On February 26, 2013, the Supreme Court decided Clapper v. Amnesty International USA, which clarified the standard to establish Article III standing for claims based on impending or future harm. The Supreme Court, in a 5-4 decision by Justice Samuel A. Alito, Jr., held that plaintiffs must demonstrate harm that is “certainly impending,” not speculative, to satisfy the injury-in-fact requirement of standing. The Court also held that plaintiffs may not “manufacture” standing “by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.”
The decision has important implications for suits in federal court relating to Internet privacy and data security. Plaintiffs in such cases often rely on fear of future harm—that the defendant’s conduct has left them susceptible to identity theft or future privacy breaches, for example—or that they have incurred costs in order to avoid future harm. Federal courts will lack jurisdiction over such claims unless plaintiffs can show that the harm or injury that they allege is certainly impending, rather than merely possible.
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