The U.S. Supreme Court heard arguments last month in Clapper v. Amnesty International, a case that asks the Court to determine whether a group of lawyers, journalists, and human rights workers have standing to challenge the federal government’s international electronic surveillance program under the Foreign Intelligence Surveillance Act.  The plaintiffs alleged Fourth Amendment privacy violations among other things, and injury from the likelihood that the government was recording their conversations with clients and sources overseas.  But the plaintiffs could not say with certainty whether any eavesdropping occurred, giving rise to the standing issue before the Court.

Clapper involves standing in the context of constitutional privacy, but the same general standing requirements apply in consumer privacy actions.  Standing is one of the initial hurdles of any would-be plaintiff, and the first element of standing is injury-in-fact.  In the developing area of consumer privacy litigation, recent cases reflect uncertainty in the federal courts as to what constitutes injury-in-fact sufficient to confer standing.