The Court dismissed the case by following the US government's argument that "the claims of the challenges that they were likely to be targets of surveillance were based too much on speculation and on a predicted chain of events that might never occur, so they could not satisfy the constitutional requirement for being allowed to sue.

[14]The USCC then took Verrilli's assurance and ruled in accordance with the FAA §1881a according to which criminal defendants who are prosecuted using evidence obtained or derived from FAA surveillance are entitled to notice:[15] If the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.

In a prosecution in Federal District Court in Fort Lauderdale, Florida, against two brothers accused of plotting to bomb targets in New York, the government has said that it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, which authorizes individual warrants.

[19] The expanded surveillance program authorized in 2008 allows the FAA, however, targets non-Americans persons “reasonably believed” to be located outside the United States, and it does not require that the government to obtain individual warrants before it intercepts communications.

[19] Moreover, the purpose of the collection is “foreign intelligence,” a broad category that may include everything from information on terrorism to nuclear proliferation to European journalist writing on human rights abuses or an African businessman talking about global financial risk.

[19] In essence, the law authorized the government to wiretap Americans’ e-mails and phone calls without an individual court order and on domestic soil if the surveillance is “targeted” at a foreigner abroad.

[21]Verrilli had told the Supreme Court justices that somebody would have legal standing to trigger review of the program because prosecutors would notify people facing evidence derived from surveillance under the 2008 FISA Amendments law.

However, it turned out that Verrilli's assurances clashed with the actual practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant.

For Verrilli, that led to the question of whether any persuasive legal basis exists for failing to clearly notify defendants that they faced evidence linked to the 2008 warrantless surveillance law, which prevented them from knowing that they had an opportunity to argue that it derived from an unconstitutional search.