Clapper and Data Breach Litigation

by BakerHostetler

In Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), the Supreme Court recently held that individuals claiming injury from the federal government’s right to conduct electronic surveillance under the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1881a, lacked standing to pursue their claims. In reaching its holding, the Court made statements that should prove useful for data breach defendants trying to defeat claims based on a plaintiff’s lack of standing. While Clapper does not necessarily foreshadow the Court’s position on standing in data breach litigation, the decision is useful for defendants in the data breach context.

FISA allows the federal government to acquire information by authorizing the surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States. Surveillance under FISA is subject to judicial authorization, congressional supervision, and compliance with the Fourth Amendment.

The Clapper plaintiffs were U.S. individuals and entities – attorneys, and human rights, labor, legal, and media organizations – who claimed that they engage in sensitive international communications with individuals whom they believe are likely targets of surveillance. They filed suit seeking a declaration that FISA was unconstitutional.

The plaintiffs’ claims were dismissed for lack of standing in the District Court, but the Second Circuit reversed, stating there was an “objectively reasonable likelihood” that the plaintiffs’ communications would be intercepted. The Second Circuit also found that the plaintiffs established “present injuries in fact – economic and professional harms – stemming from a reasonable fear of future harmful government conduct.”

The claims in Clapper rested on two theories, both of which were rejected by the Supreme Court.  First, the plaintiffs claimed injury because of an objectively reasonable likelihood that their communications would be intercepted. The Court dismissed this claimed harm as too highly attenuated. Notably, the Court declared that the Second Circuit’s “objectively reasonable likelihood” standard is inconsistent with the Court’s requirement that threatened injury be certainly impending for injury in fact. For example, plaintiffs had not demonstrated that the Federal Government would: a) target the individuals with whom plaintiffs sought to communicate; b) succeed in intercepting the individuals’ communications; c) intercept such communications under § 1881a (as opposed to surveillance under another statute); and d) intercept communications between the plaintiffs and the targeted individuals.

The plaintiffs’ second theory was that they were injured because the risk of surveillance required them to take costly and burdensome countermeasures to protect the confidentiality of their communications. The Second Circuit had concluded these countermeasures constituted injury in fact, but the Supreme Court disagreed. The Court reasoned that allowing such fears to constitute injury would allow an “enterprising” plaintiff to “manufacture standing. . . based on their fears of hypothetical future harm that is not certainly impending.”

Clapper is helpful for entities defending data breach litigation, particularly in its rejection of the Second Circuit’s “objectively reasonable likelihood” standard as being incompatible with the requirement that injury be “certainly impending.” A data breach plaintiff’s complaints that his or her compromised data causes an increased danger of identity theft runs squarely into the Court’s caveats regarding standing based on an “attenuated chain of possibilities.”

Also important is the Court’s holding that a plaintiff cannot base injury on the present costs of preventing hypothetical harm that is not “certainly impending.” The Court’s reasoning is directly applicable to a data breach plaintiff’s arguments that efforts to mitigate against the possible effects of a data breach (such as the cost and inconvenience of cancelling credit cards, closing checking accounts, obtaining credit reports and purchasing identity and/or credit monitoring) are insufficient to confer standing.

Data beach plaintiffs no doubt will argue that Clapper must be confined to its facts and the FISA context, where national security considerations that are not present in data breach litigation are at issue. But Clapper’s discussion on standing is broad, and plaintiffs likely will have a difficult time cabining its standing holdings. Thus, defendants in data breach actions have a powerful weapon in Clapper, but will still have to battle arguments that would confine Clapper to its context.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.