmendment search even though it was atrespass at common law, id., at 183, 104S.Ct. 1735. Quite simply, an open field,unlike the curtilage of a home, see UnitedStates v. Dunn, 480 U.S. 294, 300, 107S.Ct. 1134, 94 L.Ed.2d 326 (1987), is notone of those protected areas enumeratedin the Fourth Amendment. Oliver, supra,at 176–177, 104 S.Ct. 1735. See also Hes-ter v. United States, 265 U.S. 57, 59, 44S.Ct. 445, 68 L.Ed. 898 (1924). The Gov-ernment’s physical intrusion on such anarea—unlike its intrusion on the ‘‘effect’’ atissue here—is of no Fourth Amendmentsignificance.8

B

[8] The concurrence begins by accus-ing us of applying ‘‘18th-century tort law.’’Post, at 957. That is a distortion. What weapply is an 18th-century guarantee againstunreasonable searches, which we believemust provide at a minimum the degree ofprotection it afforded when it was adopted.The concurrence does not share that belief.It would apply exclusively Katz ’s reason-able-expectation-of-privacy test, even when

that eliminates rights that previously exist-ed.

The concurrence faults our approach for‘‘present[ing] particularly vexing prob-lems’’ in cases that do not involve physicalcontact, such as those that involve thetransmission of electronic signals. Post, at962. We entirely fail to understand thatpoint. For unlike the concurrence, whichwould make Katz the exclusive test, we donot make trespass the exclusive test. Sit-uations involving merely the transmissionof electronic signals without trespasswould remain subject to Katz analysis.

In fact, it is the concurrence’s insistenceon the exclusivity of the Katz test thatneedlessly leads us into ‘‘particularly vex-ing problems’’ in the present case. ThisCourt has to date not deviated from theunderstanding that mere visual observa-tion does not constitute a search. SeeKyllo, 533 U.S., at 31–32, 121 S.Ct. 2038.We accordingly held in Knotts that ‘‘[a]person traveling in an automobile on publicthoroughfares has no reasonable expecta-tion of privacy in his movements from oneplace to another.’’ 460 U.S., at 281, 103S.Ct. 1081. Thus, even assuming that theconcurrence is correct to say that ‘‘[t]radi-tional surveillance’’ of Jones for a 4–weekperiod ‘‘would have required a large teamof agents, multiple vehicles, and perhapsaerial assistance,’’ post, at 963, our casessuggest that such visual observation is con-

L.Ed.2d 325 (1974), in which the Court reject-ed the claim that the inspection of an im-pounded vehicle’s tire tread and the collectionof paint scrapings from its exterior violatedthe Fourth Amendment. Whether the plurali-ty said so because no search occurred orbecause the search was reasonable is unclear.Compare id., at 591, 94 S.Ct. 2464 (opinion ofBlackmun, J.) (‘‘[W]e fail to comprehendwhat expectation of privacy was infringed’’),with id., at 592, 94 S.Ct. 2464 (‘‘Under cir-cumstances such as these, where probablecause exists, a warrantless examination of theexterior of a car is not unreasonable TTT’’).

8. Thus, our theory is not that the Fourth

Amendment is concerned with ‘‘any technical

trespass that led to the gathering of evi-

dence.’’ Post, at 958 (ALITO, J., concurring

in judgment) (emphasis added). The Fourth

Amendment protects against trespassory

searches only with regard to those items

(‘‘persons, houses, papers, and effects’’) that it

enumerates. The trespass that occurred in

Oliver may properly be understood as a

‘‘search,’’ but not one ‘‘in the constitutional

sense.’’ 466 U.S., at 170, 183, 104 S.Ct.

1735.


stitutionally permissible. It may be thatachieving the same result through elec-tronic means, without an accompanyingtrespass, is an unconstitutional invasion ofprivacy, but the present case does notrequire us to answer that question.

And answering it affirmatively leads usneedlessly into additional thorny problems.The concurrence posits that ‘‘relativelyshort-term monitoring of a person’s move-ments on public streets’’ is okay, but that‘‘the use of longer term GPS monitoring ininvestigations of most offenses ’’ is no good.Post, at 964 (emphasis added). That intro-duces yet another novelty into our juris-prudence. There is no precedent for theproposition that whether a search has oc-curred depends on the nature of the crimebeing investigated. And even acceptingthat novelty, it remains unexplained why a4–week investigation is ‘‘surely’’ too longand why a drug-trafficking conspiracy in-volving substantial amounts of cash andnarcotics is not an ‘‘extraordinary of-fens[e]’’ which may permit longer observa-tion. See post, at 964. What of a 2–daymonitoring of a suspected purveyor of sto-len electronics? Or of a 6–month monitor-ing of a suspected terrorist? We mayhave to grapple with these ‘‘vexing prob-lems’’ in some future case where a classictrespassory search is not involved and re-sort must be had to Katz analysis; butthere is no reason for rushing forward toresolve them here.

III

[9] The Government argues in the al-ternative that even if the attachment anduse of the device was a search, it wasreasonable—and thus lawful—under theFourth Amendment because ‘‘officers hadreasonable suspicion, and indeed probablecause, to believe that [Jones] was a leaderin a large-scale cocaine distribution con-spiracy.’’ Brief for United States 50–51.

We have no occasion to consider this argu-ment. The Government did not raise itbelow, and the D.C. Circuit therefore didnot address it. See 625 F.3d, at 767 (Gins-burg, Tatel, and Griffith, JJ., concurring indenial of rehearing en banc). We considerthe argument forfeited. See Sprietsma v.Mercury Marine, 537 U.S. 51, 56, n. 4, 123S.Ct. 518, 154 L.Ed.2d 466 (2002).

* * *

The judgment of the Court of Appealsfor the D.C. Circuit is affirmed.

It is so ordered.

Justice SOTOMAYOR, concurring.

I join the Court’s opinion because Iagree that a search within the meaning ofthe Fourth Amendment occurs, at a mini-mum, ‘‘[w]here, as here, the Governmentobtains information by physically intrudingon a constitutionally protected area.’’Ante, at 950, n. 3. In this case, the Govern-ment installed a Global Positioning System(GPS) tracking device on respondent An-toine Jones’ Jeep without a valid warrantand without Jones’ consent, then used thatdevice to monitor the Jeep’s movementsover the course of four weeks. The Gov-ernment usurped Jones’ property for thepurpose of conducting surveillance on him,thereby invading privacy interests long af-forded, and undoubtedly entitled to,Fourth Amendment protection. See, e.g.,Silverman v. United States, 365 U.S. 505,511–512, 81 S.Ct. 679, 5 L.Ed.2d 734(1961).

Of course, the Fourth Amendment isnot concerned only with trespassory intru-sions on property. See, e.g., Kyllo v.United States, 533 U.S. 27, 31–33, 121S.Ct. 2038, 150 L.Ed.2d 94 (2001). Rath-er, even in the absence of a trespass, ‘‘aFourth Amendment search occurs whenthe government violates a subjective ex-pectation of privacy that society recog-


nizes as reasonable.’’ Id., at 33, 121 S.Ct.2038; see also Smith v. Maryland, 442U.S. 735, 740–741, 99 S.Ct. 2577, 61L.Ed.2d 220 (1979); Katz v. United States,389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d576 (1967) (Harlan, J., concurring). InKatz, this Court enlarged its then-prevail-ing focus on property rights by announc-ing that the reach of the Fourth Amend-ment does not ‘‘turn upon the presence orabsence of a physical intrusion.’’ Id., at353, 88 S.Ct. 507. As the majority’s opin-ion makes clear, however, Katz ’s reason-able-expectation-of-privacy test augment-ed, but did not displace or diminish, thecommon-law trespassory test that preced-ed it. Ante, at 951. Thus, ‘‘when the Gov-ernment does engage in physical intrusionof a constitutionally protected area in or-der to obtain information, that intrusionmay constitute a violation of the FourthAmendment.’’ United States v. Knotts,460 U.S. 276, 286, 103 S.Ct. 1081, 75L.Ed.2d 55 (1983) (Brennan, J., concurringin judgment); see also, e.g., Rakas v. Illi-nois, 439 U.S. 128, 144, n. 12, 99 S.Ct. 421,58 L.Ed.2d 387 (1978). Justice ALITO’sapproach, which discounts altogether theconstitutional relevance of the Govern-ment’s physical intrusion on Jones’ Jeep,erodes that longstanding protection forprivacy expectations inherent in items ofproperty that people possess or control.See post, at 959 – 961 (opinion concurringin judgment). By contrast, the trespasso-ry test applied in the majority’s opinionreflects an irreducible constitutional mini-mum: When the Government physicallyinvades personal property to gather infor-mation, a search occurs. The reaffirma-tion of that principle suffices to decide thiscase.

Nonetheless, as Justice ALITO notes,physical intrusion is now unnecessary tomany forms of surveillance. Post, at 961 –963. With increasing regularity, the Gov-ernment will be capable of duplicating the

monitoring undertaken in this case by en-listing factory- or owner-installed vehicletracking devices or GPS-enabled smart-phones. See United States v. Pineda–Moreno, 617 F.3d 1120, 1125 (C.A.9 2010)(Kozinski, C.J., dissenting from denial ofrehearing en banc). In cases of electronicor other novel modes of surveillance thatdo not depend upon a physical invasion onproperty, the majority opinion’s trespasso-ry test may provide little guidance. But‘‘[s]ituations involving merely the trans-mission of electronic signals without tres-pass would remain subject to Katz analy-sis.’’ Ante, at 953. As Justice ALITOincisively observes, the same technologicaladvances that have made possible nontres-passory surveillance techniques will alsoaffect the Katz test by shaping the evolu-tion of societal privacy expectations. Post,at 962 – 963. Under that rubric, I agreewith Justice ALITO that, at the very least,‘‘longer term GPS monitoring in investiga-tions of most offenses impinges on expec-tations of privacy.’’ Post, at 964.

In cases involving even short-term moni-toring, some unique attributes of GPS sur-veillance relevant to the Katz analysis willrequire particular attention. GPS moni-toring generates a precise, comprehensiverecord of a person’s public movements thatreflects a wealth of detail about her famil-ial, political, professional, religious, andsexual associations. See, e.g., People v.Weaver, 12 N.Y.3d 433, 441–442, 882N.Y.S.2d 357, 909 N.E.2d 1195, 1199 (2009)(‘‘Disclosed in [GPS] data TTT will be tripsthe indisputably private nature of whichtakes little imagination to conjure: trips tothe psychiatrist, the plastic surgeon, theabortion clinic, the AIDS treatment center,the strip club, the criminal defense attor-ney, the by-the-hour motel, the unionmeeting, the mosque, synagogue orchurch, the gay bar and on and on’’). The


Government can store such records andefficiently mine them for information yearsinto the future. Pineda–Moreno, 617F.3d, at 1124 (opinion of Kozinski, C.J.).And because GPS monitoring is cheap incomparison to conventional surveillancetechniques and, by design, proceeds sur-reptitiously, it evades the ordinary checksthat constrain abusive law enforcementpractices: ‘‘limited police resources andcommunity hostility.’’ Illinois v. Lidster,540 U.S. 419, 426, 124 S.Ct. 885, 157L.Ed.2d 843 (2004).

Awareness that the Government may bewatching chills associational and expres-sive freedoms. And the Government’s un-restrained power to assemble data thatreveal private aspects of identity is suscep-tible to abuse. The net result is that GPSmonitoring—by making available at a rela-tively low cost such a substantial quantumof intimate information about any personwhom the Government, in its unfettereddiscretion, chooses to track—may ‘‘alterthe relationship between citizen and gov-ernment in a way that is inimical to demo-cratic society.’’ United States v. Cuevas–Perez, 640 F.3d 272, 285 (C.A.7 2011)(Flaum, J., concurring).

I would take these attributes of GPSmonitoring into account when consideringthe existence of a reasonable societal ex-pectation of privacy in the sum of one’spublic movements. I would ask whetherpeople reasonably expect that their move-ments will be recorded and aggregated ina manner that enables the Government toascertain, more or less at will, their politi-cal and religious beliefs, sexual habits, andso on. I do not regard as dispositive thefact that the Government might obtain thefruits of GPS monitoring through lawfulconventional surveillance techniques. SeeKyllo, 533 U.S., at 35, n. 2, 121 S.Ct. 2038;ante, at 954 (leaving open the possibilitythat duplicating traditional surveillance‘‘through electronic means, without an ac-companying trespass, is an unconstitution-al invasion of privacy’’). I would also con-sider the appropriateness of entrusting tothe Executive, in the absence of any over-sight from a coordinate branch, a tool soamenable to misuse, especially in light ofthe Fourth Amendment’s goal to curb ar-bitrary exercises of police power to andprevent ‘‘a too permeating police surveil-lance,’’ United States v. Di Re, 332 U.S.581, 595, 68 S.Ct. 222, 92 L.Ed. 210(1948).*

* United States v. Knotts, 460 U.S. 276, 103 S.Ct.1081, 75 L.Ed.2d 55 (1983), does not fore-close the conclusion that GPS monitoring, inthe absence of a physical intrusion, is aFourth Amendment search. As the majority’sopinion notes, Knotts reserved the questionwhether ‘‘ ‘different constitutional principlesmay be applicable’ ’’ to invasive law enforce-ment practices such as GPS tracking. Seeante, at 952, n. 6 (quoting 460 U.S., at 284,103 S.Ct. 1081).

United States v. Karo, 468 U.S. 705, 104S.Ct. 3296, 82 L.Ed.2d 530 (1984), addressedthe Fourth Amendment implications of theinstallation of a beeper in a container with theconsent of the container’s original owner,who was aware that the beeper would be usedfor surveillance purposes. Id., at 707, 104S.Ct. 3296. Owners of GPS-equipped cars

and smartphones do not contemplate that

these devices will be used to enable covert

surveillance of their movements. To the con-

trary, subscribers of one such service greeted

a similar suggestion with anger. Quain,

Changes to OnStar’s Privacy Terms Rile

Some Users, N.Y. Times (Sept. 22, 2011),

online at http://wheels.blogs.nytimes.com/

2011/09/22/changes-to-onstars-privacy-terms-

rile-some-users (as visited Jan. 19, 2012, and

available in Clerk of Court’s case file). In

addition, the bugged container in Karo lacked

the close relationship with the target that a

car shares with its owner. The bugged con-

tainer in Karo was stationary for much of the

Government’s surveillance. See 468 U.S., at

708–710, 104 S.Ct. 3296. A car’s movements,

by contrast, are its owner’s movements.


More fundamentally, it may be neces-sary to reconsider the premise that anindividual has no reasonable expectation ofprivacy in information voluntarily disclosedto third parties. E.g., Smith, 442 U.S., at742, 99 S.Ct. 2577; United States v. Mil-ler, 425 U.S. 435, 443, 96 S.Ct. 1619, 48L.Ed.2d 71 (1976). This approach is illsuited to the digital age, in which peoplereveal a great deal of information aboutthemselves to third parties in the course ofcarrying out mundane tasks. People dis-close the phone numbers that they dial ortext to their cellular providers; the URLsthat they visit and the e-mail addresseswith which they correspond to their Inter-net service providers; and the books, gro-ceries, and medications they purchase toonline retailers. Perhaps, as Justice ALI-TO notes, some people may find the‘‘tradeoff’’ of privacy for convenience‘‘worthwhile,’’ or come to accept this ‘‘dimi-nution of privacy’’ as ‘‘inevitable,’’ post, at962, and perhaps not. I for one doubt thatpeople would accept without complaint thewarrantless disclosure to the Governmentof a list of every Web site they had visitedin the last week, or month, or year. Butwhatever the societal expectations, theycan attain constitutionally protected statusonly if our Fourth Amendment jurispru-dence ceases to treat secrecy as a prereq-uisite for privacy. I would not assumethat all information voluntarily disclosed tosome member of the public for a limitedpurpose is, for that reason alone, disen-titled to Fourth Amendment protection.See Smith, 442 U.S., at 749, 99 S.Ct. 2577(Marshall, J., dissenting) (‘‘Privacy is not a

discrete commodity, possessed absolutelyor not at all. Those who disclose certainfacts to a bank or phone company for alimited business purpose need not assumethat this information will be released toother persons for other purposes’’); seealso Katz, 389 U.S., at 351–352, 88 S.Ct.507 (‘‘[W]hat [a person] seeks to preserveas private, even in an area accessible tothe public, may be constitutionally protect-ed’’).

Resolution of these difficult questions inthis case is unnecessary, however, becausethe Government’s physical intrusion onJones’ Jeep supplies a narrower basis fordecision. I therefore join the majority’sopinion.

Justice ALITO, with whom JusticeGINSBURG, Justice BREYER, andJustice KAGAN join, concurring in thejudgment.

This case requires us to apply theFourth Amendment’s prohibition of unrea-sonable searches and seizures to a 21st-century surveillance technique, the use ofa Global Positioning System (GPS) deviceto monitor a vehicle’s movements for anextended period of time. Ironically, theCourt has chosen to decide this case basedon 18th-century tort law. By attaching asmall GPS device 1 to the underside of thevehicle that respondent drove, the law en-forcement officers in this case engaged inconduct that might have provided groundsin 1791 for a suit for trespass to chattels.2

And for this reason, the Court concludes,

1. Although the record does not reveal the sizeor weight of the device used in this case, thereis now a device in use that weighs two ouncesand is the size of a credit card. Tr. of OralArg. 27.

2. At common law, a suit for trespass to chat-tels could be maintained if there was a viola-tion of ‘‘the dignitary interest in the inviolabil-

ity of chattels,’’ but today there must be

‘‘some actual damage to the chattel before the

action can be maintained.’’ W. Keeton, D.

Dobbs, R. Keeton, & D. Owen, Prosser &

Keeton on Law of Torts 87 (5th ed.1984)

(hereinafter Prosser & Keeton). Here, there

was no actual damage to the vehicle to which

the GPS device was attached.


the installation and use of the GPS deviceconstituted a search. Ante, at 948 – 949.

This holding, in my judgment, is unwise.It strains the language of the FourthAmendment; it has little if any support incurrent Fourth Amendment case law; andit is highly artificial.

I would analyze the question presentedin this case by asking whether respon-dent’s reasonable expectations of privacywere violated by the long-term monitoringof the movements of the vehicle he drove.

I

A

The Fourth Amendment prohibits ‘‘un-reasonable searches and seizures,’’ and theCourt makes very little effort to explainhow the attachment or use of the GPSdevice fits within these terms. The Courtdoes not contend that there was a seizure.A seizure of property occurs when there is‘‘some meaningful interference with an in-dividual’s possessory interests in thatproperty,’’ United States v. Jacobsen, 466U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d85 (1984), and here there was none. In-deed, the success of the surveillance tech-nique that the officers employed was de-pendent on the fact that the GPS did notinterfere in any way with the operation ofthe vehicle, for if any such interferencehad been detected, the device might havebeen discovered.

The Court does claim that the installa-tion and use of the GPS constituted asearch, see ante, at 948 – 949, but thisconclusion is dependent on the questiona-ble proposition that these two procedurescannot be separated for purposes ofFourth Amendment analysis. If these twoprocedures are analyzed separately, it is

not at all clear from the Court’s opinionwhy either should be regarded as a search.It is clear that the attachment of the GPSdevice was not itself a search; if the devicehad not functioned or if the officers hadnot used it, no information would havebeen obtained. And the Court does notcontend that the use of the device consti-tuted a search either. On the contrary,the Court accepts the holding in UnitedStates v. Knotts, 460 U.S. 276, 103 S.Ct.1081, 75 L.Ed.2d 55 (1983), that the use ofa surreptitiously planted electronic deviceto monitor a vehicle’s movements on publicroads did not amount to a search. Seeante, at 951.

The Court argues—and I agree—that‘‘we must ‘assur[e] preservation of thatdegree of privacy against government thatexisted when the Fourth Amendment wasadopted.’ ’’ Ante, at 950 (quoting Kyllo v.United States, 533 U.S. 27, 34, 121 S.Ct.2038, 150 L.Ed.2d 94 (2001)). But it isalmost impossible to think of late–18th-century situations that are analogous towhat took place in this case. (Is it possi-ble to imagine a case in which a constablesecreted himself somewhere in a coach andremained there for a period of time inorder to monitor the movements of thecoach’s owner? 3) The Court’s theoryseems to be that the concept of a search,as originally understood, comprehendedany technical trespass that led to the gath-ering of evidence, but we know that this isincorrect. At common law, any unautho-rized intrusion on private property wasactionable, see Prosser & Keeton 75, but atrespass on open fields, as opposed to the‘‘curtilage’’ of a home, does not fall withinthe scope of the Fourth Amendment be-cause private property outside the curti-

3. The Court suggests that something like thismight have occurred in 1791, but this wouldhave required either a gigantic coach, a very

tiny constable, or both—not to mention a con-

stable with incredible fortitude and patience.


lage is not part of a ‘‘hous[e]’’ within themeaning of the Fourth Amendment. SeeOliver v. United States, 466 U.S. 170, 104S.Ct. 1735, 80 L.Ed.2d 214 (1984); Hesterv. United States, 265 U.S. 57, 44 S.Ct. 445,68 L.Ed. 898 (1924).

B

The Court’s reasoning in this case isvery similar to that in the Court’s earlydecisions involving wiretapping and elec-tronic eavesdropping, namely, that a tech-nical trespass followed by the gathering ofevidence constitutes a search. In the ear-ly electronic surveillance cases, the Courtconcluded that a Fourth Amendmentsearch occurred when private conversa-tions were monitored as a result of an‘‘unauthorized physical penetration intothe premises occupied’’ by the defendant.Silverman v. United States, 365 U.S. 505,509, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). InSilverman, police officers listened to con-versations in an attached home by insert-ing a ‘‘spike mike’’ through the wall thatthis house shared with the vacant housenext door. Id., at 506, 81 S.Ct. 679. Thisprocedure was held to be a search becausethe mike made contact with a heating ducton the other side of the wall and thus‘‘usurp[ed] TTT an integral part of thepremises.’’ Id., at 511, 81 S.Ct. 679.

By contrast, in cases in which there wasno trespass, it was held that there was nosearch. Thus, in Olmstead v. UnitedStates, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed.944 (1928), the Court found that theFourth Amendment did not apply because‘‘[t]he taps from house lines were made inthe streets near the houses.’’ Id., at 457,48 S.Ct. 564. Similarly, the Court conclud-ed that no search occurred in Goldman v.United States, 316 U.S. 129, 135, 62 S.Ct.993, 86 L.Ed. 1322 (1942), where a ‘‘detec-taphone’’ was placed on the outer wall ofdefendant’s office for the purpose of over-

hearing conversations held within theroom.

This trespass-based rule was repeatedlycriticized. In Olmstead, Justice Brandeiswrote that it was ‘‘immaterial where thephysical connection with the telephonewires was made.’’ 277 U.S., at 479, 48S.Ct. 564 (dissenting opinion). Although aprivate conversation transmitted by wiredid not fall within the literal words of theFourth Amendment, he argued, theAmendment should be understood as pro-hibiting ‘‘every unjustifiable intrusion bythe government upon the privacy of theindividual.’’ Id., at 478, 48 S.Ct. 564. Seealso, e.g., Silverman, supra, at 513, 81S.Ct. 679 (Douglas, J., concurring) (‘‘Theconcept of ‘an unauthorized physical pen-etration into the premises,’ on which thepresent decision rests seems to me besidethe point. Was not the wrong TTT donewhen the intimacies of the home weretapped, recorded, or revealed? The depthof the penetration of the electronic de-vice—even the degree of its remotenessfrom the inside of the house—is not themeasure of the injury’’); Goldman, supra,at 139, 62 S.Ct. 993 (Murphy, J., dissent-ing) (‘‘[T]he search of one’s home or officeno longer requires physical entry, for sci-ence has brought forth far more effectivedevices for the invasion of a person’s priva-cy than the direct and obvious methods ofoppression which were detested by ourforebears and which inspired the FourthAmendment’’).

Katz v. United States, 389 U.S. 347, 88S.Ct. 507, 19 L.Ed.2d 576 (1967), finallydid away with the old approach, holdingthat a trespass was not required for aFourth Amendment violation. Katz in-volved the use of a listening device thatwas attached to the outside of a publictelephone booth and that allowed policeofficers to eavesdrop on one end of thetarget’s phone conversation. This proce-


dure did not physically intrude on the areaoccupied by the target, but the Katz Court,‘‘repudiate[ed]’’ the old doctrine, Rakas v.Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58L.Ed.2d 387 (1978), and held that ‘‘[t]hefact that the electronic device employedTTT did not happen to penetrate the wall ofthe booth can have no constitutional signif-icance,’’ 389 U.S., at 353, 88 S.Ct. 507(‘‘[T]he reach of th[e] [Fourth] Amend-ment cannot turn upon the presence orabsence of a physical intrusion into anygiven enclosure’’); see Rakas, supra, at143, 99 S.Ct. 421 (describing Katz as hold-ing that the ‘‘capacity to claim the protec-tion for the Fourth Amendment dependsnot upon a property right in the invadedplace but upon whether the person whoclaims the protection of the Amendmenthas a legitimate expectation of privacy inthe invaded place’’); Kyllo, supra, at 32,121 S.Ct. 2038 (‘‘We have since decoupledviolation of a person’s Fourth Amendmentrights from trespassory violation of hisproperty’’). What mattered, the Courtnow held, was whether the conduct at is-sue ‘‘violated the privacy upon which [thedefendant] justifiably relied while usingthe telephone booth.’’ Katz, supra, at 353,88 S.Ct. 507.

Under this approach, as the Court laterput it when addressing the relevance of atechnical trespass, ‘‘an actual trespass isneither necessary nor sufficient to estab-lish a constitutional violation.’’ UnitedStates v. Karo, 468 U.S. 705, 713, 104 S.Ct.3296, 82 L.Ed.2d 530 (1984) (emphasis add-ed). Ibid. (‘‘Compar[ing] Katz v. UnitedStates, 389 U.S. 347 [88 S.Ct. 507, 19L.Ed.2d 576] (1967) (no trespass, butFourth Amendment violation), with Oliverv. United States, 466 U.S. 170 [104 S.Ct.1735, 80 L.Ed.2d 214] (1984) (trespass, butno Fourth Amendment violation)’’). In Ol-iver, the Court wrote:

‘‘The existence of a property right is butone element in determining whether ex-

pectations of privacy are legitimate.‘The premise that property interestscontrol the right of the Government tosearch and seize has been discredited.’Katz, 389 U.S., at 353 [88 S.Ct. 507],(quoting Warden v. Hayden, 387 U.S.294, 304 [87 S.Ct. 1642, 18 L.Ed.2d 782](1967); some internal quotation marksomitted).’’ 466 U.S., at 183, 104 S.Ct.1735.

II

The majority suggests that two post-Katz decisions—Soldal v. Cook County,506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450(1992), and Alderman v. United States, 394U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176(1969)—show that a technical trespass issufficient to establish the existence of asearch, but they provide little support.

In Soldal, the Court held that towingaway a trailer home without the owner’sconsent constituted a seizure even if thisdid not invade the occupants’ personal pri-vacy. But in the present case, the Courtdoes not find that there was a seizure, andit is clear that none occurred.

In Alderman, the Court held that theFourth Amendment rights of homeownerswere implicated by the use of a surrepti-tiously planted listening device to monitorthird-party conversations that occurredwithin their home. See 394 U.S., at 176–180, 89 S.Ct. 961. Alderman is best un-derstood to mean that the homeownershad a legitimate expectation of privacy inall conversations that took place undertheir roof. See Rakas, 439 U.S., at 144, n.12, 99 S.Ct. 421 (citing Alderman for theproposition that ‘‘the Court has not alto-gether abandoned use of property conceptsin determining the presence or absence ofthe privacy interests protected by thatAmendment’’); 439 U.S., at 153, 99 S.Ct.421 (Powell, J., concurring) (citing Alder-


man for the proposition that ‘‘propertyrights reflect society’s explicit recognitionof a person’s authority to act as he wishesin certain areas, and therefore should beconsidered in determining whether an indi-vidual’s expectations of privacy are reason-able’’); Karo, supra, at 732, 104 S.Ct. 3296(Stevens, J., concurring in part and dis-senting in part) (citing Alderman in sup-port of the proposition that ‘‘a homeownerhas a reasonable expectation of privacy inthe contents of his home, including itemsowned by others’’).

In sum, the majority is hard pressed tofind support in post-Katz cases for its tres-pass-based theory.

III

Disharmony with a substantial body ofexisting case law is only one of the prob-lems with the Court’s approach in thiscase.

I will briefly note four others. First,the Court’s reasoning largely disregardswhat is really important (the use of a GPSfor the purpose of long-term tracking) andinstead attaches great significance tosomething that most would view as rela-tively minor (attaching to the bottom of acar a small, light object that does notinterfere in any way with the car’s opera-tion). Attaching such an object is general-ly regarded as so trivial that it does notprovide a basis for recovery under moderntort law. See Prosser & Keeton § 14, at87 (harmless or trivial contact with person-al property not actionable); D. Dobbs,Law of Torts 124 (2000) (same). But un-der the Court’s reasoning, this conductmay violate the Fourth Amendment. Bycontrast, if long-term monitoring can beaccomplished without committing a techni-cal trespass—suppose, for example, that

the Federal Government required or per-suaded auto manufacturers to include aGPS tracking device in every car—theCourt’s theory would provide no protec-tion.

Second, the Court’s approach leads toincongruous results. If the police attach aGPS device to a car and use the device tofollow the car for even a brief time, underthe Court’s theory, the Fourth Amend-ment applies. But if the police follow thesame car for a much longer period usingunmarked cars and aerial assistance, thistracking is not subject to any FourthAmendment constraints.

In the present case, the Fourth Amend-ment applies, the Court concludes, becausethe officers installed the GPS device afterrespondent’s wife, to whom the car wasregistered, turned it over to respondentfor his exclusive use. See ante, at 951.But if the GPS had been attached prior tothat time, the Court’s theory would lead toa different result. The Court proceeds onthe assumption that respondent ‘‘had atleast the property rights of a bailee,’’ ante,at 949, n. 2, but a bailee may sue for atrespass to chattel only if the injury occursduring the term of the bailment. See 8AAm.Jur.2d, Bailment § 166, pp. 685–686(2009). So if the GPS device had beeninstalled before respondent’s wife gavehim the keys, respondent would have noclaim for trespass—and, presumably, noFourth Amendment claim either.

Third, under the Court’s theory, the cov-erage of the Fourth Amendment may varyfrom State to State. If the events at issuehere had occurred in a community proper-ty State 4 or a State that has adopted theUniform Marital Property Act,5 respon-dent would likely be an owner of the vehi-cle, and it would not matter whether the

4. See, e.g., Cal. Family Code Ann. § 760 (West

2004).

5. See Uniform Marital Property Act § 4, 9A

U.L.A. 116 (1998).


GPS was installed before or after his wifeturned over the keys. In non-community-property States, on the other hand, theregistration of the vehicle in the name ofrespondent’s wife would generally be re-garded as presumptive evidence that shewas the sole owner. See 60 C.J. S., MotorVehicles § 231, pp. 398–399 (2002); 8 Am.Jur.2d, Automobiles § 1208, pp. 859–860(2007).

Fourth, the Court’s reliance on the lawof trespass will present particularly vexingproblems in cases involving surveillancethat is carried out by making electronic, asopposed to physical, contact with the itemto be tracked. For example, suppose thatthe officers in the present case had fol-lowed respondent by surreptitiously acti-vating a stolen vehicle detection systemthat came with the car when it was pur-chased. Would the sending of a radiosignal to activate this system constitute atrespass to chattels? Trespass to chattelshas traditionally required a physical touch-ing of the property. See Restatement(Second) of Torts § 217 and Comment e(1963 and 1964); Dobbs, supra, at 123. Inrecent years, courts have wrestled with theapplication of this old tort in cases involv-ing unwanted electronic contact with com-puter systems, and some have held thateven the transmission of electrons thatoccurs when a communication is sent fromone computer to another is enough. See,e.g., CompuServe, Inc. v. Cyber Pro-motions, Inc., 962 F.Supp. 1015, 1021(S.D.Ohio 1997); Thrifty–Tel, Inc. v. Bez-enek, 46 Cal.App.4th 1559, 1566, n. 6, 54Cal.Rptr.2d 468 (1996). But may such de-cisions be followed in applying the Court’strespass theory? Assuming that whatmatters under the Court’s theory is the

law of trespass as it existed at the time ofthe adoption of the Fourth Amendment, dothese recent decisions represent a changein the law or simply the application of theold tort to new situations?

IV

A

The Katz expectation-of-privacy testavoids the problems and complicationsnoted above, but it is not without its owndifficulties. It involves a degree of circu-larity, see Kyllo, 533 U.S., at 34, 121 S.Ct.2038, and judges are apt to confuse theirown expectations of privacy with those ofthe hypothetical reasonable person towhich the Katz test looks. See Minneso-ta v. Carter, 525 U.S. 83, 97, 119 S.Ct.469, 142 L.Ed.2d 373 (1998) (SCALIA, J.,concurring). In addition, the Katz testrests on the assumption that this hypo-thetical reasonable person has a well-de-veloped and stable set of privacy expecta-tions. But technology can change thoseexpectations. Dramatic technologicalchange may lead to periods in which pop-ular expectations are in flux and may ulti-mately produce significant changes inpopular attitudes. New technology mayprovide increased convenience or securityat the expense of privacy, and many peo-ple may find the tradeoff worthwhile.And even if the public does not welcomethe diminution of privacy that new tech-nology entails, they may eventually recon-cile themselves to this development as in-evitable.6

On the other hand, concern about newintrusions on privacy may spur the enact-ment of legislation to protect against theseintrusions. This is what ultimately hap-

6. See, e.g., NPR, The End of Privacy http://www.npr.org/series/114250076/the-end-of-privacy (all Internet materials as visited Jan.20, 2012, and available in Clerk of Court’s

case file); Time Magazine, Everything About

You Is Being Tracked—Get Over It, Joel

Stein, Mar. 21, 2011, Vol. 177, No. 11.


pened with respect to wiretapping. AfterKatz, Congress did not leave it to thecourts to develop a body of Fourth Amend-ment case law governing that complex sub-ject. Instead, Congress promptly enacteda comprehensive statute, see 18 U.S.C.§§ 2510–2522 (2006 ed. and Supp. IV), andsince that time, the regulation of wiretap-ping has been governed primarily by stat-ute and not by case law.7 In an ironicsense, although Katz overruled Olmstead,Chief Justice Taft’s suggestion in the lat-ter case that the regulation of wiretappingwas a matter better left for Congress, see277 U.S., at 465–466, 48 S.Ct. 564, hasbeen borne out.

B

Recent years have seen the emergenceof many new devices that permit the moni-toring of a person’s movements. In somelocales, closed-circuit television video moni-toring is becoming ubiquitous. On tollroads, automatic toll collection systemscreate a precise record of the movementsof motorists who choose to make use ofthat convenience. Many motorists pur-chase cars that are equipped with devicesthat permit a central station to ascertainthe car’s location at any time so that road-side assistance may be provided if neededand the car may be found if it is stolen.

Perhaps most significant, cell phonesand other wireless devices now permitwireless carriers to track and record thelocation of users—and as of June 2011, it

has been reported, there were more than322 million wireless devices in use in theUnited States.8 For older phones, the ac-curacy of the location information dependson the density of the tower network, butnew ‘‘smart phones,’’ which are equippedwith a GPS device, permit more precisetracking. For example, when a user acti-vates the GPS on such a phone, a provideris able to monitor the phone’s location andspeed of movement and can then reportback real-time traffic conditions after com-bining (‘‘crowdsourcing’’) the speed of allsuch phones on any particular road.9 Sim-ilarly, phone-location-tracking services areoffered as ‘‘social’’ tools, allowing consum-ers to find (or to avoid) others who enrollin these services. The availability and useof these and other new devices will contin-ue to shape the average person’s expecta-tions about the privacy of his or her dailymovements.

VIn the pre-computer age, the greatest

protections of privacy were neither consti-tutional nor statutory, but practical. Tra-ditional surveillance for any extended peri-od of time was difficult and costly andtherefore rarely undertaken. The surveil-lance at issue in this case—constant moni-toring of the location of a vehicle for fourweeks—would have required a large teamof agents, multiple vehicles, and perhapsaerial assistance.10 Only an investigationof unusual importance could have justifiedsuch an expenditure of law enforcement

7. See Kerr, The Fourth Amendment and NewTechnologies: Constitutional Myths and theCase for Caution, 102 Mich. L.Rev. 801, 850–851 (2004) (hereinafter Kerr).

8. See CTIA Consumer Info, 50 Wireless QuickFacts, http://www.ctia.org/consumer info/index.cfm/AID/10323.

9. See, e.g., The bright side of sitting in traffic:Crowdsourcing road congestion data, GoogleBlog, http://googleblog.blogspot.com/2009/08/bright-side-of-sitting-in-traffic.html.

10. Even with a radio transmitter like those

used in United States v. Knotts, 460 U.S. 276,

103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), or

United States v. Karo, 468 U.S. 705, 104 S.Ct.

3296, 82 L.Ed.2d 530 (1984), such long-term

surveillance would have been exceptionally

demanding. The beepers used in those cases

merely ‘‘emit[ted] periodic signals that [could]

be picked up by a radio receiver.’’ Knotts,460 U.S., at 277, 103 S.Ct. 1081. The signal

had a limited range and could be lost if the

police did not stay close enough. Indeed, in


resources. Devices like the one used inthe present case, however, make long-termmonitoring relatively easy and cheap. Incircumstances involving dramatic techno-logical change, the best solution to privacyconcerns may be legislative. See, e.g.,Kerr, 102 Mich. L.Rev., at 805–806. Alegislative body is well situated to gaugechanging public attitudes, to draw detailedlines, and to balance privacy and publicsafety in a comprehensive way.

To date, however, Congress and mostStates have not enacted statutes regulat-ing the use of GPS tracking technology forlaw enforcement purposes. The best thatwe can do in this case is to apply existingFourth Amendment doctrine and to askwhether the use of GPS tracking in aparticular case involved a degree of intru-sion that a reasonable person would nothave anticipated.

Under this approach, relatively short-term monitoring of a person’s movementson public streets accords with expecta-tions of privacy that our society has rec-ognized as reasonable. See Knotts, 460U.S., at 281–282, 103 S.Ct. 1081. But theuse of longer term GPS monitoring in in-vestigations of most offenses impinges onexpectations of privacy. For such of-fenses, society’s expectation has been thatlaw enforcement agents and others wouldnot—and indeed, in the main, simplycould not—secretly monitor and catalogueevery single movement of an individual’s

car for a very long period. In this case,for four weeks, law enforcement agentstracked every movement that respondentmade in the vehicle he was driving. Weneed not identify with precision the pointat which the tracking of this vehicle be-came a search, for the line was surelycrossed before the 4–week mark. Othercases may present more difficult ques-tions. But where uncertainty exists withrespect to whether a certain period ofGPS surveillance is long enough to consti-tute a Fourth Amendment search, the po-lice may always seek a warrant.11 Wealso need not consider whether prolongedGPS monitoring in the context of investi-gations involving extraordinary offenseswould similarly intrude on a constitution-ally protected sphere of privacy. In suchcases, long-term tracking might have beenmounted using previously available tech-niques.

* * *

For these reasons, I conclude that thelengthy monitoring that occurred in thiscase constituted a search under the FourthAmendment. I therefore agree with themajority that the decision of the Court ofAppeals must be affirmed.

,

Knotts itself, officers lost the signal from thebeeper, and only ‘‘with the assistance of amonitoring device located in a helicopter[was] the approximate location of the signalTTT picked up again about one hour later.’’Id., at 278, 103 S.Ct. 1081.

11. In this case, the agents obtained a warrant,but they did not comply with two of thewarrant’s restrictions: They did not install theGPS device within the 10–day period requiredby the terms of the warrant and by Fed. RuleCrim. Proc. 41(e)(2)(B)(i), and they did notinstall the GPS device within the District of

Columbia, as required by the terms of the

warrant and by 18 U.S.C. § 3117(a) and Rule

41(b)(4). In the courts below the Govern-

ment did not argue, and has not argued here,

that the Fourth Amendment does not impose

these precise restrictions and that the viola-

tion of these restrictions does not demand the

suppression of evidence obtained using the

tracking device. See, e.g., United States v.Gerber, 994 F.2d 1556, 1559–1560 (C.A.11

1993); United States v. Burke, 517 F.2d 377,

386–387 (C.A.2 1975). Because it was not

raised, that question is not before us.


It is deeply disappointing to see a repre-sentative of the United States resort tothis base tactic more than a decade intothe 21st century. Such conduct diminishesthe dignity of our criminal justice systemand undermines respect for the rule of law.We expect the Government to seek justice,not to fan the flames of fear and prejudice.In discharging the duties of his office inthis case, the Assistant United States At-torney for the Western District of Texasmissed the mark.

Also troubling are the Government’s ac-tions on appeal. Before the Fifth Circuit,the Government failed to recognize thewrongfulness of the prosecutor’s question,instead calling it only ‘‘impolitic’’ and argu-ing that ‘‘even assuming the questioncrossed the line,’’ it did not prejudice theoutcome. Brief for United States in No.11–50605, pp. 19, 20. This promptedJudge Haynes to ‘‘clear up any confusion—the question crossed the line.’’ 478 Fed.Appx. 193, 196 (C.A.5 2012) (concurringopinion). In this Court, the Solicitor Gen-eral has more appropriately conceded thatthe ‘‘prosecutor’s racial remark was un-questionably improper.’’ Brief in Opposi-tion 7–8. Yet this belated acknowledg-ment came only after the Solicitor Generalwaived the Government’s response to thepetition at first, leaving the Court to directa response.

I hope never to see a case like thisagain.

,

James R. CLAPPER, Jr., Directorof National Intelligence, et

al., Petitioners

v.

AMNESTY INTERNATIONALUSA et al.

No. 11–1025.

Argued Oct. 29, 2012.

Decided Feb. 26, 2013.

Background: Attorneys and humanrights, labor, legal, and media organiza-tions brought action seeking a declarationthat provision of Foreign Intelligence Sur-veillance Act (FISA) allowing surveillanceof individuals who were not ‘‘United Statespersons’’ and were reasonably believed tobe located outside the United States, wasunconstitutional, as well as an injunctionagainst surveillance authorized by the pro-vision. The United States District Courtfor the Southern District of New York,John G. Koeltl, J., 646 F.Supp.2d 633,granted summary judgment in favor ofdefendants, and plaintiffs appealed. TheUnited States Court of Appeals for theSecond Circuit, Gerard E. Lynch, CircuitJudge, reversed, 638 F.3d 118, and deniedrehearing en banc, 667 F.3d 163. Defen-dants petitioned for certiorari.

Holdings: The Supreme Court, JusticeAlito, held that:

(1) plaintiffs failed to demonstrate the fu-ture injury they purportedly fearedwas certainly impending;

(2) plaintiffs failed to establish the futureinjury they purportedly feared wasfairly traceable to the FISA provisionat issue; and

(3) costs plaintiffs incurred to avoid sur-veillance were not fairly traceable tothe FISA provision at issue.

Reversed.

1139CLAPPER v. AMNESTY INTERN. USACite as 133 S.Ct. 1138 (2013)

Justice Breyer, filed a dissenting opinionin which Justice Ginsburg, Justice Sotoma-yor, and Justice Kagan joined.

1. Federal Courts O12.1

No principle is more fundamental tothe judiciary’s proper role in the UnitedStates’s system of government than theconstitutional limitation of federal-court ju-risdiction to actual cases or controversies.U.S.C.A. Const. Art. 3, § 2, cl. 1.

2. Federal Courts O12.1

One element of the case-or-controver-sy requirement is that plaintiffs must es-tablish that they have standing to sue.U.S.C.A. Const. Art. 3, § 2, cl. 1.

3. Constitutional Law O2450

Federal Civil Procedure O103.2

The law of Article III standing, whichis built on separation-of-powers principles,serves to prevent the judicial process frombeing used to usurp the powers of thepolitical branches. U.S.C.A. Const. Art. 3,§ 2, cl. 1.

4. Federal Civil Procedure O103.2

Relaxation of standing requirementsis directly related to the expansion of judi-cial power.

5. Federal Civil Procedure O103.2, 103.3

To establish Article III standing, aninjury must be concrete, particularized,and actual or imminent; fairly traceable tothe challenged action; and redressable bya favorable ruling. U.S.C.A. Const. Art. 3,§ 2, cl. 1.

6. Federal Civil Procedure O103.3

Although imminence is a somewhatelastic concept in the context of establish-ing Article III standing, it cannot bestretched beyond its purpose, which is toensure that the alleged injury is not toospeculative for Article III purposes, that

the injury is certainly impending.U.S.C.A. Const. Art. 3, § 2, cl. 1.

7. Telecommunications O1479Assertion of attorneys and human

rights, labor, legal, and media organiza-tions, that there was an objectively reason-able likelihood that their communicationswith foreign contacts would be interceptedat some point in the future under provisionof Foreign Intelligence Surveillance Act(FISA) allowing surveillance of individualswho were not ‘‘United States persons’’ andwere reasonably believed to be located out-side the United States, did not satisfy Arti-cle III standing requirement that thethreatened injury be certainly impending.U.S.C.A. Const. Art. 3, § 2, cl. 1; 50U.S.C.A. § 1881a.

8. Federal Civil Procedure O103.2The party invoking federal jurisdiction

bears the burden of establishing standing,and, at the summary judgment stage, sucha party can no longer rest on mere allega-tions, but must set forth by affidavit orother evidence specific facts.

9. Telecommunications O1479Attorneys and human rights, labor,

legal, and media organizations allegingthat there was objectively reasonable like-lihood that their communications with for-eign contacts would be intercepted at somepoint in the future under provision of For-eign Intelligence Surveillance Act (FISA)allowing surveillance of individuals whowere not ‘‘United States persons’’ andwere reasonably believed to be located out-side United States could not satisfy theArticle III standing requirement that theirinjury be fairly traceable to that provisionat issue in their action challenging its con-stitutionality; plaintiffs could only specu-late as to whether any interception wouldbe under the FISA provision or some oth-er authority. U.S.C.A. Const. Art. 3, § 2,cl. 1; 50 U.S.C.A. § 1881a.


10. Federal Civil Procedure O103.2Plaintiffs cannot rely on speculation

about the unfettered choices made by inde-pendent actors not before the court toestablish Article III standing. U.S.C.A.Const. Art. 3, § 2, cl. 1.

11. Telecommunications O1479Costly and burdensome measures al-

legedly incurred by attorneys and humanrights, labor, legal, and media organiza-tions to protect their communications withforeign contacts from the risk of surveil-lance under provision of Foreign Intelli-gence Surveillance Act (FISA) allowingsurveillance of individuals who were not‘‘United States persons’’ and were reason-ably believed to be located outside theUnited States, were not fairly traceable tothe government’s purported activities un-der the FISA provision, and therefore didnot give rise to standing to challenge theconstitutionality of the provision.U.S.C.A. Const. Art. 3, § 2, cl. 1; 50U.S.C.A. § 1881a.

12. Federal Civil Procedure O103.2Plaintiffs cannot manufacture stand-

ing merely by inflicting harm on them-selves based on their fears of hypotheticalfuture harm that is not certainly impend-ing.

13. Federal Civil Procedure O103.2The assumption that if plaintiffs have

no standing to sue, no one would havestanding, is not a reason to find standing.

Syllabus *

Section 702 of the Foreign Intelli-gence Surveillance Act of 1978 (FISA), 50U.S.C. § 1881a, added by the FISAAmendments Act of 2008, permits the At-torney General and the Director of Nation-

al Intelligence to acquire foreign intelli-gence information by jointly authorizingthe surveillance of individuals who are not‘‘United States persons’’ and are reason-ably believed to be located outside theUnited States. Before doing so, the Attor-ney General and the Director of NationalIntelligence normally must obtain the For-eign Intelligence Surveillance Court’s(FISC) approval. Surveillance under§ 1881a is subject to statutory conditions,judicial authorization, congressional super-vision, and compliance with the FourthAmendment. Respondents—attorneysand human rights, labor, legal, and mediaorganizations—are United States personswho claim that they engage in sensitiveinternational communications with individ-uals who they believe are likely targets of§ 1881a surveillance. On the day that theFISA Amendments Act was enacted, theyfiled suit, seeking a declaration that§ 1881a is facially unconstitutional and apermanent injunction against § 1881a-au-thorized surveillance. The District Courtfound that respondents lacked standing,but the Second Circuit reversed, holdingthat respondents showed (1) an ‘‘objective-ly reasonable likelihood’’ that their commu-nications will be intercepted at some timein the future, and (2) that they are suffer-ing present injuries resulting from costlyand burdensome measures they take toprotect the confidentiality of their interna-tional communications from possible§ 1881a surveillance.

Held : Respondents do not have Arti-cle III standing. Pp. 1146 – 1155.

(a) To establish Article III standing,an injury must be ‘‘concrete, particular-ized, and actual or imminent; fairly tracea-ble to the challenged action; and redressa-ble by a favorable ruling.’’ Monsanto Co.

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


v. Geertson Seed Farms, ––– U.S. ––––,130 S.Ct. 2743, 177 L.Ed.2d 461. ‘‘[T]hreat-ened injury must be ‘ ‘‘certainly impend-ing’’ ’ to constitute injury in fact,’’ and‘‘[a]llegations of possible future injury’’ arenot sufficient. Whitmore v. Arkansas, 495U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d135. Pp. 1146 – 1150.

(b) Respondents assert that theyhave suffered injury in fact that is fairlytraceable to § 1881a because there is anobjectively reasonable likelihood that theircommunications with their foreign contactswill be intercepted under § 1881a at somepoint. This argument fails. Initially, theSecond Circuit’s ‘‘objectively reasonablelikelihood’’ standard is inconsistent withthis Court’s ‘‘threatened injury’’ require-ment. Respondents’ standing theory alsorests on a speculative chain of possibilitiesthat does not establish that their potentialinjury is certainly impending or is fairlytraceable to § 1881a. First, it is highlyspeculative whether the Government willimminently target communications towhich respondents are parties. Since re-spondents, as U.S. persons, cannot be tar-geted under § 1881a, their theory neces-sarily rests on their assertion that theirforeign contacts will be targeted. Yetthey have no actual knowledge of the Gov-ernment’s § 1881a targeting practices.Second, even if respondents could demon-strate that the targeting of their foreigncontacts is imminent, they can only specu-late as to whether the Government willseek to use § 1881a-authorized surveil-lance instead of one of the Government’snumerous other surveillance methods,which are not challenged here. Third,even if respondents could show that theGovernment will seek FISC authorizationto target respondents’ foreign contacts un-der § 1881a, they can only speculate as towhether the FISC will authorize the sur-veillance. This Court is reluctant to en-dorse standing theories that require

guesswork as to how independent deci-sionmakers will exercise their judgment.See, e.g., Whitmore, supra, at 159–160, 110S.Ct. 1717. Fourth, even if the Govern-ment were to obtain the FISC’s approvalto target respondents’ foreign contacts un-der § 1881a, it is unclear whether theGovernment would succeed in acquiringthose contacts’ communications. Andfifth, even if the Government were to tar-get respondents’ foreign contacts, respon-dents can only speculate as to whethertheir own communications with those con-tacts would be incidentally acquired. Pp.1147 – 1150.

(c) Respondents’ alternative argu-ment is also unpersuasive. They claimthat they suffer ongoing injuries that arefairly traceable to § 1881a because therisk of § 1881a surveillance requires themto take costly and burdensome measuresto protect the confidentiality of their com-munications. But respondents cannotmanufacture standing by choosing to makeexpenditures based on hypothetical futureharm that is not certainly impending. Be-cause they do not face a threat of certainlyimpending interception under § 1881a,their costs are simply the product of theirfear of surveillance, which is insufficient tocreate standing. See Laird v. Tatum, 408U.S. 1, 10–15, 92 S.Ct. 2318, 33 L.Ed.2d154. Accordingly, any ongoing injuriesthat respondents are suffering are not fair-ly traceable to § 1881a. Pp. 1150 – 1153.

(d) Respondents’ remaining argu-ments are likewise unavailing. Contraryto their claim, their alleged injuries are notthe same kinds of injuries that supportedstanding in cases such as Friends of theEarth, Inc. v. Laidlaw EnvironmentalServices (TOC), Inc., 528 U.S. 167, 120S.Ct. 693, 145 L.Ed.2d 610, Meese v.Keene, 481 U.S. 465, 107 S.Ct. 1862, 95L.Ed.2d 415, and Monsanto, supra. Andtheir suggestion that they should be held


to have standing because otherwise theconstitutionality of § 1881a will never beadjudicated is both legally and factuallyincorrect. First, ‘‘ ‘[t]he assumption that ifrespondents have no standing to sue, noone would have standing, is not a reason tofind standing.’ ’’ Valley Forge ChristianCollege v. Americans United for Separa-tion of Church and State, Inc., 454 U.S.464, 489, 102 S.Ct. 752, 70 L.Ed.2d 700.Second, the holding in this case by nomeans insulates § 1881a from judicial re-view. Pp. 1153 – 1155.

638 F.3d 118, reversed and remanded.

ALITO, J., delivered the opinion ofthe Court, in which ROBERTS, C.J., andSCALIA, KENNEDY, and THOMAS, JJ.,joined. BREYER, J., filed a dissentingopinion, in which GINSBURG,SOTOMAYOR, and KAGAN, JJ., joined.

Donald B. Verrilli, Jr., Solicitor General,for Petitioners.

Jameel Jaffer, New York, NY, for Re-spondents.

Charles S. Sims, Matthew J. Morris,Proskauer Rose LLP, New York, NY,Jameel Jaffer, Counsel of Record, StevenR. Shapiro, Alexander A. Abdo, MitraEbadolahi, American Civil Liberties UnionFoundation, New York, NY, Arthur N.Eisenburg, Christopher T. Dunn, NewYork Civil Liberties Union Foundation,New York, NY, for Respondents.

Robert S. Litt, General Counsel, TriciaS. Wellman, Deputy General Counsel,Bradley A. Brooker, Associate GeneralCounsel, Office of the Director of NationalIntelligence, Washington, DC, Rajesh De,General Counsel, Ariane E. Cerlenko, As-sociate General Counsel, National SecurityAgency, Ft. Meade, MD, Donald B. Verril-

li, Jr., Solicitor General, Counsel of Rec-ord, Stuart F. Delery, Acting AssistantAttorney General, Edwin S. Kneedler,Deputy Solicitor General, Anthony A.Yang, Assistant to the Solicitor General,Douglas N. Letter, Thomas M. Bondy,Daniel J. Lenerz, Henry C. Whitaker, At-torneys, Department of Justice, Washing-ton, DC, for Petitioners.

For U.S. Supreme Court briefs, see:

2012 WL 5078759 (Reply.Brief)

2012 WL 4361439 (Resp.Brief)

2012 WL 3090949 (Pet.Brief)

Justice ALITO delivered the opinion ofthe Court.

Section 702 of the Foreign IntelligenceSurveillance Act of 1978, 50 U.S.C.§ 1881a (2006 ed., Supp. V), allows theAttorney General and the Director of Na-tional Intelligence to acquire foreign intel-ligence information by jointly authorizingthe surveillance of individuals who are not‘‘United States persons’’ 1 and are reason-ably believed to be located outside theUnited States. Before doing so, the Attor-ney General and the Director of NationalIntelligence normally must obtain the For-eign Intelligence Surveillance Court’s ap-proval. Respondents are United Statespersons whose work, they allege, requiresthem to engage in sensitive internationalcommunications with individuals who theybelieve are likely targets of surveillanceunder § 1881a. Respondents seek a decla-ration that § 1881a is unconstitutional, aswell as an injunction against § 1881a-au-thorized surveillance. The question beforeus is whether respondents have Article IIIstanding to seek this prospective relief.

1. The term ‘‘United States person’’ includescitizens of the United States, aliens admittedfor permanent residence, and certain associa-

tions and corporations. 50 U.S.C. § 1801(i);

see § 1881(a).


Respondents assert that they can estab-lish injury in fact because there is anobjectively reasonable likelihood that theircommunications will be acquired under§ 1881a at some point in the future. Butrespondents’ theory of future injury is toospeculative to satisfy the well-establishedrequirement that threatened injury mustbe ‘‘certainly impending.’’ E.g., Whitmorev. Arkansas, 495 U.S. 149, 158, 110 S.Ct.1717, 109 L.Ed.2d 135 (1990). And even ifrespondents could demonstrate that thethreatened injury is certainly impending,they still would not be able to establishthat this injury is fairly traceable to§ 1881a. As an alternative argument, re-spondents contend that they are sufferingpresent injury because the risk of § 1881a-authorized surveillance already has forcedthem to take costly and burdensome meas-ures to protect the confidentiality of theirinternational communications. But re-spondents cannot manufacture standing bychoosing to make expenditures based onhypothetical future harm that is not cer-tainly impending. We therefore hold thatrespondents lack Article III standing.

I

A

In 1978, after years of debate, Congressenacted the Foreign Intelligence Surveil-lance Act (FISA) to authorize and regulatecertain governmental electronic surveil-lance of communications for foreign intelli-gence purposes. See 92 Stat. 1783, 50U.S.C. § 1801 et seq.; 1 D. Kris & J.Wilson, National Security Investigations &Prosecutions §§ 3.1, 3.7 (2d ed. 2012)(hereinafter Kris & Wilson). In enactingFISA, Congress legislated against thebackdrop of our decision in United Statesv. United States Dist. Court for EasternDist. of Mich., 407 U.S. 297, 92 S.Ct. 2125,32 L.Ed.2d 752 (1972) (Keith ), in which weexplained that the standards and proce-

dures that law enforcement officials mustfollow when conducting ‘‘surveillance of‘ordinary crime’ ’’ might not be required inthe context of surveillance conducted fordomestic national-security purposes. Id.,at 322–323, 92 S.Ct. 2125. Although theKeith opinion expressly disclaimed any rul-ing ‘‘on the scope of the President’s sur-veillance power with respect to the activi-ties of foreign powers,’’ id., at 308, 92 S.Ct.2125, it implicitly suggested that a specialframework for foreign intelligence surveil-lance might be constitutionally permissible,see id., at 322–323, 92 S.Ct. 2125.

In constructing such a framework forforeign intelligence surveillance, Congresscreated two specialized courts. In FISA,Congress authorized judges of the ForeignIntelligence Surveillance Court (FISC) toapprove electronic surveillance for foreignintelligence purposes if there is probablecause to believe that ‘‘the target of theelectronic surveillance is a foreign poweror an agent of a foreign power,’’ and thateach of the specific ‘‘facilities or places atwhich the electronic surveillance is direct-ed is being used, or is about to be used, bya foreign power or an agent of a foreignpower.’’ § 105(a)(3), 92 Stat. 1790; see§ 105(b)(1)(A), (b)(1)(B), ibid.; 1 Kris &Wilson § 7:2, at 194–195; id., § 16:2, at528–529. Additionally, Congress vestedthe Foreign Intelligence SurveillanceCourt of Review with jurisdiction to reviewany denials by the FISC of applications forelectronic surveillance. § 103(b), 92 Stat.1788; 1 Kris & Wilson § 5:7, at 151–153.

In the wake of the September 11th at-tacks, President George W. Bush author-ized the National Security Agency (NSA)to conduct warrantless wiretapping of tele-phone and e-mail communications whereone party to the communication was locat-ed outside the United States and a partici-pant in ‘‘the call was reasonably believedto be a member or agent of al Qaeda or an


affiliated terrorist organization,’’ App. toPet. for Cert. 403a. See id., at 263a–265a,268a, 273a–279a, 292a–293a; AmericanCivil Liberties Union v. NSA, 493 F.3d644, 648 (C.A.6 2007) (ACLU ) (opinion ofBatchelder, J.). In January 2007, theFISC issued orders authorizing the Gov-ernment to target international communi-cations into or out of the United Stateswhere there was probable cause to believethat one participant to the communicationwas a member or agent of al Qaeda or anassociated terrorist organization. App. toPet. for Cert. 312a, 398a, 405a. TheseFISC orders subjected any electronic sur-veillance that was then occurring underthe NSA’s program to the approval of theFISC. Id., at 405a; see id., at 312a, 404a.After a FISC Judge subsequently nar-rowed the FISC’s authorization of suchsurveillance, however, the Executive askedCongress to amend FISA so that it wouldprovide the intelligence community withadditional authority to meet the challengesof modern technology and internationalterrorism. Id., at 315a–318a, 331a–333a,398a; see id., at 262a, 277a–279a, 287a.

When Congress enacted the FISAAmendments Act of 2008 (FISA Amend-ments Act), 122 Stat. 2436, it left much ofFISA intact, but it ‘‘established a new andindependent source of intelligence collec-tion authority, beyond that granted in tra-ditional FISA.’’ 1 Kris & Wilson § 9:11, at349–350. As relevant here, § 702 of FISA,50 U.S.C. § 1881a (2006 ed., Supp. V),which was enacted as part of the FISAAmendments Act, supplements pre-exist-ing FISA authority by creating a newframework under which the Governmentmay seek the FISC’s authorization of cer-tain foreign intelligence surveillance tar-geting the communications of non-U.S.

persons located abroad. Unlike traditionalFISA surveillance, § 1881a does not re-quire the Government to demonstrateprobable cause that the target of the elec-tronic surveillance is a foreign power oragent of a foreign power. Compare§ 1805(a)(2)(A), (a)(2)(B), with§ 1881a(d)(1), (i)(3)(A); 638 F.3d 118, 126(C.A.2 2011); 1 Kris & Wilson § 16:16, at584. And, unlike traditional FISA,§ 1881a does not require the Governmentto specify the nature and location of eachof the particular facilities or places atwhich the electronic surveillance will occur.Compare § 1805(a)(2)(B), (c)(1) (2006 ed.and Supp. V), with § 1881a(d)(1), (g)(4),(i)(3)(A); 638 F.3d, at 125–126; 1 Kris &Wilson § 16:16, at 585.2

The present case involves a constitution-al challenge to § 1881a. Surveillance un-der § 1881a is subject to statutory condi-tions, judicial authorization, congressionalsupervision, and compliance with theFourth Amendment. Section 1881a pro-vides that, upon the issuance of an orderfrom the Foreign Intelligence SurveillanceCourt, ‘‘the Attorney General and the Di-rector of National Intelligence may author-ize jointly, for a period of up to 1 year TTT,the targeting of persons reasonably be-lieved to be located outside the UnitedStates to acquire foreign intelligence infor-mation.’’ § 1881a(a). Surveillance under§ 1881a may not be intentionally targetedat any person known to be in the UnitedStates or any U.S. person reasonably be-lieved to be located abroad. § 1881a(b)(1)–(3); see also § 1801(i). Additionally, ac-quisitions under § 1881a must comportwith the Fourth Amendment.§ 1881a(b)(5). Moreover, surveillance un-der § 1881a is subject to congressionaloversight and several types of Executive

2. Congress recently reauthorized the FISAAmendments Act for another five years. See

126 Stat. 1631.


Branch review. See § 1881a(f)(2), (l );Amnesty Int’l USA v. McConnell, 646F.Supp.2d 633, 640–641 (S.D.N.Y.2009).

Section 1881a mandates that the Gov-ernment obtain the Foreign IntelligenceSurveillance Court’s approval of ‘‘target-ing’’ procedures, ‘‘minimization’’ proce-dures, and a governmental certification re-garding proposed surveillance. § 1881a(a),(c)(1), (i)(2), (i)(3). Among other things,the Government’s certification must attestthat (1) procedures are in place ‘‘that havebeen approved, have been submitted forapproval, or will be submitted with thecertification for approval by the [FISC]that are reasonably designed’’ to ensurethat an acquisition is ‘‘limited to targetingpersons reasonably believed to be locatedoutside’’ the United States; (2) minimiza-tion procedures adequately restrict the ac-quisition, retention, and dissemination ofnonpublic information about unconsentingU.S. persons, as appropriate; (3) guide-lines have been adopted to ensure compli-ance with targeting limits and the FourthAmendment; and (4) the procedures andguidelines referred to above comport withthe Fourth Amendment. § 1881a(g)(2);see § 1801(h).

The Foreign Intelligence SurveillanceCourt’s role includes determining whetherthe Government’s certification contains therequired elements. Additionally, theCourt assesses whether the targeting pro-cedures are ‘‘reasonably designed’’ (1) to‘‘ensure that an acquisition TTT is limitedto targeting persons reasonably believed tobe located outside the United States’’ and(2) to ‘‘prevent the intentional acquisitionof any communication as to which thesender and all intended recipients are

known TTT to be located in the UnitedStates.’’ § 1881a(i)(2)(B). The Court ana-lyzes whether the minimization procedures‘‘meet the definition of minimization proce-dures under section 1801(h) TTT, as appro-priate.’’ § 1881a(i)(2)(C). The Court alsoassesses whether the targeting and mini-mization procedures are consistent withthe statute and the Fourth Amendment.See § 1881a(i)(3)(A).3

B

Respondents are attorneys and humanrights, labor, legal, and media organiza-tions whose work allegedly requires themto engage in sensitive and sometimes priv-ileged telephone and e-mail communica-tions with colleagues, clients, sources, andother individuals located abroad. Respon-dents believe that some of the people withwhom they exchange foreign intelligenceinformation are likely targets of surveil-lance under § 1881a. Specifically, respon-dents claim that they communicate bytelephone and e-mail with people the Gov-ernment ‘‘believes or believed to be associ-ated with terrorist organizations,’’ ‘‘peoplelocated in geographic areas that are a spe-cial focus’’ of the Government’s counterter-rorism or diplomatic efforts, and activistswho oppose governments that are sup-ported by the United States Government.App. to Pet. for Cert. 399a.

Respondents claim that § 1881a compro-mises their ability to locate witnesses, cul-tivate sources, obtain information, andcommunicate confidential information totheir clients. Respondents also assert thatthey ‘‘have ceased engaging’’ in certaintelephone and e-mail conversations. Id.,at 400a. According to respondents, the

3. The dissent attempts to downplay the safe-guards established by § 1881a. See post, at1156 – 1157 (opinion of BREYER, J.). Nota-bly, the dissent does not directly acknowledgethat § 1881a surveillance must comport with

the Fourth Amendment, see § 1881a(b)(5),and that the Foreign Intelligence SurveillanceCourt must assess whether targeting and min-imization procedures are consistent with theFourth Amendment, see § 1881a(i)(3)(A).


threat of surveillance will compel them totravel abroad in order to have in-personconversations. In addition, respondentsdeclare that they have undertaken ‘‘costlyand burdensome measures’’ to protect theconfidentiality of sensitive communications.Ibid.

C

On the day when the FISA AmendmentsAct was enacted, respondents filed thisaction seeking (1) a declaration that§ 1881a, on its face, violates the FourthAmendment, the First Amendment, ArticleIII, and separation-of-powers principlesand (2) a permanent injunction against theuse of § 1881a. Respondents assert whatthey characterize as two separate theoriesof Article III standing. First, they claimthat there is an objectively reasonable like-lihood that their communications will beacquired under § 1881a at some point inthe future, thus causing them injury. Sec-ond, respondents maintain that the risk ofsurveillance under § 1881a is so substan-tial that they have been forced to takecostly and burdensome measures to pro-tect the confidentiality of their internation-al communications; in their view, the coststhey have incurred constitute present inju-ry that is fairly traceable to § 1881a.

After both parties moved for summaryjudgment, the District Court held that re-spondents do not have standing. McCon-nell, 646 F.Supp.2d, at 635. On appeal,however, a panel of the Second Circuitreversed. The panel agreed with respon-dents’ argument that they have standingdue to the objectively reasonable likelihoodthat their communications will be inter-cepted at some time in the future. 638F.3d, at 133, 134, 139. In addition, thepanel held that respondents have estab-lished that they are suffering ‘‘present in-juries in fact—economic and professionalharms—stemming from a reasonable fear

of future harmful government conduct.’’Id., at 138. The Second Circuit deniedrehearing en banc by an equally dividedvote. 667 F.3d 163 (2011).

Because of the importance of the issueand the novel view of standing adopted bythe Court of Appeals, we granted certiora-ri, 566 U.S. ––––, 132 S.Ct. 2431, 182L.Ed.2d 1061 (2012), and we now reverse.

II

[1, 2] Article III of the Constitutionlimits federal courts’ jurisdiction to certain‘‘Cases’’ and ‘‘Controversies.’’ As we haveexplained, ‘‘[n]o principle is more funda-mental to the judiciary’s proper role in oursystem of government than the constitu-tional limitation of federal-court jurisdic-tion to actual cases or controversies.’’ Da-imlerChrysler Corp. v. Cuno, 547 U.S. 332,341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)(internal quotation marks omitted);Raines v. Byrd, 521 U.S. 811, 818, 117S.Ct. 2312, 138 L.Ed.2d 849 (1997) (inter-nal quotation marks omitted); see, e.g.,Summers v. Earth Island Institute, 555U.S. 488, 492–493, 129 S.Ct. 1142, 173L.Ed.2d 1 (2009). ‘‘One element of thecase-or-controversy requirement’’ is thatplaintiffs ‘‘must establish that they havestanding to sue.’’ Raines, supra, at 818,117 S.Ct. 2312; see also Summers, supra,at 492–493, 129 S.Ct. 1142; DaimlerChrys-ler Corp., supra, at 342, 126 S.Ct. 1854;Lujan v. Defenders of Wildlife, 504 U.S.555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992).

[3, 4] The law of Article III standing,which is built on separation-of-powersprinciples, serves to prevent the judicialprocess from being used to usurp the pow-ers of the political branches. Summers,supra, at 492–493, 129 S.Ct. 1142; Daim-lerChrysler Corp., supra, at 341–342, 353,126 S.Ct. 1854; Raines, supra, at 818–820,117 S.Ct. 2312; Valley Forge Christian


College v. Americans United for Separa-tion of Church and State, Inc., 454 U.S.464, 471–474, 102 S.Ct. 752, 70 L.Ed.2d 700(1982); Schlesinger v. Reservists Comm. toStop the War, 418 U.S. 208, 221–222, 94S.Ct. 2925, 41 L.Ed.2d 706 (1974). Inkeeping with the purpose of this doctrine,‘‘[o]ur standing inquiry has been especiallyrigorous when reaching the merits of thedispute would force us to decide whetheran action taken by one of the other twobranches of the Federal Government wasunconstitutional.’’ Raines, supra, at 819–820, 117 S.Ct. 2312; see Valley ForgeChristian College, supra, at 473–474, 102S.Ct. 752; Schlesinger, supra, at 221–222,94 S.Ct. 2925. ‘‘Relaxation of standingrequirements is directly related to the ex-pansion of judicial power,’’ United States v.Richardson, 418 U.S. 166, 188, 94 S.Ct.2940, 41 L.Ed.2d 678 (1974) (Powell, J.,concurring); see also Summers, supra, at492–493, 129 S.Ct. 1142; Schlesinger, su-pra, at 222, 94 S.Ct. 2925, and we haveoften found a lack of standing in cases inwhich the Judiciary has been requested toreview actions of the political branches inthe fields of intelligence gathering and for-eign affairs, see, e.g., Richardson, supra,at 167–170, 94 S.Ct. 2940 (plaintiff lackedstanding to challenge the constitutionalityof a statute permitting the Central Intelli-gence Agency to account for its expendi-tures solely on the certificate of the CIADirector); Schlesinger, supra, at 209–211,94 S.Ct. 2925 (plaintiffs lacked standing tochallenge the Armed Forces Reservemembership of Members of Congress);Laird v. Tatum, 408 U.S. 1, 11–16, 92 S.Ct.2318, 33 L.Ed.2d 154 (1972) (plaintiffslacked standing to challenge an Army in-telligence-gathering program).

[5, 6] To establish Article III standing,an injury must be ‘‘concrete, particular-ized, and actual or imminent; fairly tracea-ble to the challenged action; and redressa-

ble by a favorable ruling.’’ Monsanto Co.v. Geertson Seed Farms, 561 U.S. ––––,––––, 130 S.Ct. 2743, 2752, 177 L.Ed.2d 461(2010); see also Summers, supra, at 493,129 S.Ct. 1142; Defenders of Wildlife, 504U.S., at 560–561, 112 S.Ct. 2130. ‘‘Al-though imminence is concededly a some-what elastic concept, it cannot be stretchedbeyond its purpose, which is to ensure thatthe alleged injury is not too speculative forArticle III purposes—that the injury iscertainly impending.’’ Id., at 565, n. 2, 112S.Ct. 2130 (internal quotation marks omit-ted). Thus, we have repeatedly reiteratedthat ‘‘threatened injury must be certainlyimpending to constitute injury in fact,’’and that ‘‘[a]llegations of possible futureinjury’’ are not sufficient. Whitmore, 495U.S., at 158, 110 S.Ct. 1717 (emphasis add-ed; internal quotation marks omitted); seealso Defenders of Wildlife, supra, at 565, n.2, 567, n. 3, 112 S.Ct. 2130; see Daimler-Chrysler Corp., supra, at 345, 126 S.Ct.1854; Friends of the Earth, Inc. v. Laid-law Environmental Services (TOC), Inc.,528 U.S. 167, 190, 120 S.Ct. 693, 145L.Ed.2d 610 (2000); Babbitt v. FarmWorkers, 442 U.S. 289, 298, 99 S.Ct. 2301,60 L.Ed.2d 895 (1979).

III

A

Respondents assert that they can estab-lish injury in fact that is fairly traceable to§ 1881a because there is an objectivelyreasonable likelihood that their communi-cations with their foreign contacts will beintercepted under § 1881a at some point inthe future. This argument fails. As aninitial matter, the Second Circuit’s ‘‘objec-tively reasonable likelihood’’ standard isinconsistent with our requirement that‘‘threatened injury must be certainly im-pending to constitute injury in fact.’’Whitmore, supra, at 158, 110 S.Ct. 1717(internal quotation marks omitted); see


also DaimlerChrysler Corp., supra, at 345,126 S.Ct. 1854; Laidlaw, supra, at 190,120 S.Ct. 693; Defenders of Wildlife, su-pra, at 565, n. 2, 112 S.Ct. 2130; Babbitt,supra, at 298, 99 S.Ct. 2301. Further-more, respondents’ argument rests ontheir highly speculative fear that: (1) theGovernment will decide to target the com-munications of non-U.S. persons withwhom they communicate; (2) in doing so,the Government will choose to invoke itsauthority under § 1881a rather than utiliz-ing another method of surveillance; (3) theArticle III judges who serve on the For-eign Intelligence Surveillance Court willconclude that the Government’s proposedsurveillance procedures satisfy § 1881a’smany safeguards and are consistent withthe Fourth Amendment; (4) the Govern-ment will succeed in intercepting the com-munications of respondents’ contacts; and(5) respondents will be parties to the par-ticular communications that the Govern-ment intercepts. As discussed below, re-spondents’ theory of standing, which relieson a highly attenuated chain of possibili-ties, does not satisfy the requirement thatthreatened injury must be certainly im-pending. See Summers, supra, at 496,129 S.Ct. 1142 (rejecting a standing theorypremised on a speculative chain of possibil-ities); Whitmore, supra, at 157–160, 110S.Ct. 1717 (same). Moreover, even if re-spondents could demonstrate injury infact, the second link in the above-describedchain of contingencies—which amounts tomere speculation about whether surveil-lance would be under § 1881a or someother authority—shows that respondentscannot satisfy the requirement that anyinjury in fact must be fairly traceable to§ 1881a.

[7] First, it is speculative whether theGovernment will imminently target com-munications to which respondents are par-ties. Section 1881a expressly provides

that respondents, who are U.S. persons,cannot be targeted for surveillance under§ 1881a. See § 1881a(b)(1)–(3); 667 F.3d,at 173 (Raggi, J., dissenting from denial ofrehearing en banc). Accordingly, it is nosurprise that respondents fail to offer anyevidence that their communications havebeen monitored under § 1881a, a failurethat substantially undermines their stand-ing theory. See ACLU, 493 F.3d, at 655–656, 673–674 (opinion of Batchelder, J.)(concluding that plaintiffs who lacked evi-dence that their communications had beenintercepted did not have standing to chal-lenge alleged NSA surveillance). Indeed,respondents do not even allege that theGovernment has sought the FISC’s ap-proval for surveillance of their communica-tions. Accordingly, respondents’ theorynecessarily rests on their assertion thatthe Government will target other individu-als—namely, their foreign contacts.

[8] Yet respondents have no actualknowledge of the Government’s § 1881atargeting practices. Instead, respondentsmerely speculate and make assumptionsabout whether their communications withtheir foreign contacts will be acquired un-der § 1881a. See 667 F.3d, at 185–187(opinion of Raggi, J.). For example, jour-nalist Christopher Hedges states: ‘‘I haveno choice but to assume that any of myinternational communications may be sub-ject to government surveillance, and Ihave to make decisions TTT in light of thatassumption.’’ App. to Pet. for Cert. 366a(emphasis added and deleted). Similarly,attorney Scott McKay asserts that, ‘‘[b]e-cause of the [FISA Amendments Act], wenow have to assume that every one of ourinternational communications may bemonitored by the government.’’ Id., at375a (emphasis added); see also id., at337a, 343a–344a, 350a, 356a. ‘‘The partyinvoking federal jurisdiction bears the bur-den of establishing’’ standing—and, at the


summary judgment stage, such a party‘‘can no longer rest on TTT ‘mere allega-tions,’ but must ‘set forth’ by affidavit orother evidence ‘specific facts.’ ’’ Defendersof Wildlife, 504 U.S., at 561, 112 S.Ct.2130. Respondents, however, have setforth no specific facts demonstrating thatthe communications of their foreign con-tacts will be targeted. Moreover, because§ 1881a at most authorizes—but does notmandate or direct—the surveillance thatrespondents fear, respondents’ allegationsare necessarily conjectural. See UnitedPresbyterian Church in U.S.A. v. Reagan,738 F.2d 1375, 1380 (C.A.D.C.1984) (SCA-LIA, J.); 667 F.3d, at 187 (opinion ofRaggi, J.). Simply put, respondents canonly speculate as to how the AttorneyGeneral and the Director of National In-telligence will exercise their discretion indetermining which communications to tar-get.4

[9] Second, even if respondents coulddemonstrate that the targeting of theirforeign contacts is imminent, respondentscan only speculate as to whether theGovernment will seek to use § 1881a-au-thorized surveillance (rather than othermethods) to do so. The Government hasnumerous other methods of conductingsurveillance, none of which is challengedhere. Even after the enactment of theFISA Amendments Act, for example, theGovernment may still conduct electronic

surveillance of persons abroad under theolder provisions of FISA so long as itsatisfies the applicable requirements, in-cluding a demonstration of probablecause to believe that the person is a for-eign power or agent of a foreign power.See § 1805. The Government may alsoobtain information from the intelligenceservices of foreign nations. Brief for Pe-titioners 33. And, although we do notreach the question, the Government con-tends that it can conduct FISA-exempthuman and technical surveillance pro-grams that are governed by ExecutiveOrder 12333. See Exec. Order No.12333, §§ 1.4, 2.1–2.5, 3 CFR 202, 210–212 (1981), reprinted as amended, notefollowing 50 U.S.C. § 401, pp. 543, 547–548. Even if respondents could demon-strate that their foreign contacts will im-minently be targeted—indeed, even ifthey could show that interception of theirown communications will imminently oc-cur—they would still need to show thattheir injury is fairly traceable to § 1881a.But, because respondents can only specu-late as to whether any (asserted) inter-ception would be under § 1881a or someother authority, they cannot satisfy the‘‘fairly traceable’’ requirement.

Third, even if respondents could showthat the Government will seek the ForeignIntelligence Surveillance Court’s authori-zation to acquire the communications of

4. It was suggested at oral argument that theGovernment could help resolve the standinginquiry by disclosing to a court, perhapsthrough an in camera proceeding, (1) whetherit is intercepting respondents’ communica-tions and (2) what targeting or minimizationprocedures it is using. See Tr. of Oral Arg.13–14, 44, 56. This suggestion is puzzling.As an initial matter, it is respondents’ burdento prove their standing by pointing to specificfacts, Lujan v. Defenders of Wildlife, 504 U.S.555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992), not the Government’s burden to dis-prove standing by revealing details of its sur-

veillance priorities. Moreover, this type ofhypothetical disclosure proceeding would al-low a terrorist (or his attorney) to determinewhether he is currently under U.S. surveil-lance simply by filing a lawsuit challengingthe Government’s surveillance program.Even if the terrorist’s attorney were to complywith a protective order prohibiting him fromsharing the Government’s disclosures with hisclient, the court’s postdisclosure decisionabout whether to dismiss the suit for lack ofstanding would surely signal to the terroristwhether his name was on the list of surveil-lance targets.


respondents’ foreign contacts under§ 1881a, respondents can only speculate asto whether that court will authorize suchsurveillance. In the past, we have beenreluctant to endorse standing theories thatrequire guesswork as to how independentdecisionmakers will exercise their judg-ment. In Whitmore, for example, theplaintiff’s theory of standing hinged large-ly on the probability that he would obtainfederal habeas relief and be convictedupon retrial. In holding that the plaintifflacked standing, we explained that ‘‘[i]t isjust not possible for a litigant to prove inadvance that the judicial system will leadto any particular result in his case.’’ 495U.S., at 159–160, 110 S.Ct. 1717; see De-fenders of Wildlife, 504 U.S., at 562, 112S.Ct. 2130.

We decline to abandon our usual reluc-tance to endorse standing theories thatrest on speculation about the decisions ofindependent actors. Section 1881a man-dates that the Government must obtain theForeign Intelligence Surveillance Court’sapproval of targeting procedures, mini-mization procedures, and a governmentalcertification regarding proposed surveil-lance. § 1881a(a), (c)(1), (i)(2), (i)(3). TheCourt must, for example, determinewhether the Government’s procedures are‘‘reasonably designed TTT to minimize theacquisition and retention, and prohibit thedissemination, of nonpublicly available in-

formation concerning unconsenting UnitedStates persons.’’ § 1801(h); see§ 1881a(i)(2), (i)(3)(A). And, critically, theCourt must also assess whether the Gov-ernment’s targeting and minimization pro-cedures comport with the Fourth Amend-ment. § 1881a(i)(3)(A).

Fourth, even if the Government were toobtain the Foreign Intelligence Surveil-lance Court’s approval to target respon-dents’ foreign contacts under § 1881a, it isunclear whether the Government wouldsucceed in acquiring the communicationsof respondents’ foreign contacts. Andfifth, even if the Government were to con-duct surveillance of respondents’ foreigncontacts, respondents can only speculateas to whether their own communicationswith their foreign contacts would be inci-dentally acquired.

[10] In sum, respondents’ speculativechain of possibilities does not establishthat injury based on potential future sur-veillance is certainly impending or is fairlytraceable to § 1881a.5

B

[11] Respondents’ alternative argu-ment—namely, that they can establishstanding based on the measures that theyhave undertaken to avoid § 1881a-author-ized surveillance—fares no better. Re-

5. Our cases do not uniformly require plaintiffsto demonstrate that it is literally certain thatthe harms they identify will come about. Insome instances, we have found standingbased on a ‘‘substantial risk’’ that the harmwill occur, which may prompt plaintiffs toreasonably incur costs to mitigate or avoidthat harm. Monsanto Co. v. Geertson SeedFarms, 561 U.S. ––––, ––––, 130 S.Ct. 2743,2754–2755, 177 L.Ed.2d 461 (2010). See alsoPennell v. City of San Jose, 485 U.S. 1, 8, 108S.Ct. 849, 99 L.Ed.2d 1 (1988); Blum v. Yar-etsky, 457 U.S. 991, 1000–1001, 102 S.Ct.2777, 73 L.Ed.2d 534 (1982); Babbitt v. FarmWorkers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60

L.Ed.2d 895 (1979). But to the extent thatthe ‘‘substantial risk’’ standard is relevant andis distinct from the ‘‘clearly impending’’ re-quirement, respondents fall short of even thatstandard, in light of the attenuated chain ofinferences necessary to find harm here. Seesupra, at 1148 – 1150. In addition, plaintiffsbear the burden of pleading and proving con-crete facts showing that the defendant’s actu-al action has caused the substantial risk ofharm. Plaintiffs cannot rely on speculationabout ‘‘ ‘the unfettered choices made by inde-pendent actors not before the court.’ ’’ De-fenders of Wildlife, 504 U.S., at 562, 112 S.Ct.2130.


spondents assert that they are sufferingongoing injuries that are fairly traceable to§ 1881a because the risk of surveillanceunder § 1881a requires them to take costlyand burdensome measures to protect theconfidentiality of their communications.Respondents claim, for instance, that thethreat of surveillance sometimes compelsthem to avoid certain e-mail and phoneconversations, to ‘‘tal[k] in generalitiesrather than specifics,’’ or to travel so thatthey can have in-person conversations.Tr. of Oral Arg. 38; App. to Pet. for Cert.338a, 345a, 367a, 400a.6 The Second Cir-cuit panel concluded that, because respon-dents are already suffering such ongoinginjuries, the likelihood of interception un-der § 1881a is relevant only to the ques-tion whether respondents’ ongoing injuriesare ‘‘fairly traceable’’ to § 1881a. See 638F.3d, at 133–134; 667 F.3d, at 180 (opinionof Raggi, J.). Analyzing the ‘‘fairly tracea-ble’’ element of standing under a relaxedreasonableness standard, see 638 F.3d, at133–134, the Second Circuit then held that‘‘plaintiffs have established that they suf-fered present injuries in fact—economicand professional harms—stemming from areasonable fear of future harmful govern-ment conduct,’’ id., at 138.

[12] The Second Circuit’s analysis im-properly allowed respondents to establishstanding by asserting that they sufferpresent costs and burdens that are basedon a fear of surveillance, so long as thatfear is not ‘‘fanciful, paranoid, or otherwiseunreasonable.’’ See id., at 134. This im-properly waters down the fundamental re-quirements of Article III. Respondents’

contention that they have standing becausethey incurred certain costs as a reasonablereaction to a risk of harm is unavailing—because the harm respondents seek toavoid is not certainly impending. In otherwords, respondents cannot manufacturestanding merely by inflicting harm onthemselves based on their fears of hypo-thetical future harm that is not certainlyimpending. See Pennsylvania v. NewJersey, 426 U.S. 660, 664, 96 S.Ct. 2333, 49L.Ed.2d 124 (1976) (per curiam ); Nation-al Family Planning & ReproductiveHealth Assn., Inc., 468 F.3d 826, 831(C.A.D.C.2006). Any ongoing injuries thatrespondents are suffering are not fairlytraceable to § 1881a.

If the law were otherwise, an enterpris-ing plaintiff would be able to secure alower standard for Article III standingsimply by making an expenditure based ona nonparanoid fear. As Judge Raggi accu-rately noted, under the Second Circuitpanel’s reasoning, respondents could, ‘‘forthe price of a plane ticket, TTT transformtheir standing burden from one requiring ashowing of actual or imminent TTT inter-ception to one requiring a showing thattheir subjective fear of such interception isnot fanciful, irrational, or clearly unreason-able.’’ 667 F.3d, at 180 (internal quotationmarks omitted). Thus, allowing respon-dents to bring this action based on coststhey incurred in response to a speculativethreat would be tantamount to accepting arepackaged version of respondents’ firstfailed theory of standing. See ACLU, 493F.3d, at 656–657 (opinion of Batchelder,J.).

6. For all the focus on respondents’ supposedneed to travel abroad in light of potential§ 1881a surveillance, respondents cite onlyone specific instance of travel: an attorney’strip to New York City to meet with otherlawyers. See App. to Pet. for Cert. 352a.This domestic travel had but a tenuous con-nection to § 1881a, because § 1881a-author-

ized acquisitions ‘‘may not intentionally target

any person known at the time of acquisition

to be located in the United States.’’

§ 1881a(b)(1); see also 667 F.3d 163, 202

(C.A.2 2011) (Jacobs, C.J., dissenting from

denial of rehearing en banc); id., at 185

(opinion of Raggi, J. (same)).


Another reason that respondents’ pres-ent injuries are not fairly traceable to§ 1881a is that even before § 1881a wasenacted, they had a similar incentive toengage in many of the countermeasuresthat they are now taking. See id., at 668–670. For instance, respondent ScottMcKay’s declaration describes—and thedissent heavily relies on—Mr. McKay’s‘‘knowledge’’ that thousands of communica-tions involving one of his clients were mon-itored in the past. App. to Pet. for Cert.370a; post, at 1156 – 1157, 1158 – 1159.But this surveillance was conducted pursu-ant to FISA authority that predated§ 1881a. See Brief for Petitioners 32, n.11; Al–Kidd v. Gonzales, No. 05–cv–93,2008 WL 5123009 (D.Idaho, Dec. 4, 2008).Thus, because the Government was alleg-edly conducting surveillance of Mr.McKay’s client before Congress enacted§ 1881a, it is difficult to see how the safe-guards that Mr. McKay now claims tohave implemented can be traced to§ 1881a.

Because respondents do not face athreat of certainly impending interceptionunder § 1881a, the costs that they haveincurred to avoid surveillance are simplythe product of their fear of surveillance,7

and our decision in Laird makes it clearthat such a fear is insufficient to createstanding. See 408 U.S., at 10–15, 92 S.Ct.2318. The plaintiffs in Laird argued thattheir exercise of First Amendment rightswas being ‘‘chilled by the mere existence,without more, of [the Army’s] investigativeand data-gathering activity.’’ Id., at 10, 92S.Ct. 2318. While acknowledging that pri-or cases had held that constitutional viola-

tions may arise from the chilling effect of‘‘regulations that fall short of a direct pro-hibition against the exercise of FirstAmendment rights,’’ the Court declaredthat none of those cases involved a ‘‘chill-ing effect aris[ing] merely from the indi-vidual’s knowledge that a governmentalagency was engaged in certain activities orfrom the individual’s concomitant fear that,armed with the fruits of those activities,the agency might in the future take someother and additional action detrimental tothat individual.’’ Id., at 11, 92 S.Ct. 2318.Because ‘‘[a]llegations of a subjective ‘chill’are not an adequate substitute for a claimof specific present objective harm or athreat of specific future harm,’’ id., at 13–14, 92 S.Ct. 2318, the plaintiffs in Laird—and respondents here—lack standing. Seeibid.; ACLU, supra, at 661–662 (opinion ofBatchelder, J.) (holding that plaintiffslacked standing because they ‘‘allege[d]only a subjective apprehension’’ of allegedNSA surveillance and ‘‘a personal (self-imposed) unwillingness to communicate’’);United Presbyterian Church, 738 F.2d, at1378 (holding that plaintiffs lacked stand-ing to challenge the legality of an Execu-tive Order relating to surveillance because‘‘the ‘chilling effect’ which is produced bytheir fear of being subjected to illegal sur-veillance and which deters them from con-ducting constitutionally protected activi-ties, is foreclosed as a basis for standing’’by Laird ).

For the reasons discussed above, re-spondents’ self-inflicted injuries are notfairly traceable to the Government’s pur-ported activities under § 1881a, and their

7. Although respondents’ alternative theory ofstanding rests primarily on choices that theyhave made based on their subjective fear ofsurveillance, respondents also assert thatthird parties might be disinclined to speakwith them due to a fear of surveillance. SeeApp. to Pet. for Cert. 372a–373a, 352a–353a.To the extent that such assertions are based

on anything other than conjecture, see De-fenders of Wildlife, 504 U.S., at 560, 112 S.Ct.

2130, they do not establish injury that is fairly

traceable to § 1881a, because they are based

on third parties’ subjective fear of surveil-

lance, see Laird, 408 U.S., at 10–14, 92 S.Ct.

2318.


subjective fear of surveillance does notgive rise to standing.

IV

A

Respondents incorrectly maintain that‘‘[t]he kinds of injuries incurred here—injuries incurred because of [respondents’]reasonable efforts to avoid greater injuriesthat are otherwise likely to flow from theconduct they challenge—are the samekinds of injuries that this Court held tosupport standing in cases such as’’ Laid-law, Meese v. Keene, 481 U.S. 465, 107S.Ct. 1862, 95 L.Ed.2d 415 (1987), andMonsanto. Brief for Respondents 24. Asan initial matter, none of these cases holdsor even suggests that plaintiffs can estab-lish standing simply by claiming that theyexperienced a ‘‘chilling effect’’ that result-ed from a governmental policy that doesnot regulate, constrain, or compel any ac-tion on their part. Moreover, each ofthese cases was very different from thepresent case.

In Laidlaw, plaintiffs’ standing wasbased on ‘‘the proposition that a company’scontinuous and pervasive illegal dischargesof pollutants into a river would cause near-by residents to curtail their recreationaluse of that waterway and would subjectthem to other economic and aestheticharms.’’ 528 U.S., at 184, 120 S.Ct. 693.Because the unlawful discharges of pollu-tants were ‘‘concededly ongoing,’’ the onlyissue was whether ‘‘nearby residents’’—who were members of the organizationalplaintiffs—acted reasonably in refrainingfrom using the polluted area. Id., at 183–184, 120 S.Ct. 693. Laidlaw is thereforequite unlike the present case, in which it isnot ‘‘concede[d]’’ that respondents wouldbe subject to unlawful surveillance but fortheir decision to take preventive measures.See ACLU, 493 F.3d, at 686 (opinion ofBatchelder, J.) (distinguishing Laidlaw on

this ground); id., at 689–690 (Gibbons, J.,concurring) (same); 667 F.3d, at 182–183(opinion of Raggi, J.) (same). Laidlawwould resemble this case only if (1) it wereundisputed that the Government was using§ 1881a-authorized surveillance to acquirerespondents’ communications and (2) thesole dispute concerned the reasonablenessof respondents’ preventive measures.

In Keene, the plaintiff challenged theconstitutionality of the Government’s deci-sion to label three films as ‘‘political propa-ganda.’’ 481 U.S., at 467, 107 S.Ct. 1862.The Court held that the plaintiff, who wasan attorney and a state legislator, hadstanding because he demonstrated,through ‘‘detailed affidavits,’’ that he‘‘could not exhibit the films without incur-ring a risk of injury to his reputation andof an impairment of his political career.’’Id., at 467, 473–475, 107 S.Ct. 1862. Un-like the present case, Keene involved‘‘more than a ‘subjective chill’ ’’ based onspeculation about potential governmentalaction; the plaintiff in that case was un-questionably regulated by the relevantstatute, and the films that he wished toexhibit had already been labeled as ‘‘politi-cal propaganda.’’ See ibid.; ACLU, 493F.3d, at 663–664 (opinion of Batchelder,J.); id., at 691 (Gibbons, J., concurring).

Monsanto, on which respondents alsorely, is likewise inapposite. In Monsanto,conventional alfalfa farmers had standingto seek injunctive relief because the agen-cy’s decision to deregulate a variety ofgenetically engineered alfalfa gave rise toa ‘‘significant risk of gene flow to non-genetically-engineered varieties of alfalfa.’’561 U.S., at ––––, 130 S.Ct., at 2755. Thestanding analysis in that case hinged onevidence that genetically engineered alfalfa‘‘ ‘seed fields [we]re currently being plant-ed in all the major alfalfa seed productionareas’ ’’; the bees that pollinate alfalfa‘‘ ‘have a range of at least two to ten


miles’ ’’; and the alfalfa seed farms wereconcentrated in an area well within thebees’ pollination range. Id., at –––– –––––, and n. 3, 130 S.Ct., at 2754–2755, andn. 3. Unlike the conventional alfalfa farm-ers in Monsanto, however, respondents inthe present case present no concrete evi-dence to substantiate their fears, but in-stead rest on mere conjecture about possi-ble governmental actions.

B

[13] Respondents also suggest thatthey should be held to have standing be-cause otherwise the constitutionality of§ 1881a could not be challenged. It wouldbe wrong, they maintain, to ‘‘insulate thegovernment’s surveillance activities frommeaningful judicial review.’’ Brief for Re-spondents 60. Respondents’ suggestion isboth legally and factually incorrect. First,‘‘ ‘[t]he assumption that if respondentshave no standing to sue, no one would havestanding, is not a reason to find stand-ing.’ ’’ Valley Forge Christian College, 454U.S., at 489, 102 S.Ct. 752; Schlesinger,418 U.S., at 227, 94 S.Ct. 2925; see alsoRichardson, 418 U.S., at 179, 94 S.Ct.2940; Raines, 521 U.S., at 835, 117 S.Ct.2312 (Souter, J., joined by GINSBURG, J.,concurring in judgment).

Second, our holding today by no meansinsulates § 1881a from judicial review. Asdescribed above, Congress created a com-prehensive scheme in which the ForeignIntelligence Surveillance Court evaluatesthe Government’s certifications, targetingprocedures, and minimization proce-dures—including assessing whether thetargeting and minimization procedurescomport with the Fourth Amendment.

§ 1881a(a), (c)(1), (i)(2), (i)(3). Any dissat-isfaction that respondents may have aboutthe Foreign Intelligence SurveillanceCourt’s rulings—or the congressional de-lineation of that court’s role—is irrelevantto our standing analysis.

Additionally, if the Government intendsto use or disclose information obtained orderived from a § 1881a acquisition in judi-cial or administrative proceedings, it mustprovide advance notice of its intent, andthe affected person may challenge the law-fulness of the acquisition. §§ 1806(c),1806(e), 1881e(a) (2006 ed. and Supp. V).8

Thus, if the Government were to prosecuteone of respondent-attorney’s foreignclients using § 1881a-authorized surveil-lance, the Government would be requiredto make a disclosure. Although the for-eign client might not have a viable FourthAmendment claim, see, e.g., United Statesv. Verdugo–Urquidez, 494 U.S. 259, 261,110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), itis possible that the monitoring of the tar-get’s conversations with his or her attor-ney would provide grounds for a claim ofstanding on the part of the attorney. Suchan attorney would certainly have a strong-er evidentiary basis for establishing stand-ing than do respondents in the presentcase. In such a situation, unlike in thepresent case, it would at least be clear thatthe Government had acquired the foreignclient’s communications using § 1881a-au-thorized surveillance.

Finally, any electronic communicationsservice provider that the Government di-rects to assist in § 1881a surveillance maychallenge the lawfulness of that directivebefore the FISC. § 1881a(h)(4), (6). In-

8. The possibility of judicial review in this con-text is not farfetched. In United States v.Damrah, 412 F.3d 618 (C.A.6 2005), for exam-ple, the Government made a pretrial disclo-sure that it intended to use FISA evidence in aprosecution; the defendant (unsuccessfully)

moved to suppress the FISA evidence, eventhough he had not been the target of thesurveillance; and the Sixth Circuit ultimatelyheld that FISA’s procedures are consistentwith the Fourth Amendment. See id., at 622,623, 625.


deed, at the behest of a service provider,the Foreign Intelligence SurveillanceCourt of Review previously analyzed theconstitutionality of electronic surveillancedirectives issued pursuant to a now-ex-pired set of FISA amendments. See In reDirectives Pursuant to Section 105B ofForeign Intelligence Surveillance Act, 551F.3d 1004, 1006–1016 (2008) (holding thatthe provider had standing and that thedirectives were constitutional).

* * *

We hold that respondents lack ArticleIII standing because they cannot demon-strate that the future injury they purport-edly fear is certainly impending and be-cause they cannot manufacture standingby incurring costs in anticipation of non-imminent harm. We therefore reverse thejudgment of the Second Circuit and re-mand the case for further proceedings con-sistent with this opinion.

It is so ordered.

Justice BREYER, with whom JusticeGINSBURG, Justice SOTOMAYOR, andJustice KAGAN join, dissenting.

The plaintiffs’ standing depends uponthe likelihood that the Government, actingunder the authority of 50 U.S.C. § 1881a(2006 ed., Supp. V), will harm them byintercepting at least some of their private,foreign, telephone, or e-mail conversations.In my view, this harm is not ‘‘speculative.’’Indeed it is as likely to take place as aremost future events that commonsense in-ference and ordinary knowledge of humannature tell us will happen. This Court hasoften found the occurrence of similar fu-ture events sufficiently certain to supportstanding. I dissent from the Court’s con-trary conclusion.

I

Article III specifies that the ‘‘judicialPower’’ of the United States extends only

to actual ‘‘Cases’’ and ‘‘Controversies.’’ § 2.It thereby helps to ensure that the legalquestions presented to the federal courtswill not take the form of abstract intellec-tual problems resolved in the ‘‘rarified at-mosphere of a debating society’’ but in-stead those questions will be presented ‘‘ina concrete factual context conducive to arealistic appreciation of the consequencesof judicial action.’’ Valley Forge ChristianCollege v. Americans United for Separa-tion of Church and State, Inc., 454 U.S.464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700(1982) (purpose of Article III); Lujan v.Defenders of Wildlife, 504 U.S. 555, 560,112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)(similar); Babbitt v. Farm Workers, 442U.S. 289, 297, 99 S.Ct. 2301, 60 L.Ed.2d895 (1979) (similar).

The Court has recognized that the pre-cise boundaries of the ‘‘case or controver-sy’’ requirement are matters of ‘‘degreeTTT not discernible by any precise test.’’Ibid. At the same time, the Court hasdeveloped a subsidiary set of legal rulesthat help to determine when the Constitu-tion’s requirement is met. See Lujan, 504U.S., at 560–561, 112 S.Ct. 2130; id., at583, 112 S.Ct. 2130 (Stevens, J., concurringin judgment). Thus, a plaintiff must have‘‘standing’’ to bring a legal claim. And aplaintiff has that standing, the Court hassaid, only if the action or omission that theplaintiff challenges has caused, or willcause, the plaintiff to suffer an injury thatis ‘‘concrete and particularized,’’ ‘‘actual orimminent,’’ and ‘‘redress[able] by a favor-able decision.’’ Id., at 560–561, 112 S.Ct.2130 (internal quotation marks omitted).

No one here denies that the Govern-ment’s interception of a private telephoneor e-mail conversation amounts to an inju-ry that is ‘‘concrete and particularized.’’Moreover, the plaintiffs, respondents here,seek as relief a judgment declaring uncon-stitutional (and enjoining enforcement of) a


statutory provision authorizing those inter-ceptions; and, such a judgment would re-dress the injury by preventing it. Thus,the basic question is whether the injury,i.e., the interception, is ‘‘actual or immi-nent.’’

II

A

Since the plaintiffs fear interceptions ofa kind authorized by § 1881a, it is impor-tant to understand just what kind of sur-veillance that section authorizes. Con-gress enacted § 1881a in 2008, as anamendment to the pre-existing Foreign In-telligence Surveillance Act of 1978, 50U.S.C. § 1801 et seq. Before the amend-ment, the Act authorized the Government(acting within the United States) to moni-tor private electronic communications be-tween the United States and a foreigncountry if (1) the Government’s purposewas, in significant part, to obtain foreignintelligence information (which includes in-formation concerning a ‘‘foreign power’’ or‘‘territory’’ related to our ‘‘national de-fense’’ or ‘‘security’’ or the ‘‘conduct of TTT

foreign affairs’’), (2) the Government’s sur-veillance target was ‘‘a foreign power or anagent of a foreign power,’’ and (3) theGovernment used surveillance proceduresdesigned to ‘‘minimize the acquisition andretention, and prohibit the dissemination,of’’ any private information acquired aboutAmericans. §§ 1801(e), (h), 1804(a).

In addition the Government had to ob-tain the approval of the Foreign Intelli-gence Surveillance Court. To do so, it hadto submit an application describing (1)each ‘‘specific target,’’ (2) the ‘‘nature ofthe information sought,’’ and (3) the ‘‘typeof communications or activities to be sub-jected to the surveillance.’’ § 1804(a). Ithad to certify that, in significant part, itsought to obtain foreign intelligence infor-mation. Ibid. It had to demonstrate

probable cause to believe that each specifictarget was ‘‘a foreign power or an agent ofa foreign power.’’ §§ 1804(a), 1805(a). Italso had to describe instance-specific pro-cedures to be used to minimize intrusionsupon Americans’ privacy (compliance withwhich the court subsequently could as-sess). §§ 1804(a), 1805(d)(3).

The addition of § 1881a in 2008 changedthis prior law in three important ways.First, it eliminated the requirement thatthe Government describe to the court eachspecific target and identify each facility atwhich its surveillance would be directed,thus permitting surveillance on a program-matic, not necessarily individualized, basis.§ 1881a(g). Second, it eliminated the re-quirement that a target be a ‘‘foreign pow-er or an agent of a foreign power.’’ Ibid.Third, it diminished the court’s authorityto insist upon, and eliminated its authorityto supervise, instance-specific privacy-in-trusion minimization procedures (thoughthe Government still must use court-ap-proved general minimization procedures).§ 1881a(e). Thus, using the authority of§ 1881a, the Government can obtain courtapproval for its surveillance of electroniccommunications between places within theUnited States and targets in foreign terri-tories by showing the court (1) that ‘‘asignificant purpose of the acquisition is toobtain foreign intelligence information,’’and (2) that it will use general targetingand privacy-intrusion minimization proce-dures of a kind that the court had previ-ously approved. § 1881a(g).

B

It is similarly important to understandthe kinds of communications in which theplaintiffs say they engage and which theybelieve the Government will intercept.Plaintiff Scott McKay, for example, says inan affidavit (1) that he is a lawyer; (2) thathe represented ‘‘Mr. Sami Omar Al–Hus-


sayen, who was acquitted in June 2004 onterrorism charges’’; (3) that he continuesto represent ‘‘Mr. Al–Hussayen, who, inaddition to facing criminal charges afterSeptember 11, was named as a defendantin several civil cases’’; (4) that he repre-sents Khalid Sheik Mohammed, a detainee,‘‘before the Military Commissions at Guan-tanamo Bay, Cuba’’; (5) that in represent-ing these clients he ‘‘communicate[s] bytelephone and email with people outsidethe United States, including Mr. Al–Hus-sayen himself,’’ ‘‘experts, investigators, at-torneys, family members TTT and otherswho are located abroad’’; and (6) that pri-or to 2008 ‘‘the U.S. government had inter-cepted some 10,000 telephone calls and20,000 email communications involving [hisclient] Al–Hussayen.’’ App. to Pet. forCert. 369a–371a.

Another plaintiff, Sylvia Royce, says inher affidavit (1) that she is an attorney;(2) that she ‘‘represent[s] MohammedouOuld Salahi, a prisoner who has been heldat Guantanamo Bay as an enemy combat-ant’’; (3) that, ‘‘[i]n connection with [her]representation of Mr. Salahi, [she] re-ceive[s] calls from time to time from Mr.Salahi’s brother, TTT a university studentin Germany’’; and (4) that she has beentold that the Government has threatenedSalahi ‘‘that his family members would bearrested and mistreated if he did not coop-erate.’’ Id., at 349a–351a.

The plaintiffs have noted that McKay nolonger represents Mohammed and Royceno longer represents Ould Salahi. Brieffor Respondents 15, n. 11. But thesechanges are irrelevant, for we assessstanding as of the time a suit is filed, seeDavis v. Federal Election Comm’n, 554U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d737 (2008), and in any event McKay him-self continues to represent Al Hussayen,his partner now represents Mohammed,and Royce continues to represent individu-

als held in the custody of the U.S. militaryoverseas.

A third plaintiff, Joanne Mariner, saysin her affidavit (1) that she is a humanrights researcher, (2) that ‘‘some of thework [she] do[es] involves trying to trackdown people who were rendered by theCIA to countries in which they were tor-tured’’; (3) that many of those people ‘‘theCIA has said are (or were) associated withterrorist organizations’’; and (4) that, to dothis research, she ‘‘communicate[s] by tele-phone and e-mail with TTT former detain-ees, lawyers for detainees, relatives of de-tainees, political activists, journalists, andfixers’’ ‘‘all over the world, including inJordan, Egypt, Pakistan, Afghanistan,[and] the Gaza Strip.’’ App. to Pet. forCert. 343a–344a.

Other plaintiffs, including lawyers, jour-nalists, and human rights researchers, sayin affidavits (1) that they have jobs thatrequire them to gather information fromforeigners located abroad; (2) that theyregularly communicate electronically (e.g.,by telephone or e-mail) with foreignerslocated abroad; and (3) that in these com-munications they exchange ‘‘foreign intelli-gence information’’ as the Act defines it.Id., at 334a–375a.

III

Several considerations, based upon therecord along with commonsense infer-ences, convince me that there is a veryhigh likelihood that Government, actingunder the authority of § 1881a, will inter-cept at least some of the communicationsjust described. First, the plaintiffs haveengaged, and continue to engage, in elec-tronic communications of a kind that the2008 amendment, but not the prior Act,authorizes the Government to intercept.These communications include discussionswith family members of those detained atGuantanamo, friends and acquaintances of


those persons, and investigators, expertsand others with knowledge of circum-stances related to terrorist activities.These persons are foreigners located out-side the United States. They are not ‘‘for-eign power[s]’’ or ‘‘agent[s] of TTT foreignpower[s].’’ And the plaintiffs state thatthey exchange with these persons ‘‘foreignintelligence information,’’ defined to in-clude information that ‘‘relates to’’ ‘‘inter-national terrorism’’ and ‘‘the national de-fense or the security of the United States.’’See 50 U.S.C. § 1801 (2006 ed. and Supp.V); see, e.g., App. to Pet. for Cert. 342a,366a, 373a–374a.

Second, the plaintiffs have a strong mo-tive to engage in, and the Government hasa strong motive to listen to, conversationsof the kind described. A lawyer repre-senting a client normally seeks to learn thecircumstances surrounding the crime (orthe civil wrong) of which the client is ac-cused. A fair reading of the affidavit ofScott McKay, for example, taken togetherwith elementary considerations of a law-yer’s obligation to his client, indicates thatMcKay will engage in conversations thatconcern what suspected foreign terrorists,such as his client, have done; in conversa-tions that concern his clients’ families, col-leagues, and contacts; in conversationsthat concern what those persons (or thoseconnected to them) have said and done, atleast in relation to terrorist activities; inconversations that concern the political, so-cial, and commercial environments inwhich the suspected terrorists have livedand worked; and so forth. See, e.g., id., at373a–374a. Journalists and human rightsworkers have strong similar motives toconduct conversations of this kind. See,e.g., id., at 342a (Declaration of JoanneMariner, stating that ‘‘some of the infor-mation [she] exchange[s] by telephone ande-mail relates to terrorism and counterter-rorism, and much of the information re-

lates to the foreign affairs of the UnitedStates’’).

At the same time, the Government has astrong motive to conduct surveillance ofconversations that contain material of thiskind. The Government, after all, seeks tolearn as much as it can reasonably learnabout suspected terrorists (such as thosedetained at Guantanamo), as well as abouttheir contacts and activities, along withthose of friends and family members. SeeExecutive Office of the President, Office ofManagement and Budget, Statement ofAdministration Policy on S. 2248, p. 4(Dec. 17, 2007) (‘‘Part of the value of the[new authority] is to enable the Intelli-gence Community to collect expeditiouslythe communications of terrorists in foreigncountries who may contact an associate inthe United States’’). And the Governmentis motivated to do so, not simply by thedesire to help convict those whom the Gov-ernment believes guilty, but also by thecritical, overriding need to protect Americafrom terrorism. See id., at 1 (‘‘Protectionof the American people and American in-terests at home and abroad requires ac-cess to timely, accurate, and insightful in-telligence on the capabilities, intentions,and activities of TTT terrorists’’).

Third, the Government’s past behaviorshows that it has sought, and hence will inall likelihood continue to seek, informationabout alleged terrorists and detaineesthrough means that include surveillance ofelectronic communications. As just point-ed out, plaintiff Scott McKay states thatthe Government (under the authority ofthe pre–2008 law) ‘‘intercepted some 10,-000 telephone calls and 20,000 email com-munications involving [his client] Mr. Al–Hussayen.’’ App. to Pet. for Cert. 370a.

Fourth, the Government has the capaci-ty to conduct electronic surveillance of thekind at issue. To some degree this capaci-ty rests upon technology available to the


Government. See 1 D. Kris & J. Wilson,National Security Investigations & Prose-cutions § 16:6, p. 562 (2d ed. 2012) (‘‘NSA’stechnological abilities are legendary’’); id.,§ 16:12, at 572–577 (describing the Nation-al Security Agency’s capacity to monitor‘‘very broad facilities’’ such as internationalswitches). See, e.g., Lichtblau & Risen,Spy Agency Mined Vast Data Trove, Offi-cials Report, N.Y. Times, Dec. 24, 2005, p.A1 (describing capacity to trace and toanalyze large volumes of communicationsinto and out of the United States); Licht-blau & Shane, Bush is Pressed Over NewReport on Surveillance, N.Y. Times, May12, 2006, p. A1 (reporting capacity to ob-tain access to records of many, if not most,telephone calls made in the United States);Priest & Arkin, A Hidden World, GrowingBeyond Control, Washington Post, July 19,2010, p. A1 (reporting that every day, col-lection systems at the National SecurityAgency intercept and store 1.7 billion e-mails, telephone calls and other types ofcommunications). Cf. Statement of Ad-ministration Policy on S. 2248, supra, at1156 (rejecting a provision of the Senatebill that would require intelligence analyststo count ‘‘the number of persons located inthe United States whose communicationswere reviewed’’ as ‘‘impossible to imple-ment’’ (internal quotation marks omitted)).This capacity also includes the Govern-ment’s authority to obtain the kind of in-formation here at issue from private carri-ers such as AT & T and Verizon. See 50U.S.C. § 1881a(h). We are further told byamici that the Government is expandingthat capacity. See Brief for ElectronicPrivacy Information Center et al. as 22–23(National Security Agency will be able toconduct surveillance of most electroniccommunications between domestic and for-eign points).

Of course, to exercise this capacity theGovernment must have intelligence courtauthorization. But the Government rarely

files requests that fail to meet the statuto-ry criteria. See Letter from RonaldWeich, Assistant Attorney General, to Jo-seph R. Biden, Jr., 1 (Apr. 30, 2012) (In2011, of the 1,676 applications to the intel-ligence court, two were withdrawn by theGovernment, and the remaining 1,674 wereapproved, 30 with some modification), on-line at http://www.justice.gov/nsd/foia/foialibrary/2011fisa-ltr.pdf. (as visited Feb. 22,2013, and available in Clerk of Court’s casefile). As the intelligence court itself hasstated, its review under § 1881a is ‘‘nar-rowly circumscribed.’’ In re ProceedingsRequired by § 702(i) of the FISA Amend-ments Act of 2008, No. Misc. 08–01 (Aug.17, 2008), p. 3. There is no reason tobelieve that the communications describedwould all fail to meet the conditions neces-sary for approval. Moreover, comparedwith prior law, § 1881a simplifies and thusexpedites the approval process, making itmore likely that the Government will use§ 1881a to obtain the necessary approval.

The upshot is that (1) similarity of con-tent, (2) strong motives, (3) prior behavior,and (4) capacity all point to a very stronglikelihood that the Government will inter-cept at least some of the plaintiffs’ commu-nications, including some that the 2008amendment, § 1881a, but not the pre–2008Act, authorizes the Government to inter-cept.

At the same time, nothing suggests thepresence of some special factor here thatmight support a contrary conclusion. TheGovernment does not deny that it has boththe motive and the capacity to listen tocommunications of the kind described byplaintiffs. Nor does it describe any sys-tem for avoiding the interception of anelectronic communication that happens toinclude a party who is an American lawyer,journalist, or human rights worker. Onecan, of course, always imagine some spe-cial circumstance that negates a virtual


likelihood, no matter how strong. But thesame is true about most, if not all, ordi-nary inferences about future events. Per-haps, despite pouring rain, the streets willremain dry (due to the presence of a spe-cial chemical). But ordinarily a party thatseeks to defeat a strong natural inferencemust bear the burden of showing thatsome such special circumstance exists.And no one has suggested any such specialcircumstance here.

Consequently, we need only assume thatthe Government is doing its job (to findout about, and combat, terrorism) in orderto conclude that there is a high probabilitythat the Government will intercept at leastsome electronic communication to which atleast some of the plaintiffs are parties.The majority is wrong when it describesthe harm threatened plaintiffs as ‘‘specula-tive.’’

IV

A

The majority more plausibly says thatthe plaintiffs have failed to show that thethreatened harm is ‘‘certainly impending.’’Ante, at 1147 (internal quotation marksomitted). But, as the majority appears toconcede, see ante, at 1150, and n. 5, cer-tainty is not, and never has been, thetouchstone of standing. The future is in-herently uncertain. Yet federal courts fre-quently entertain actions for injunctionsand for declaratory relief aimed at pre-venting future activities that are reason-ably likely or highly likely, but not abso-lutely certain, to take place. And thatdegree of certainty is all that is needed tosupport standing here.

The Court’s use of the term ‘‘certainlyimpending’’ is not to the contrary. Some-times the Court has used the phrase‘‘certainly impending’’ as if the phrase de-scribed a sufficient, rather than a neces-

sary, condition for jurisdiction. SeePennsylvania v. West Virginia, 262 U.S.553, 593, 43 S.Ct. 658, 67 L.Ed. 1117(1923) (‘‘If the injury is certainly impend-ing that is enough’’). See also Babbitt,442 U.S., at 298, 99 S.Ct. 2301 (same).On other occasions, it has used thephrase as if it concerned when, notwhether, an alleged injury would occur.Thus, in Lujan, 504 U.S., at 564, n. 2,112 S.Ct. 2130, the Court considered athreatened future injury that consisted ofharm that plaintiffs would suffer whenthey ‘‘soon’’ visited a government projectarea that (they claimed) would suffer en-vironmental damage. The Court wrotethat a ‘‘mere profession of an intent,some day, to return’’ to the project areadid not show the harm was ‘‘imminent,’’for ‘‘soon’’ might mean nothing more than‘‘in this lifetime.’’ Id., at 564–565, n. 2,112 S.Ct. 2130 (internal quotation marksomitted). Similarly, in McConnell v. Fed-eral Election Comm’n, 540 U.S. 93, 124S.Ct. 619, 157 L.Ed.2d 491 (2003), theCourt denied standing because the Sena-tor’s future injury (stemming from a cam-paign finance law) would not affect himuntil his reelection. That fact, the Courtsaid, made the injury ‘‘too remote tempo-rally to satisfy Article III standing.’’ Id.,at 225–226, 124 S.Ct. 619.

On still other occasions, recognizing that‘‘ ‘imminence’ is concededly a somewhatelastic concept,’’ Lujan, supra, at 565, n. 2,112 S.Ct. 2130, the Court has referred to,or used (sometimes along with ‘‘certainlyimpending’’) other phrases such as ‘‘rea-sonable probability’’ that suggest less thanabsolute, or literal certainty. See Babbitt,supra, at 298, 99 S.Ct. 2301 (plaintiff ‘‘mustdemonstrate a realistic danger of sustain-ing a direct injury’’ (emphasis added));Friends of the Earth, Inc. v. Laidlaw En-vironmental Services (TOC), Inc., 528 U.S.167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610(2000) (‘‘[I]t is the plaintiff’s burden to


establish standing by demonstrating thatTTT the defendant’s allegedly wrongful be-havior will likely occur or continue’’). Seealso Monsanto Co. v. Geertson SeedFarms, 561 U.S. ––––, ––––, 130 S.Ct.2743, 2754–2755, 177 L.Ed.2d 461 (2010)(‘‘ ‘ ‘‘reasonable probability’’ ’ ’’ and ‘‘sub-stantial risk’’); Davis, 554 U.S., at 734, 128S.Ct. 2759 (‘‘realistic and impending threatof direct injury’’); MedImmune, Inc. v.Genentech, Inc., 549 U.S. 118, 129, 127S.Ct. 764, 166 L.Ed.2d 604 (2007) (‘‘genu-ine threat of enforcement’’); Departmentof Commerce v. United States House ofRepresentatives, 525 U.S. 316, 333, 119S.Ct. 765, 142 L.Ed.2d 797 (1999) (‘‘sub-stantially likely’’ (internal quotation marksomitted)); Clinton v. City of New York,524 U.S. 417, 432, 118 S.Ct. 2091, 141L.Ed.2d 393 (1998) (‘‘sufficient likelihood ofeconomic injury’’); Pennell v. San Jose,485 U.S. 1, 8, 108 S.Ct. 849, 99 L.Ed.2d 1(1988) (‘‘realistic danger’’ (internal quota-tion marks omitted)); Blum v. Yaretsky,457 U.S. 991, 1001, 102 S.Ct. 2777, 73L.Ed.2d 534 (1982) (‘‘quite realistic’’threat); Bryant v. Yellen, 447 U.S. 352,367–368, 100 S.Ct. 2232, 65 L.Ed.2d 184(1980) (‘‘likely’’); Buckley v. Valeo, 424U.S. 1, 74, 96 S.Ct. 612, 46 L.Ed.2d 659(1976) (per curiam ) (‘‘reasonable probabil-ity’’). Taken together the case law usesthe word ‘‘certainly’’ as if it emphasizes,rather than literally defines, the immedi-ately following term ‘‘impending.’’

B

1

More important, the Court’s holdings instanding cases show that standing existshere. The Court has often found standingwhere the occurrence of the relevant inju-ry was far less certain than here. Consid-er a few, fairly typical, cases. ConsiderPennell, supra. A city ordinance forbadelandlords to raise the rent charged to a

tenant by more than 8 percent where do-ing so would work an unreasonably severehardship on that tenant. Id., at 4–5, 108S.Ct. 849. A group of landlords sought ajudgment declaring the ordinance uncon-stitutional. The Court held that, to havestanding, the landlords had to demonstratea ‘‘ ‘realistic danger of sustaining a directinjury as a result of the statute’s opera-tion.’ ’’ Id., at 8, 108 S.Ct. 849 (emphasisadded). It found that the landlords haddone so by showing a likelihood of enforce-ment and a ‘‘probability,’’ ibid., that theordinance would make the landlordscharge lower rents—even though the land-lords had not shown (1) that they intendedto raise the relevant rents to the point ofcausing unreasonably severe hardship; (2)that the tenants would challenge those in-creases; or (3) that the city’s hearing ex-aminers and arbitrators would find againstthe landlords. Here, even more so than inPennell, there is a ‘‘realistic danger ’’ thatthe relevant harm will occur.

Or, consider Blum, supra. A group ofnursing home residents receiving Medicaidbenefits challenged the constitutionality(on procedural grounds) of a regulationthat permitted their nursing home totransfer them to a less desirable home.Id., at 999–1000, 102 S.Ct. 2777. Althougha Medicaid committee had recommendedtransfers, Medicaid-initiated transfer hadbeen enjoined and the nursing home itselfhad not threatened to transfer the plain-tiffs. But the Court found ‘‘standing’’ be-cause ‘‘the threat of transfers’’ was ‘‘not‘imaginary or speculative’ ’’ but ‘‘quite real-istic,’’ hence ‘‘sufficiently substantial.’’ Id.,at 1000–1001, 102 S.Ct. 2777 (quotingYounger v. Harris, 401 U.S. 37, 42, 91S.Ct. 746, 27 L.Ed.2d 669 (1971)). Theplaintiffs’ injury here is not imaginary orspeculative, but ‘‘quite realistic.’’

Or, consider Davis, supra. The plain-tiff, a candidate for the United States


House of Representatives, self-financed hiscampaigns. He challenged the constitu-tionality of an election law that relaxed thelimits on an opponent’s contributions whena self-financed candidate’s spending itselfexceeded certain other limits. His oppo-nent, in fact, had decided not to take ad-vantage of the increased contribution lim-its that the statute would have allowed.Id., at 734, 128 S.Ct. 2759. But the Courtnonetheless found standing because therewas a ‘‘realistic and impending threat,’’ nota certainty, that the candidate’s opponentwould do so at the time the plaintiff filedthe complaint. Id., at 734–735, 128 S.Ct.2759. The threat facing the plaintiffs hereis as ‘‘realistic and impending.’’

Or, consider MedImmune, supra. Theplaintiff, a patent licensee, sought a declar-atory judgment that the patent was inval-id. But, the plaintiff did not face an immi-nent threat of suit because it continuedmaking royalty payments to the patentholder. In explaining why the plaintiffhad standing, we (1) assumed that if theplaintiff stopped making royalty paymentsit would have standing (despite the factthat the patent holder might not bringsuit), (2) rejected the Federal Circuit’s‘‘reasonable apprehension of imminentsuit’’ requirement, and (3) instead suggest-ed that a ‘‘genuine threat of enforcement’’was likely sufficient. Id., at 128, 129, 132,n. 11, 127 S.Ct. 764 (internal quotationmarks omitted). A ‘‘genuine threat’’ ispresent here.

Moreover, courts have often found pro-babilistic injuries sufficient to supportstanding. In Duke Power Co. v. CarolinaEnvironmental Study Group, Inc., 438U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595(1978), for example, the plaintiffs, a groupof individuals living near a proposed nucle-ar powerplant, challenged the constitution-ality of the Price–Anderson Act, a statutethat limited the plant’s liability in the case

of a nuclear accident. The plaintiffs saidthat, without the Act, the defendantswould not build a nuclear plant. And thebuilding of the plant would harm them, inpart, by emitting ‘‘non-natural radiationinto [their] environment.’’ Id., at 74, 98S.Ct. 2620. The Court found standing inpart due to ‘‘our generalized concern aboutexposure to radiation and the apprehen-sion flowing from the uncertainty aboutthe health and genetic consequences ofeven small emissions.’’ Ibid. (emphasisadded). See also Monsanto Co., supra, at––––, 130 S.Ct., at 2754–2755 (‘‘A substan-tial risk of gene flow injures respondentsin several ways’’ (emphasis added)).

See also lower court cases, such asMountain States Legal Foundation v.Glickman, 92 F.3d 1228, 1234–1235(C.A.D.C.1996) (plaintiffs attack Govern-ment decision to limit timber harvesting;standing based upon increased risk ofwildfires); Natural Resources DefenseCouncil v. EPA, 464 F.3d 1, 7 (C.A.D.C.2006) (plaintiffs attack Government deci-sion deregulating methyl bromide; stand-ing based upon increased lifetime risk ofdeveloping skin cancer); Constellation En-ergy Commodities Group, Inc. v. FERC,457 F.3d 14, 20 (C.A.D.C.2006) (standingbased on increased risk of nonrecoveryinherent in the reduction of collateral se-curing a debt of uncertain amount); Sut-ton v. St. Jude Medical S.C., Inc., 419 F.3d568, 570–575 (C.A.6 2005) (standing basedon increased risk of harm caused by im-plantation of defective medical device);Johnson v. Allsteel, Inc., 259 F.3d 885,888–891 (C.A.7 2001) (standing based onincreased risk that Employee RetirementIncome Security Act beneficiary will notbe covered due to increased amount ofdiscretion given to ERISA administrator).

How could the law be otherwise? Sup-pose that a federal court faced a claim byhomeowners that (allegedly) unlawful dam-


building practices created a high risk thattheir homes would be flooded. Would thecourt deny them standing on the groundthat the risk of flood was only 60, ratherthan 90, percent?

Would federal courts deny standing to aplaintiff in a diversity action who claims ananticipatory breach of contract where thefuture breach depends on probabilities?The defendant, say, has threatened to loadwheat onto a ship bound for India despitea promise to send the wheat to the UnitedStates. No one can know for certain thatthis will happen. Perhaps the defendantwill change his mind; perhaps the ship willturn and head for the United States. Yet,despite the uncertainty, the Constitutiondoes not prohibit a federal court fromhearing such a claim. See 23 R. Lord,Williston on Contracts § 63:35 (4th ed.2002) (plaintiff may bring an anticipatorybreach suit even though the defendant’spromise is one to perform in the future, ithas not yet been broken, and defendantmay still retract the repudiation). E.g.,Wisconsin Power & Light Co. v. CenturyIndemnity Co., 130 F.3d 787, 792–793(C.A.7 1997) (plaintiff could sue insurerthat disclaimed liability for all costs thatwould be incurred in the future if environ-mental agencies required cleanup); Combsv. International Ins. Co., 354 F.3d 568,598–601 (C.A.6 2004) (similar).

Would federal courts deny standing to aplaintiff who seeks to enjoin as a nuisancethe building of a nearby pond which, theplaintiff believes, will very likely, but notinevitably, overflow his land? See 42 Am.Jur. 2d Injunctions §§ 2, 5 (2010) (notingthat an injunction is ordinarily preventivein character and restrains actions thathave not yet been taken, but threaten inju-ry). E.g., Central Delta Water Agency v.United States, 306 F.3d 938, 947–950(C.A.9 2002) (standing to seek injunctionwhere method of operating dam was highly

likely to severely hamper plaintiffs’ abilityto grow crops); Consolidated Companies,Inc. v. Union Pacific R. Co., 499 F.3d 382,386 (C.A.5 2007) (standing to seek injunc-tion requiring cleanup of land adjacent toplaintiff’s tract because of threat that con-taminants might migrate to plaintiff’stract).

Neither do ordinary declaratory judg-ment actions always involve the degree ofcertainty upon which the Court insistshere. See, e.g., Maryland Casualty Co. v.Pacific Coal & Oil Co., 312 U.S. 270, 273,61 S.Ct. 510, 85 L.Ed. 826 (1941) (insur-ance company could seek declaration thatit need not pay claim against insured auto-mobile driver who was in an accident eventhough the driver had not yet been foundliable for the accident); Aetna Life Ins.Co. v. Haworth, 300 U.S. 227, 239–244, 57S.Ct. 461, 81 L.Ed. 617 (1937) (insurancecompany could seek declaration that itneed not pay plaintiff for disability al-though plaintiff had not yet sought disabil-ity payments). See also, e.g., AssociatedIndemnity Corp. v. Fairchild Industries,Inc., 961 F.2d 32, 35–36 (C.A.2 1992) (in-sured could seek declaration that insur-ance company must pay liability even be-fore insured found liable).

2

In some standing cases, the Court hasfound that a reasonable probability of fu-ture injury comes accompanied with pres-ent injury that takes the form of reason-able efforts to mitigate the threatenedeffects of the future injury or to preventit from occurring. Thus, in MonsantoCo., 561 U.S., at ––––, 130 S.Ct., at2754–2756 plaintiffs, a group of conven-tional alfalfa growers, challenged anagency decision to deregulate geneticallyengineered alfalfa. They claimed thatderegulation would harm them becausetheir neighbors would plant the genet-ically engineered seed, bees would obtain


pollen from the neighbors’ plants, andthe bees would then (harmfully) contami-nate their own conventional alfalfa withthe genetically modified gene. The lowercourts had found a ‘‘reasonable probabili-ty’’ that this injury would occur. Ibid.(internal quotation marks omitted).

Without expressing views about thatprobability, we found standing because theplaintiffs would suffer present harm bytrying to combat the threat. Ibid. Theplaintiffs, for example, ‘‘would have to con-duct testing to find out whether and towhat extent their crops have been contami-nated.’’ Id., at ––––, 130 S.Ct., at 2755.And they would have to take ‘‘measures tominimize the likelihood of potential con-tamination and to ensure an adequate sup-ply of non-genetically-engineered alfalfa.’’Ibid. We held that these ‘‘harms, which[the plaintiffs] will suffer even if theircrops are not actually infected with’’ thegenetically modified gene, ‘‘are sufficientlyconcrete to satisfy the injury-in-fact prongof the constitutional standing analysis.’’Id., at ––––, 130 S.Ct., at 2755.

Virtually identical circumstances arepresent here. Plaintiff McKay, for exam-ple, points out that, when he communicatesabroad about, or in the interests of, aclient (e.g., a client accused of terrorism),he must ‘‘make an assessment’’ whetherhis ‘‘client’s interests would be compro-mised’’ should the Government ‘‘acquirethe communications.’’ App. to Pet. forCert. 375a. If so, he must either forgo thecommunication or travel abroad. Id., at371a–372a (‘‘I have had to take measuresto protect the confidentiality of informa-tion that I believe is particularly sensitive,’’including ‘‘travel that is both time-consum-ing and expensive’’).

Since travel is expensive, since forgoingcommunication can compromise the client’sinterests, since McKay’s assessment itselftakes time and effort, this case does not

differ significantly from Monsanto. Andthat is so whether we consider the plain-tiffs’ present necessary expenditure oftime and effort as a separate concrete,particularized, imminent harm, or considerit as additional evidence that the futureharm (an interception) is likely to occur.See also Friends of the Earth, Inc., 528U.S., at 183–184, 120 S.Ct. 693 (holdingthat plaintiffs who curtailed their recre-ational activities on a river due to reason-able concerns about the effect of pollutantdischarges into that river had standing);Meese v. Keene, 481 U.S. 465, 475, 107S.Ct. 1862, 95 L.Ed.2d 415 (1987) (statingthat ‘‘the need to take TTT affirmativesteps to avoid the risk of harm TTT consti-tutes a cognizable injury’’).

3

The majority cannot find support incases that use the words ‘‘certainly im-pending’’ to deny standing. While I do notclaim to have read every standing case, Ihave examined quite a few, and not yetfound any such case. The majority refersto Whitmore v. Arkansas, 495 U.S. 149,110 S.Ct. 1717, 109 L.Ed.2d 135 (1990).But in that case the Court denied standingto a prisoner who challenged the validity ofa death sentence given to a different pris-oner who refused to challenge his ownsentence. The plaintiff feared that in theabsence of an appeal, his fellow prisoner’sdeath sentence would be missing from theState’s death penalty database and there-by skew the database against him, makingit less likely his challenges to his owndeath penalty would succeed. The Courtfound no standing. Id., at 161, 110 S.Ct.1717. But the fellow prisoner’s lack ofappeal would have harmed the plaintiffonly if (1) the plaintiff separately obtainedfederal habeas relief and was then recon-victed and resentenced to death, (2) hesought review of his new sentence, and (3)during that review, his death sentence was


affirmed only because it was compared toan artificially skewed database. Id., at156–157, 110 S.Ct. 1717. These eventsseemed not very likely to occur.

In DaimlerChrysler Corp. v. Cuno, 547U.S. 332, 126 S.Ct. 1854, 164 L.Ed.2d 589(2006), taxpayers challenged the constitu-tionality of a tax break offered by stateand local governments to a car manufac-turer. We found no standing. But theplaintiffs would have suffered resulting in-jury only if that the tax break had de-pleted state and local treasuries and thelegislature had responded by raising theirtaxes. Id., at 344, 126 S.Ct. 1854.

In Lujan, the case that may come clos-est to supporting the majority, the Courtalso found no standing. But, as I pointedout, supra, at 1160 – 1161, Lujan is a casewhere the Court considered when, notwhether, the threatened harm would occur.504 U.S., at 564, n. 2, 112 S.Ct. 2130. Therelevant injury there consisted of a visit byenvironmental group’s members to a pro-ject site where they would find (unlawful)environmental depredation. Id., at 564,112 S.Ct. 2130. The Court pointed outthat members had alleged that they wouldvisit the project sites ‘‘soon.’’ But it wrotethat ‘‘soon’’ might refer to almost any timein the future. Ibid., n. 2. By way of con-trast, the ongoing threat of terrorismmeans that here the relevant interceptionswill likely take place imminently, if notnow.

The Court has, of course, denied stand-ing in other cases. But they involve inju-ries less likely, not more likely, to occurthan here. In a recent case, Summers v.Earth Island Institute, 555 U.S. 488, 129S.Ct. 1142, 173 L.Ed.2d 1 (2009), for exam-ple, the plaintiffs challenged a regulationexempting certain timber sales from publiccomment and administrative appeal. Theplaintiffs claimed that the regulations in-jured them by interfering with their esth-

etic enjoyment and recreational use of theforests. The Court found this harm toounlikely to occur to support standing. Id.,at 496, 129 S.Ct. 1142. The Court notedthat one plaintiff had not pointed to aspecific affected forest that he would visit.The Court concluded that ‘‘[t]here may bea chance, but TTT hardly a likelihood,’’that the plaintiff’s ‘‘wanderings will bringhim to a parcel about to be affected by aproject unlawfully subject to the regula-tions.’’ Id., at 495, 129 S.Ct. 1142 (empha-sis added).

4

In sum, as the Court concedes, see ante,at 1150, and n. 5, the word ‘‘certainly’’ inthe phrase ‘‘certainly impending’’ does notrefer to absolute certainty. As our caselaw demonstrates, what the Constitutionrequires is something more akin to ‘‘rea-sonable probability’’ or ‘‘high probability.’’The use of some such standard is all thatis necessary here to ensure the actual con-crete injury that the Constitution de-mands. The considerations set forth inParts II and III, supra, make clear thatthe standard is readily met in this case.

* * *

While I express no view on the merits ofthe plaintiffs’ constitutional claims, I dobelieve that at least some of the plaintiffshave standing to make those claims. Idissent, with respect, from the majority’scontrary conclusion.

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U.S. v. JONES 945 Cite as 132 S.Ct. 945 (2012) · 2019-06-28 · U.S. v. JONES 945 Cite as 132 S.Ct. 945 (2012) lack of preclearance under § 5 of the Vot-ing Rights Act of 1965