Security Safeguards

The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for one-year periods. District of Columbia law also requires residents to keep their lawfully owned firearms unloaded and disassembled or bound by a trigger lock or similar device unless they are located in a place of business or are being used for lawful recreational activities. Respondent Dick Heller is a D.C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of functional firearms within the home. The District Court dismissed respondent's complaint. The Court of Appeals for the District of Columbia Circuit reversed, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense. The Court of Appeals directed the District Court to enter summary judgment for respondent. The Supreme Court granted certiorari.

The petitioner was convicted in the District Court for the Southern District of California. He faced an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston in violation of a federal statute. At trial the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone conversations. FBI agents had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. The Court of Appeals affirmed the conviction. It rejected the contention that the recordings had been obtained in violation of the Fourth Amendment because there was no physical entrance into the area occupied by the petitioner. The Supreme Court granted certiorari to consider the constitutional questions thus presented. Based upon previous visual observations of the petitioner, the agents correctly predicted he would use the booth for several minutes at approximately the same time each morning. The petitioner was subjected to electronic surveillance only during this predetermined period. Six recordings, averaging some three minutes each, were obtained and admitted in evidence. They preserved the petitioner's end of conversations concerning placing bets and receiving wagering information. On the single occasion when the statements of another person were inadvertently intercepted, the agents refrained from listening to them. The telephone booth was made partly of glass. The petitioner was as visible after he entered it as he would have been if he had remained outside. The agents confined their surveillance to the brief periods during which he used the booth and took great care to overhear only the petitioner's conversations.

In 1978, Congress enacted the Foreign Intelligence Surveillance Act to authorize and regulate governmental electronic surveillance of communications for foreign intelligence purposes. After the September 11 attacks, President George W. Bush authorized the National Security Agency to conduct warrantless wiretapping of telephone and email communications where one participant was reasonably believed to be a member or agent of al Qaeda or an affiliated terrorist organization. In January 2007, the Foreign Intelligence Surveillance Court issued orders. Those orders authorized the Government to target international communications into or out of the United States where there was probable cause to believe that one participant was a member or agent of al Qaeda or an associated terrorist organization. After a FISC judge narrowed the authorization, the Executive asked Congress to amend FISA. In 2008, Congress enacted the FISA Amendments Act, which added Section 702. That section permits the Attorney General and the Director of National Intelligence to jointly authorize the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information. The authorization lasts for up to one year and requires FISC approval of targeting and minimization procedures. Section 702 does not require a showing of probable cause that the target is a foreign power or agent of a foreign power. It also does not require specification of the particular facilities or places at which surveillance will occur. Respondents are attorneys and human rights, labor, legal, and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with colleagues, clients, sources, and other individuals located abroad. This includes people the Government believes or believed to be associated with terrorist organizations, people located in geographic areas that are a special focus of the Government's counterterrorism or diplomatic efforts, and activists who oppose governments supported by the United States. Respondents allege that some of the individuals with whom they communicate are likely targets of surveillance under Section 702. On the day the FISA Amendments Act was enacted, respondents filed this action in the Southern District of New York. They sought a declaration that Section 702 is unconstitutional on its face and a permanent injunction against its use. Respondents asserted two theories of Article III standing. First, there is an objectively reasonable likelihood their communications will be acquired under Section 702 at some point in the future. Second, the risk of such surveillance has already forced them to take costly and burdensome measures to protect the confidentiality of their international communications. After both sides moved for summary judgment, the district court held that respondents lack standing. The Second Circuit reversed. It concluded that respondents had standing both because of the objectively reasonable likelihood of future interception and because they were already suffering present economic and professional harms stemming from a reasonable fear of future harmful government conduct. The Second Circuit denied rehearing en banc by an equally divided vote. The Supreme Court granted certiorari in 2012 to address the standing issue.