Full opinion text
ORDER Following disposition of this appeal on March 21, 2011, Defendants-Appellees James R. Clapper, Jr. et al. filed a petition for rehearing in banc. A poll of the active members of the Court having been conducted, and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.
GERARD E. LYNCH, Circuit Judge, concurring in the denial of rehearing en banc: While I usually consider opinions concurring in a denial of en banc review unnecessary, I write briefly in response to my colleagues’ dissents from denial of rehearing en banc because, in the absence of any panel dissent, some of their criticisms have not previously been aired. For the most part, the panel opinion speaks for itself; answers to nearly all of the dissents’ points can be found there. See Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir.2011). Nevertheless, I take this opportunity to respond directly to a few points. As an initial matter, I agree with the dissenters that this case clearly satisfies Federal Rule of Appellate Procedure 35(a)(2)’s exceptional-importance requirement. And I acknowledge that it may be in some tension with opinions from other circuits (although, as discussed below, those cases are largely distinguishable from this one). But I dispute the dissenters’ assertions that Amnesty somehow distorts the law of standing or, in Judge Livingston’s words, “threatens a sub silentio transformation of this Circuit’s case law.” Livingston, J., Op. Dissenting from Denial of Reh’g En Banc (“Livingston, J., Op.”), post at [193-94]; see also Raggi, J., Op. Dissenting from Denial of Reh’g En Banc (“Raggi, J., Op.”), post at [173-74]. Standing cases are inherently fact specific, and the panel opinion takes pains to make clear that our conclusions regarding standing were limited to this statute, these plaintiffs, and the facts of this case. Furthermore, for the reasons articulated in the panel opinion and below, Amnesty fully coheres with established standing doctrine and does not represent a departure from our controlling precedents. I. Summary Judgment Standard A theme that runs through all of the dissents is that the panel should have treated the plaintiffs’ averments more skeptically. One dissent, for example, criticizes us for our overly “credulous[ ]” and insufficiently skeptical reading of the record. See Jacobs, C.J., Op. Dissenting from Denial of Reh’g En Banc (“Jacobs, C.J., Op.”), post at [201]; see also Raggi, J. , Op., post at [183-86]. But any “credulity]” displayed by the opinion reflects not any naiveté on the part of the panel, but the requirements of the procedural posture of the case. The case came to us on summary judgment, and the government expressly chose to accept the plaintiffs’ allegations as true for purposes of the standing motion. Thus, the panel opinion reviews the record as we are required to review it: accepting the plaintiffs’ allegations as true, drawing all reasonable factual inferences in their favor, and viewing their factual assertions in the light most favorable to them. As this Court has long held, even if evidence “greatly taxes the credulity of the judge,” that alone does not justify a grant of summary judgment. See Amstein v. Porter, 154 F.2d 464, 469 (2d Cir.1946) (citation omitted). Judge Raggi points out, correctly, that where the court’s subject matter jurisdiction is at issue, as in the case of constitutional standing, courts have an “ ‘independent obligation’ ” to question even undisputed facts, necessary to the court’s jurisdiction, that are asserted by parties. Post at [186] (quoting Ariz. Christian Sch. Tuition Org., v. Winn, — U.S. -, -, 131 S.Ct. 1436, 1454, 179 L.Ed.2d 523 (2011)). Certainly, parties cannot confer jurisdiction on the court by stipulating to facts that are false. But this is hardly an example of collusive stipulation to facts that, as Chief Judge Jacobs would have it, are fanciful. See post at [200-01, 201-02, 202-03]. As the panel opinion carefully notes, the plaintiffs’ sworn testimony about their activities, and about their reasons for believing that their communications are likely to be intercepted if the government uses the authority provided by the FAA, are anything but implausible. There is no reason to believe that the government, which vigorously contests standing, is collusively declining to challenge the plaintiffs’ factual presentation in order to obtain a decision on the merits by creating an illusion of jurisdiction on the part of the court. The court’s obligation to question assertions of fact does not extend permission for judges to substitute their own beliefs — derived from their own notions about what is and is not likely to be true — about the truth of the sort of ordinary factual matters that are eminently determinable by the usual factfinding processes of the court, but that the moving party (and especially the government, which has ample resources to litigate those matters) declines to challenge. Because the plaintiffs’ facts were uncontroverted, they necessarily constituted the main basis on which the panel could assess standing. There is precedent for declining to rule on standing and remanding the issue to the district court. See, e.g., Fund for Animals v. Babbitt, 89 F.3d 128, 134 (2d Cir.1996). But in that case, the issue of standing “was neither ruled on by the district court nor fully briefed by the parties.” Id. In Amnesty, by contrast, the standing issue was ruled on by the district court and fully briefed by both sides. The panel fully satisfied its “independent obligation” to assess the plaintiffs’ standing. II. The Statute The dissenters go to great lengths to downplay the significance of the changes contained in the FISA Amendments Act (“FAA”), and to suggest that the panel somehow misinterpreted the statute’s scope or operation. See, e.g., Raggi, J., Op., post at [188-89]. As the panel opinion explains, the FAA indisputably and significantly broadens the risk of interception, lowers the government’s probable-cause burden, and decreases the oversight role of the Foreign Intelligence Surveillance Court (“FISC”). Prior to the FAA, the government was required to identify its specific surveillance targets to the FISC. The FISC would issue a warrant only if it found there was probable cause that the target was a foreign power or an agent of a foreign power, and that the target was using or about to use the facility to be monitored. In other words, the FISC had to find probable cause for each specific search, and maintained a continuing oversight role after each probable-cause determination. See Amnesty, 638 F.3d at 122-24. The FAA significantly alters these procedures. Under Section 702 of the FAA, the FISC need only find that the government’s general procedures comply with the statute’s subsections and with the Fourth Amendment; the probable-cause determinations are no longer particularized. The Attorney General no longer needs to identify specific surveillance targets to the FISC. See 50 U.S.C. § 1881a(g)(4). The FAA requires him (and the Director of National Intelligence) only to provide “written certification” that targets are outside the United States. Id. § 1881a(g)(l)(A). The FISC, in order to issue a warrant, must find only that the executive’s targeting procedures are “reasonably designed to” (i) ensure that any acquisition conducted under the authorization “is limited to targeting persons reasonably believed to be located outside the United States,” and (ii) “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” Id. § 1881a(i)(2)(B). The FISC no longer considers individual surveillance applications, but rather is charged only with overseeing whether the agency has complied with FISA’s general procedural requirements. Id. § 1881a(i)(2), (3)(A). The dissents make much of the FAA’s requirement that the FISC determine whether the government’s procedures comply with the Fourth Amendment, but, again, under the FAA that analysis is limited to the government’s general procedures. Unlike the prior FISA regime, the FISC plays no role in reviewing the basis for any particular surveillance undertaken by the government. Additionally, as the opinion explains, “[u]nder the FAA, in contrast to the preexisting FISA scheme, the FISC may not monitor compliance with the targeting and minimization procedures on an ongoing basis. Instead, that duty falls to the AG and [Director of National Intelligence], who must submit their assessments to the FISC, as well as the congressional intelligence committees and the Senate and House Judiciary Committees.” Amnesty, 638 F.3d at 125 (citing 50 U.S.C. § 1881a(i)(l)). The government itself admits that the FAA differs significantly from the previous version of FISA. In its petition for rehearing en banc, the government notes, for example, that “[u]nlike traditional FISA surveillance, Section 702 does not require the Government to establish individualized probable cause or to identify the specific facilities at which the acquisition will take place.” Pet. for Reh’g 4. Indeed, Congress presumably would not have bothered to amend FISA if the new version of the statute were not appreciably different from the old. And as the opinion makes clear, proponents of the statute argued that it was necessary precisely because it made possible expanded surveillance that would not have been permitted under prior law. See Amnesty, 638 F.3d at 122; see also 154 Cong. Rec. H5756 (daily ed. June 20, 2008) (statement of Rep. Smith); 154 Cong. Rec. S6178-79 (daily ed. June 26, 2008) (statement of Sen. Graham). Nor did the government ever “identify what is ■wrong with the plaintiffs’ interpretation [of the FAA], or what a more appropriate interpretation would be. At oral argument, we asked the government to clarify what it found inaccurate in the plaintiffs’ characterization, and again it failed to do so.” Amnesty, 638 F.3d at 128 n. 8. At no point has the government explained why the plaintiffs’ or the panel’s characterization of the FAA is inaccurate. III. Standing Turning to the standing analysis, it is common ground that standing requires injury in fact, causation, and redressability. The dissents seem to suggest that the opinion somehow muddles these well-established requirements, see, e.g., Livingston, J., Op., post at [195-99], when in fact the opinion analyzes each element separately and in detail, see Amnesty, 638 F.3d at 131-45. The plaintiffs demonstrated present injuries in fact by “alleging] ... the expenditure of funds.” Id. at 133. Their declarations — which, as discussed previously, we are bound to accept as true and which the government accepted for purposes of summary judgment — “established] that they have already incurred professional and economic costs to avoid interception.” Id. The plaintiffs satisfied the causation requirement because “the professional and economic harms [they] suffered ... were fairly traceable to the FAA.” Id. at 134. And they demonstrated redressability because the discrete injury of which they complained — the increased likelihood of interception specifically caused by the FAA — would be relieved by a decision in their favor. See id. at 140 n. 24. The dissents also seem to misunderstand our injury analysis. The opinion addresses two different theories of injury: present injury and future injury. As to present injuries, the opinion explains that the plaintiffs’ undisputed (for purposes of this motion) economic and professional harms are an injury in fact, and the same analysis that supports the conclusion that the plaintiffs’ present-injury theory satisfies the causation prong further supports the conclusion that the plaintiffs’ future-injury theory properly satisfies the injury-in-fact prong. See id. at 133-40. Furthermore, it is emphatically not the case that, as one dissent contends, “[t]he panel opinion bases its finding of injury and causation entirely on the ethical duties of lawyers and the affidavits of the lawyer plaintiffs.” Jacobs, C.J., Op., post at 201]. The opinion makes abundantly clear that the panel’s analysis is not focused exclusively on lawyers. The plaintiffs’ evidence of sensitive communications affected by the statute, cited in detail in the opinion, concerned journalists as well as lawyers, and referred to numerous categories of conversations of a sort not limited to attorneys. Indeed, the panel concluded that a lawyer’s ethical duties and a journalist’s prudent exercise of her role brought us to the same conclusion — that is, all of the plaintiffs reasonably incurred professional and economic costs in order to protect clients or sources. Next, one of the dissents submits that “any burden imposed on plaintiffs by the risk of [FAA-authorized] surveillance arose under the pre-FAA regime as well.” Jacobs, C.J., Op. 202. But for the reasons already discussed, and as explained in detail in the opinion, the FAA significantly broadens the risk of interception beyond that which existed under the previous version of FISA. Furthermore, as explained in the panel opinion, because the government “accepted the factual submissions of the plaintiffs as true for purposes of [the summary judgment] motions,” we “must accept the plaintiffs’ evidence as undisputed explanations of how the FAA has affected them.” Amnesty, 638 F.3d at 129. The dissents further contend that the plaintiffs lack standing because their asserted injuries are not redressable. See Jacobs, C.J., Op., post at [202-03]; Raggi, J., Op., post at [189-93]. But the plaintiffs’ uncontroverted testimony indicated that their contacts believed they were more likely to be monitored under the FAA than under the previous version of FISA. In their Local Rule 56.1 Statement — which, I repeat at risk of redundancy, the government declined to dispute— the plaintiffs said that “the threat of surveillance under the new law has a much greater impact on their work than previous U.S. government surveillance.” Amnesty, 638 F.3d at 129 n. 13 (internal quotation marks and alterations omitted). Thus, we concluded that the plaintiffs had “established that the relief they seek would redress their asserted injuries in fact, because their injuries stem from their reasonable fear of being monitored by FAA-authorized government surveillance, and if a court grants their requested relief — an injunction prohibiting the government from conducting surveillance under the FAA — the feared surveillance would no longer be permitted and therefore would, presumably, no longer be carried out.” Id. at 140 n. 24. In addition, contrary to the dissents’ contentions, see, e.g., Jacobs, C.J., Op., post at [202-03], to establish redressability the plaintiffs need not show that a judgment in their favor would prevent all possible interception, or that they would not suffer injuries under the pre-FAA version of FISA. “[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” Larson v. Valente, 456 U.S. 228, 244 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). Where a challenged action increases an already extant risk of harm to a plaintiff, the elimination of that action would redress the harm it causes — even if it does not eliminate the preexisting risk. Massachusetts v. EPA, 549 U.S. 497, 525-26, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). The dissents also make much of the timing of the plaintiffs’ challenge, pointing out that the plaintiffs filed their suit on the same day that the FAA. was passed. This fact is not unusual in the context of a facial challenge, and in any event has no bearing on whether the plaintiffs could have suffered actual injury as a result of the government’s use of its authority under Section 702. Indeed, there would seem to be no difference between the “reasonable likelihood” that the plaintiffs will be surveilled under the FAA on day one of the FAA’s effect and the likelihood that they will be surveilled on any other day in the future. Finally, the dissents repeatedly characterize as “speculative” the plaintiffs’ assertion that their overseas contacts are likely to be government targets under the FAA. This characterization is hard to take seriously. As the opinion explains, the plaintiffs’ overseas contacts include, for example, alleged A1 Qaeda members (and Guantanamo detainees) Khalid Sheik Mohammed and Mohammedou Ould Salahi, as well as those men’s families. See Amnesty, 638 F.3d at 127 n. 11. Furthermore, as discussed above, the government accepted the plaintiffs’ factual submissions as true for summary judgment purposes, and never submitted evidence of its own. The plaintiffs reasonably asserted that their contacts were “likely targets of FAA surveillance,” and the government never “disputed that assertion.” Id. at 139. The plaintiffs here, in short, have incurred present, concrete costs, because their fear of being subjected to surveillance is reasonable. IV. Circuit Split Judge Raggi contends that the panel opinion creates a circuit split concerning the standards for “evaluating standing to challenge foreign intelligence surveillance programs.” Raggi, J., Op., post at [174]; see also id. at [186-88]. While I concede that Amnesty is in some tension with United Presbyterian Church v. Reagan, 738 F.2d 1375 (D.C.Cir.1984), and ACLU v. NSA 493 F.3d 644 (6th Cir.2007) — the two principal cases with which the dissenters argue that Amnesty creates a circuit conflict — Amnesty is nevertheless distinguishable in several ways from those cases. I will describe a few points of distinction here; the panel opinion itself provides a fuller discussion. See Amnesty, 638 F.3d at 148-49. United Presbyterian Church concerned a “generalized challenge” to “the constitutionality of the entire national intelligence-gathering system,” 738 F.2d at 1381 (internal quotation marks omitted), whereas the present case involves a specific challenge to a specific statute. Furthermore, the D.C. Circuit found that the plaintiffs’ injuries were not concrete, but amounted to little more than a subjective “chilling effect.” Id. at 1378-80. In the present case, by contrast, the plaintiffs have attested that they suffered concrete harms— including the expenditure of funds — and the government has not offered contrary evidence. ACLU v. NSA is similarly distinguishable, as it involved a challenge not to specific legislation, but rather to the National Security Agency’s warrantless wiretap program, which targeted individuals the government believed to be associated with A1 Qaeda. 493 F.3d at 648. In the present case, by contrast, the plaintiffs challenge a statute that, they argue, “permits dragnet surveillance — including surveillance directed at entire geographic areas.” Appellants’ Br. 48. They contend that under such a “dragnet,” their communications “are far more likely to be acquired ... than under a program of individualized surveillance that focuses solely on the communications of terrorism suspects,” and that dragnet surveillance poses “far graver” consequences to them than the warrantless wiretapping posed to the plaintiffs in ACLU v. NSA. Id. Additionally, in that case, the government argued that it would not be able to address the question of standing without disclosing state secrets. ACLU v. NSA 493 F.3d at 650. As the Amnesty plaintiffs correctly point out, in the present case “the government has not invoked the state secrets privilege and has not controverted plaintiffs’ assertion that their communications are likely to be acquired under the statute.” Appellants’ Br. 49. The dissents also insist that the panel opinion defies Supreme Court and Second Circuit precedents. See, e.g., Raggi, J., Op., post at [173] (the panel opinion is “wholly at odds with Supreme Court precedent”); Livingston, J., Op., post at [194] (“in frank disregard of clear Supreme Court authority”). The panel opinion articulates its reasoning in great detail and explains why our holding comports with relevant Supreme Court and Second Circuit precedent. See Amnesty, 638 F.3d at 131-49. I will therefore let those portions of the opinion speak for themselves. * * * The critical inquiry for standing is whether the plaintiffs are simply citizens with an abstract claim that some action was unlawful, or whether they, in some particular respect not shared by every person who dislikes the action, are injured by that action. Here, the plaintiffs have shown that the very existence of an expanded authority for the government to monitor electronic communications with foreigners leads them reasonably to fear that their communications will be intercepted, and that this fear inhibits their lawful activities and requires them to take costly actions to avoid such interception. The government, despite every opportunity to contest the plaintiffs’ factual claims, chose to accept them as true. Nor does the government dispute that the new authority provided by the FAA expands the government’s authority to wiretap and reduces judicial supervision of such surveillance. The suggestion that the government is not certain to use that authority — which was sought and provided by Congress on the ground that it was necessary to protect the national security — is fanciful. And in any event the harm claimed by the plaintiffs is not simply that their communications may be intercepted, but that the very existence of the authority to intercept them itself causes the harm of which they complain.. The plaintiffs therefore are not just people who don’t like the law; they are people who reasonably contend that the law imposes a burden on them. It is important to remember what is at stake here. The government contends, with great facial plausibility, that the law is fully consistent with the Fourth Amendment’s prohibition of unreasonable searches and seizures, because the paramount necessity of protecting the nation’s security against very real and dangerous external threats requires the limited additional burden on a discrete category of international communications imposed by the statute. The plaintiffs face a difficult road in persuading a court that this is not so. There are strong arguments against the plaintiffs’ position on the merits, and they will be strongly made by the government as this case goes forward. In the absence of any representations by the government that addressing these questions would disclose state secrets, ef. ACLU v. NSA, 493 F.3d at 650, those arguments should be presented, and presented forcefully, to the courts. But those who would close the courthouse door to the plaintiffs do not rely on those arguments. Instead, they seek to avoid having to make them. To reject the plaintiffs’ arguments not because they lack merit, but because we refuse to hear them, runs a much graver risk than whatever invasion of plaintiffs’ privacy might be occasioned by the surveillance authorized by the challenged statute. The Constitution sets limits on the powers even of Congress. It is the glory of our system that even our elected leaders must defend the legality of their conduct when challenged. Short-circuiting that process risks not only that we will be governed by unconstitutional laws, but also that legitimate exercises of the lawmaking power will exist under a cloud, undispelled by the light of objective reasoning. REENA RAGGI, Circuit Judge, with whom Chief Judge JACOBS, Judge CABRANES, Judge WESLEY, and Judge LIVINGSTON join, dissenting from the denial of rehearing en banc: A panel of this court recognizes plaintiffs’ standing to mount a facial Fourth Amendment challenge to an act of Congress that authorizes foreign intelligence surveillance subject to statutory conditions, court order, congressional supervision and compliance with the Fourth Amendment. The panel reaches this conclusion even though plaintiffs cannot be targeted for surveillance under that statute, cannot demonstrate actual or imminent interception of any of their communications, and may in fact never experience such interception. The panel concludes that plaintiffs’ professed fear of interception under the statute is sufficient to support standing because the fear is not “irrational,” and plaintiffs incurred costs to conduct conversations in person rather than risk interception. A rule that allows a plaintiff to establish standing simply by incurring costs in response to a not-irrational fear of challenged conduct is unprecedented. On that theory, every mobster’s girlfriend who pays for a cab to meet with him in person rather than converse by telephone would be acting on a not-irrational fear of Title III interception and, therefore, have standing to challenge that statute. In fact, Supreme Court precedent provides otherwise, holding that a subjective fear of challenged government conduct is insufficient to support standing, and that forbearance action can do so only when a plaintiff would otherwise certainly be subject to the challenged conduct. The panel’s reduced standing standard is so at odds with this precedent as to compel rejection en banc. Because this court, by an equally divided vote, declines to convene for that purpose, I respectfully dissent. 1. Background In 2008, Congress amended the Foreign Intelligence Surveillance Act of 1978 (“FISA”) by adding § 702, which authorizes foreign intelligence surveillance of non-United States persons located outside this country consistent with the Fourth Amendment and pursuant to court order and congressional oversight. See FISA Amendments Act of 2008 (“FAA”), Pub.L. No. 110-261, § 101(a)(2), 122 Stat. 2436 (codified at 50 U.S.C. § 1881a). Plaintiffs are United States persons who (1) cannot, as a matter of law, be targeted for FAA surveillance; (2) offer no evidence that their communications ever have been intercepted pursuant to the FAA; and (3) may in fact never be so intercepted. Nevertheless, they assert standing to challenge the law’s facial constitutionality and to seek to enjoin all FAA surveillance based on their professed fear of coincidental interception in the course of their work-related communications with foreign contacts who might be FAA targets. On cross-motions for summary judgment, the district court carefully reviewed Supreme Court precedent and concluded that plaintiffs lacked standing because their subjective fear of interception was too speculative to demonstrate the requisite actual or imminent injury. See Amnesty Int’l USA v. McConnell, 646 F.Supp.2d 633 (S.D.N.Y.2009). A panel of this court reversed, concluding that plaintiffs established standing because they sustained actual injury by incurring costs to meet with foreign contacts rather than risk interception of their electronic communications. See Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir.2011). The panel ruled that plaintiffs who incur costs to avoid feared government action have standing to challenge that action as long as their fears are not “fanciful,” “irrational,” or “clearly unreasonable.” Id. at 133, 135. The panel concluded that plaintiffs satisfied this standard because their fears of interception “are based on a reasonable interpretation of the challenged statute and a realistic understanding of the world.” Id. at 139. This analysis pronounces a novel, relaxed standing standard wholly at odds with Supreme Court precedent. Further, the adoption of such a standard creates a split between this court and our sister circuits in evaluating standing to challenge foreign intelligence surveillance programs. See Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1205 (9th Cir.2007); ACLU v. NSA, 493 F.3d 644, 656 (6th Cir.2007); United Presbyterian Church v. Reagan, 738 F.2d 1375, 1380 (D.C.Cir.1984) (Scalia, J.). No member of the court here disputes the “exceptional importance” of these concerns. Fed. R.App. P. 35(a)(2). Meanwhile, a significant number views the panel decision as fundamentally flawed for reasons discussed in detail in this opinion. Nevertheless, with little more than a token response from the author of the panel opinion, the court refuses to rehear the case en banc. I respectfully dissent from that decision. 2. The Nature of Plaintiffs’ Claim Warrants Particular Attention in Assessing Standing The panel’s novel conclusion — that self-incurred costs can establish standing whenever occasioned by a not-irrational fear of being affected by challenged government conduct — would warrant en banc review in any case. This, however, is hardly “any case.” Three features merit mention before discussing the panel’s general failure to follow Supreme Court standing precedent. First, plaintiffs sue to strike down an act of Congress. That circumstance, by itself, demands an “especially rigorous” standing inquiry. Raines v. Byrd, 521 U.S. 811, 819-20, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). The rigorous inquiry requirement derives from the Constitution’s separation of powers and serves to maintain the proper balance between the least and most democratic branches of the federal government. See Arizona Christian Sch. Tuition Org. v. Winn, — U.S. -, 131 S.Ct. 1436, 1441-42, 179 L.Ed.2d 523 (2011) (observing that “[f]or the federal courts to decide questions of law arising outside of cases and controversies would be inimical to the Constitution’s democratic character”); Valley Forge Christian Coll. v. Americans United For Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (recognizing that federal courts do not wield an “unconditioned authority to determine the constitutionality of legislative or executive acts”); see also Livingston, J., Op. Dissenting from Denial of Reh’g En Banc (“Livingston, J., Op.”), post at [199— 200]. Thus, while a court should not hesitate to recognize standing to challenge federal law where rigorous inquiry demonstrates it exists, a court cannot excuse a party from that rigorous inquiry simply by proclaiming it “the glory of our system that even our elected leaders must defend the legality of their conduct when challenged.” Lynch, J., Op. Concurring in Denial of Reh’g En Banc (“Lynch, J., Op.”), ante at [172]. Second, plaintiffs cannot themselves be targets of the statute they seek to invalidate. That fact requires them to make a “much more” convincing showing of standing than would be demanded of a target. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (stating that it is ordinarily “substantially more difficult” to establish standing to challenge government action that targets someone else (internal quotation marks omitted)). The requirement is based on a prudential concern with ensuring that a party who wishes to use the courts rather than the public square to attack legislation asserts his own concrete claim of injury rather than those of third parties. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). This prudential rule “frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.” United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). This last point assumes greater significance in light of a third feature of the case: the nature and source of the personal right asserted by plaintiffs are unclear. “Although standing in no way depends on the merits of the plaintiffs contention that particular conduct is illegal, it often turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U.S. at 500, 95 S.Ct. 2197 (internal citation omitted). In short, to determine whether a party satisfies the injury prong of standing, a court must understand what “legally protected interest” has been invaded. Lujan v. Defenders of Wildlife, 504 U.S. at 560,112 S.Ct. 2130. The question requires particular attention when, as here, Fourth Amendment rights are asserted. See generally Rakas v. Illinois, 439 U.S. 128, 138-41, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (recognizing that identification of standing and substantive Fourth Amendment rights are “intertwined”). Plaintiffs submit that the FAA is unconstitutional on its face for authorizing surveillance that violates the Fourth Amendment. The claim is curious because, on its face, the FAA makes plain that any surveillance under that statute must be conducted consistent with the Fourth Amendment. This is reflected in no less than three provisions: (1) § 1881a(b)(5), which mandates that FAA surveillance “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States”; (2) § 1881a(g)(2)(A)(iv), which requires the executive to certify to the Foreign Intelligence Surveillance Court (“FISA court”) that the procedures and guidelines it has adopted to satisfy FAA targeting and minimization requirements “are consistent with the requirements of the fourth amendment to the Constitution of the United States”; and (3) § 1881a(i)(3)(A), which conditions the requisite court order on a judicial finding that the executive’s targeting and minimization procedures “are consistent ... with the fourth amendment to the Constitution of the United States.” See 154 Cong. Rec. S6388 (daily ed. July 8, 2008) (statement of Sen. Bond, then-Vice Chairman, S. Select Comm, on Intelligence) (describing Fourth Amendment compliance as “overarching mandate” of FAA). In the absence of any evidence of actual surveillance practices under the FAA, a court cannot assume that the executive and the judiciary will flout these statutory requirements or misconstrue Fourth Amendment protections. Indeed, the presumption is to the contrary. See United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”); see also Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 618, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (Kennedy, J., concurring) (“Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.”). Thus, how can these plaintiffs claim — in a lawsuit filed the very day the FAA became law — that a statute to which they are not even subject, on its face, puts them at risk of any Fourth Amendment injury? See Lujan v. Defenders of Wildlife, 504 U.S. at 569 n. 4, 112 5. Ct. 2130 (requiring standing to be determined “on the facts as they existed when the complaint [was] filed” (internal quotation marks and emphasis omitted)). In the context of such a curious claim, the concerns raised by the panel’s decision to lower plaintiffs’ constitutional standing burden are heightened by those “prudential principles” whereby the judiciary seeks (1) “to avoid deciding questions of broad social import where no individual rights would be vindicated” and (2) “to limit access to the federal courts to those litigants best suited to assert a particular claim.” Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); see Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. 2197 (discussing how prudential concerns supplement constitutional elements of standing). What individual Fourth Amendment right do plaintiffs seek to vindicate by this facial challenge? The question admits no easy answer. Plaintiffs assert that the FAA “authorizes defendants to acquire the constitutionally protected communications of U.S. citizens and residents” — presumably themselves — without requiring identification of “the people to be surveilled” and the facilities to be monitored in “individualized warrants based on criminal or foreign intelligence probable cause.” Compl. ¶ 104. But as United States persons, plaintiffs cannot be “the people to be surveilled” under the FAA; if intercepted at all, it could only be as coincidental communicants of FAA targets. Coincidental interceptees, however, cannot claim a personal Fourth Amendment right to be identified or to have probable cause established as to themselves as a precondition to reasonable surveillance. Cf. United States v. Figueroa, 757 F.2d 466, 472 (2d Cir.1985) (holding that Title III “order which does not specify every person whose conversations may be intercepted does not per se amount to a ‘virtual general warrant’ in violation of the fourth amendment”) (quoting United States v. Kahn, 415 U.S. 143, 154, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974)); United States v. Tortorello, 480 F.2d 764, 775 (2d Cir.1973) (rejecting argument that government must establish probable cause as to all interceptees: “If probable cause has been shown as to one such participant, the statements of the other participants may be intercepted if pertinent to the investigation.”). Alternatively, plaintiffs might be understood to challenge the FAA for failing to require individualized warrants, particularity, or probable cause with respect to foreign targets. But a non-target’s personal right to challenge the lawfulness of surveillance of a third party usually arises only upon the non-target’s actual interception in the course of such surveillance, which plaintiffs do not allege here. See generally United States v. Fury, 554 F.2d 522, 526 (2d Cir.1977). In any event, because FAA targets must be non-United States persons outside this country, they lack the very Fourth Amendment rights with respect to foreign intelligence surveillance that plaintiffs claim on their behalf. See United States v. Verdugo-Urquidez, 494 U.S. 259, 274,110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (holding that foreign persons outside the United States cannot claim Fourth Amendment protections); accord In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157, 168-69 (2d Cir. 2008). This gives rise to a question that plaintiffs do not address and for which no answer can be found either in the panel opinion or Judge Lynch’s concurrence: Under what, if any, circumstances can a coincidental interceptee claim a personal Fourth Amendment right to challenge foreign intelligence surveillance that is lawful as to its target? In other contexts in which warrantless interceptions are lawful as to one party, coincidental interceptees have not been found to have a distinct Fourth Amendment right. See generally United States v. White, 401 U.S. 745, 751-53, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (holding that conversation recorded on consent of one participant did not violate other participant’s Fourth Amendment rights). If, like the district court, the panel had concluded that plaintiffs lacked standing regardless of the nature of their claims because they failed to show actual or imminent injury from FAA interception, there would, of course, have been no need to pursue this matter. But I question how, consistent with “the province of the court ... to decide on the rights of individuals,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803), the panel could recognize plaintiffs’ standing without a clearer comprehension of the personal Fourth Amendment right at stake, see Warth v. Seldin, 422 U.S. at 500, 95 S.Ct. 2197. Further, without such an understanding, it is impossible to conclude that these plaintiffs are the persons “best suited” to challenge the constitutionality of a statute that cannot target them. Gladstone Realtors v. Vill. of Bellwood, 441 U.S. at 100, 99 S.Ct. 1601. Indeed, a contrary inference might be drawn from the fact that, in the FAA, Congress expressly conferred standing on electronic communication service providers to challenge directives requiring them to provide technical assistance to effect authorized surveillance. See 50 U.S.C. § 1881a(h)(4). Service providers’ willingness to avail themselves of such standing is evidenced by the Fourth Amendment challenge one such provider filed to surveillance under the FAA’s predecessor statute, the Protect America Act of 2007 (“PAA”), Pub.L. No. 110-55, 121 Stat. 552. See In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act (In re FISA Section 105B Directives), 551 F.3d 1004 (FISA Ct.Rev.2008) (discussed further infra at [186-87]). In addition, the law recognizes any person’s standing to challenge the legality of FISA-acquired evidence that is offered against him in a criminal prosecution. See, e.g., United States v. Abu-Jihaad, 630 F.3d 102, 107-31 (2d Cir.2010), cert, denied, — U.S. -, 131 S.Ct. 3062, 180 L.Ed.2d 892 (2011); see also 50 U.S.C. § 1806(c) (requiring government to notify interceptee of intent to disclose or use information derived from electronic surveillance); id. § 1806(e) (permitting interceptee to move to suppress information derived from electronic surveillance as unlawfully acquired); id. § 1881e(a) (subjecting information derived from FAA surveillance to provisions of § 1806). Thus, a relaxed inquiry into plaintiffs’ standing cannot be justified on the ground that no one else will be able to challenge FAA surveillance. In any event, the Supreme Court has expressly rejected such an argument as a ground for recognizing standing. See Schlesinger v. Reservists Comm, to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974) (citing United States v. Richardson, 418 U.S. 166, 179, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974)); accord ACLU v. NSA, 493 F.3d at 675-76 (Batchelder, J.). Mindful of the heightened scrutiny and prudential concerns triggered by these particular aspects of plaintiffs’ claim, I turn to the even more serious matter of the panel’s failure to follow Supreme Court standing precedent. 3. The Panel Decision Puts this Court at Odds with Supreme Court Precedent Most disturbing about the court’s decision not to convene en banc is that it thereby allows a novel, reduced standing standard, at odds with Supreme Court precedent, to become citable as the law of this circuit. To establish standing on summary judgment, plaintiffs were required to demonstrate three elements that constitute the “irreducible constitutional minimum” for standing: (1) an injury in fact, i a., “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) a causal connection, i.e., “the injury has to be fairly traceable to the challenged action of the defendant”; and (3) redressability, i.e., “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. at 560-61,112 S.Ct. 2130 (internal citations, quotation marks, and alterations omitted). The obvious concrete injury to be expected from unlawful electronic surveillance is interception. Plaintiffs, however, offer no evidence that they have ever actually been intercepted by FAA surveillance. Nor have they established that any such interception is “imminent,” a term that the Supreme Court construes to mean “certainly impending.” Id. at 564 n. 2, 112 S.Ct. 2130 (emphasis in original; internal quotation marks omitted); see also Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1152-53, 173 L.Ed.2d 1 (2009) (refusing to dilute strict imminence requirement to demand only “realistic threat that reoccurrence of the challenged activity would cause the plaintiff harm in the reasonably near future” (emphasis in original; internal quotation marks and brackets omitted)). Instead, plaintiffs profess only a fear of FAA interception, which is plainly insufficient to establish standing. See City of Los Angeles v. Lyons, 461 U.S. 95, 107 & n. 8, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (holding that subjective fear of police misconduct, even when grounded in past injury, is not enough to demonstrate imminent threat: “It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiffs subjective apprehensions.” (emphasis in original)). Rather than follow this precedent to its inevitable conclusion — dismissal of plaintiffs’ claim for lack of standing — the panel asserts that it “overstates” the standing standard to require plaintiffs to demonstrate that it is “effectively certain” that they will be intercepted on FAA surveillance. Amnesty Int’l USA v. Clapper, 638 F.3d at 135. How does the panel elide the precise future-injury standard — “certainly impending” — articulated in Lujan? By reasoning that, in lieu of injury inflicted by the government through actual or imminent FAA interception, plaintiffs can establish standing through self-inflicted injury, specifically, costs incurred to meet with foreign contacts rather than risk feared FAA interception. The panel concludes that with actual injury thus established, the likelihood of interception becomes relevant only to causation, i.e., were the incurred costs “fairly traceable” to the FAA? Id. As to this requirement, the panel uses a purported admonition to set a very low bar — “If the possibility of interception is remote or fanciful, [plaintiffs’] present-injury theory fails because [they] would have no reasonable basis for fearing interception under the FAA, and they cannot bootstrap their way into standing by unreasonably incurring costs to avoid a merely speculative or highly unlikely potential harm,” id. at 133-34 — which is then applied to identify a claim for future injury as well. See Lynch, J., Op., ante at [167] (observing that “the same analysis that supports the conclusion that the plaintiffs’ present-injury theory satisfies the causation prong further supports the conclusion that the plaintiffs’ future-injury theory properly satisfies the injury-in-fact prong” (emphasis in original)). Thus, for the price of a plane ticket, plaintiffs can transform their standing burden from one requiring a showing of actual or imminent FAA interception to one requiring a showing that their subjective fear of such interception is not “fanciful,” “irrational,” or “clearly unreasonable.” Id. at 133, 135. Had the idea only occurred to the plaintiff in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675, he presumably could have avoided the need to show an actual or imminent risk of being subjected to the challenged police chokehold procedure simply by moving from Los Angeles to Glendale, and then claiming that the actual injury of his moving costs was “fairly traceable” to a not-irrational fear of a procedure to which he, after all, had already been subjected. I doubt that the Supreme Court would have found such an argument convincing in Lyons for the same reason it fails to persuade here. Plaintiffs’ costs — to the extent any were even demonstrated, see infra at [184-85] — are fairly attributed not to the FAA but to their own subjective fear of FAA interception, which they claim has chilled their normal exchange of international communications. The Supreme Court has ruled that such subjective chilling cannot support standing. See Laird v. Tatum, 408 U.S. 1, 10, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) (holding that plaintiff “who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity” lacks standing to invoke federal jurisdiction). Applying Laird to plaintiffs’ case, the district court explained: What made the chilling effect subjective in Laird was the plaintiffs’ failure to show that they were subject to the challenged policy and faced a threat of harm from it. The plaintiffs could only show that the surveillance policy existed. The plaintiffs’ failure to substantiate the alleged chill with proof that they really were subject to the information gathering policy made their alleged chill “subjective.” See Ozonoff v. Berzak, 744 F.2d 224, 229 (1st Cir.1984) (Breyer, J.) (interpreting phrase “without more” in Laird to mean that “[t]he plaintiffs in Laird did not claim that the information gathering activities were directed against them specifically or that the gathered data could be directly used against them in any foreseeable way”). All of the plaintiffs’ alleged “objective” expenditures are insufficient to establish standing because they all arise from the plaintiffs’ choices to incur expenditures and costs that are not based on a sufficient showing that the statute in question was directed at them. Amnesty Int’l USA v. McConnell, 646 F.Supp.2d at 655. The Laird concerns highlighted by the district court — and referenced by then-Judge Breyer in Ozonojf — sre not allayed by plaintiffs’ self-incurred travel costs. As a matter of law, plaintiffs cannot be the targets of FAA surveillance. Thus, whether they incurred costs or not, they cannot show that information gathering activities under the challenged statute will be directed against them. Indeed, the statute provides specific safeguards to ensure against that possibility, see 50 U.S.C. § 1881a(b)-(d), (f)-(g), as well as strict limits on the use of any information coincidentally intercepted from United States persons, see id. §§ 1801(h), 1806,1881a(e), 1881e(a). To sidestep the adverse standing conclusion dictated by Laird, the panel attempts to cabin that Supreme Court decision to its facts and to dismiss as dictum any part that might be construed to identify a general rule. See Amnesty Int’l USA v. Clapper, 638 F.3d at 146-48. The panel posits that “the Laird plaintiffs so obviously lacked standing that the Court did not need to create stricter standing rules in the surveillance context in order to deny plaintiffs standing.” Id. at 148. I agree that Laird did not establish “stricter” standing rules for surveillance cases. But I cannot agree that the Supreme Court was pronouncing mere dictum when it identified circumstances where a subjective chilling effect cannot support standing. The Court made this point in distinguishing cases in which standing had been recognized even though the “deterrent, or ‘chilling,’ effect of governmental regulations [fell] short of a direct prohibition against the exercise of First Amendment rights.” Laird v. Tatum, 408 U.S. at 11, 92 S.Ct. 2318. It stated as follows: In none of these cases, ... did the chilling effect arise merely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging. Id. It can perhaps be debated whether the second sentence should be construed as definitional or merely illustrative of circumstances where a chilling effect can establish standing. But what the panel could not do was dismiss the first sentence, which holds that the circumstances there identified cannot support standing. Thus, Laird compels the conclusion here that plaintiffs lack standing because any chilling of their electronic communications with foreign contacts, including costs incurred in forgoing such communications, arose “merely” from their knowledge of the existence of a program that they feared could target their contacts. Laird v. Tatum, 408 U.S. at 11, 92 S.Ct. 2318. In concluding otherwise, the panel not only fails to follow Lyons and Laird, but also misapplies Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). In that case, the Supreme Court held that plaintiffs who had taken steps to avoid a polluted river had standing to challenge defendants’ unlawful discharge of pollutants into the waterway. The panel cites Laidlaw as support for its conclusion that “[d]espite not being directly regulated, a plaintiff may establish a cognizable injury in fact by showing that he has altered or ceased conduct as a reasonable response to the challenged statute.” Amnesty Int’l USA v. Clapper, 638 F.3d at 141. This ignores circumstances critical to the Laidlaw decision that are notably absent from this case. In Laidlaw, the defendant was then actually discharging pollutants into the river, making plaintiffs’ exposure to those pollutants certain if they resumed their abandoned recreational use of the river. It was in these circumstances where, but for plaintiffs’ own forbearance, they would unquestionably have been subjected to the injurious conduct, that the Court addressed the “reasonableness” of plaintiffs’ avoidance of the river. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at 184, 120 S.Ct. 693 (concluding that there was “nothing improbable about the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms” (internal quotation marks omitted)). In short, Laidlaw established a two-step standing inquiry, “requiring] that plaintiffs demonstrate that they (1) are in fact subject to the defendant’s conduct, in the past or future, and (2) have at least a reasonable fear of harm from that conduct.” ACLU v. NSA, 493 F.3d at 689 (Gibbons, J., concurring) (emphasis added). Here, plaintiffs’ standing claim fails at the first step of the Laidlaw analysis. They cannot demonstrate that the executive is certainly conducting FAA surveillance of their foreign contacts, much less that if they resume electronically communicating with these contacts, they will in fact be intercepted. Plaintiffs assert that they reasonably fear such interception, but whether they will ever be subject to it remains a matter of complete conjecture. See id. at 656 (Batchelder, J.) (stating with respect to similarly situated plaintiffs that even though their fears of surveillance “may be reasonable, the alternative possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in this lawsuit” (emphasis in original; footnote omitted)). For that reason, plaintiffs’ situation is more aptly analogized to Lyons than to Laidlaw in that they claim only “ ‘subjective apprehensions’” that FAA surveillance will “even take place.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at 184, 120 S.Ct. 693 (quoting Los Angeles v. Lyons, 461 U.S. at 107 n. 8, 103 S.Ct. 1660, in distinguishing two cases) (emphasis in Laidlaw). The distinction the Supreme Court thus draws between the facts supporting standing in Laidlaw and those failing to support standing in Lyons must be recognized as “one of kind, not degree,” i.e., between subjective apprehension in Lyons as to whether challenged governmental conduct would even take place, and the subjective issue in Laidlaw as to whether it was reasonable for plaintiffs to fear harm from pollutants that unquestionably were being discharged into the river. ACLU v. NSA, 493 F.3d at 690 (Gibbons, J., concurring). In short, what was uncertain about the claimed injury in Laidlaw was not defendants’ conduct — about which there was no doubt — but the science of pollution. Likewise, in other “prospective injury” cases cited by the panel, the plaintiffs were found to have standing because they were subject to the conduct challenged, or at least certainly would be subject to it if they took certain actions within their control. Thus, as Judge Gibbons observed, it is error to transform the Supreme Court’s holding in Laidlaw, “under which the plaintiffs who were in fact subject to defendant’s conduct had standing because they reasonably feared harm from that conduct, into a much broader proposition, under which plaintiffs may establish standing by showing merely that they possess a reasonable fear of being subject to defendant’s allegedly harmful conduct.” Id. at 689 (emphasis in original). This court needs to say so en banc. 4. The Factual Record Fails To Satisfy Even the Panel’s Reduced Standing Standard After pronouncing a reduced standing standard at odds with Supreme Court precedent, the panel allows plaintiffs to satisfy that standard on a negligible factual record. The panel identifies actual present injury based on plaintiffs’ sworn assertions that “it has become more difficult and expensive to practice their professions as a result of the enactment of the FAA.” Lynch, J., Op., ante at [168 n. 6]; see Amnesty Int’l USA v. Clapper, 638 F.3d at 133. It is no coincidence that the panel summarizes the assertions referenced. A review of the declarations submitted by plaintiffs reveals them to be notably lacking in the requisite “specific facts.” Lujan v. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks omitted). Two declarants conelusorily report only that they “will have to travel” at unspecified future times to avoid FAA interception of their conversations with foreign sources. See Mariner Deck ¶ 10 (stating that, as a result of FAA, “I will have to travel abroad to gather information that I would otherwise have gathered by telephone or e-mail”); Klein Deck ¶ 9 (stating that, as a result of FAA, “I will have to travel to gather information that I previously might have gathered by telephone or e-mail”). Two other declarants imply actual travel without providing any particulars. See Hedges Deck ¶ 9 (reporting that FAA “has made my work very difficult and often requires me to travel to see those who have information” and that “[t]he financial cost and time required to speak with many of my contacts is now immense”); McKay Decl. ¶¶ 8, 10 (stating that, after FAA was enacted, “[w]henever possible,” declarant and law partner “collect information in person rather than by telephone or email ... [which] requires travel that is both time-consuming and expensive”). Finally, one declarant who resides in Washington, D.C., asserts that, “[m]ost recently,” she traveled “to New York City to meet with” a French barrister to discuss her representation of a Guantanamo Bay detainee. Royce Deck ¶ 7. Assuming that the declarant incurred costs for this trip — a fact not specifically asserted — those costs cannot constitute FAA injury because the statute would not have permitted interception of electronic communications with a French national who was in New York. See 50 U.S.C. § 1881a(b)(l) (precluding targeting of any person known to be in United States). Thus, while the panel’s identification of self-incurred costs as the actual present injury in this case is legally unsupportable for reasons discussed in the previous section of this opinion, it also lacks the requisite foundation in “specific facts,” even without considering the “much more” convincing factual showing required of a non-target. Lujan v. Defenders of Wildlife, 504 U.S. at 561-62,112 S.Ct. 2130. The panel further concludes that, whether as a matter of causation or actual future injury, plaintiffs demonstrate a reasonable, i.e., not “fanciful,” “irrational,” or “clearly unreasonable,” fear of FAA interception because their fear is “based on a reasonable interpretation of the challenged statute and a realistic understanding of the world.” Amnesty Int'l USA v. Clapper, 638 F.3d at 139. But how reasonable can it be to interpret the FAA — a statute that, on its face, requires all interceptions conduct