This legal case involves a dispute between the Director of National Intelligence and Amnesty International USA over the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act, which allows surveillance on non-U.S. persons outside of the United States with approval from the Foreign Intelligence Surveillance Court. The respondents argue that they have standing to seek relief against this surveillance, but the Court finds their arguments too speculative and lacking in certainty. The Court holds that the respondents lack Article III standing. Justice Breyer dissented. Another case challenges the constitutionality of § 1881a, which allows surveillance of non-U.S. persons abroad for foreign intelligence information, subject to legal requirements. The Supreme Court found that the argument that there is an objectively reasonable likelihood of injury due to potential interception of communications under § 1881a is highly speculative and does not satisfy the requirement that threatened injury must be certainly impending. Therefore, the respondents fail to establish standing.

The respondents lack standing to challenge the constitutionality of § 1881a of the Foreign Intelligence Surveillance Act because their fear of potential surveillance is speculative and not a concrete injury. The court cannot lower the standard for Article III standing based on a nonparanoid fear or speculative threat. However, Justice Breyer disagrees and argues that the interception of a private conversation is a concrete and particularized injury. The plaintiffs, including lawyers, journalists, and human rights researchers, communicate electronically with foreigners abroad and exchange foreign intelligence information related to international terrorism and national defense or security. The government has a history of seeking information through electronic surveillance, and the 2008 amendment simplifies and expedites the approval process, making it more likely that the government will intercept communications. The level of certainty is sufficient to support standing in this case.

The level of certainty required for standing varies and can include phrases like "certainly impending," "reasonable probability," and "substantial risk." Standing can be granted based on a realistic and impending threat of harm or a genuine threat of enforcement. In some cases, standing has been granted based on an increased risk of harm, even if the percentage of risk is low. Anticipatory breach of contract and injunction as a nuisance can also grant standing. Declaratory judgment actions do not always require the same degree of certainty, and reasonable efforts to mitigate or prevent future injury can accompany present injury. Plaintiff McKay has standing to sue because he would suffer present harm by having to take measures to protect his client's information if the government were to acquire his communications. The ongoing threat of terrorism makes the harm of interceptions likely to occur imminently, meeting the standard of a "reasonable probability" or "high probability" of actual concrete injury required by the Constitution.