Supreme Court Refuses to Consider EPIC Challenge to NSA Surveillance

The challenge to the NSA’s domestic surveillance program filed with the Supreme Court by the Electronic Privacy Information Center ended Monday, with the court refusing to consider the challenge at all. EPIC had filed the challenge directly with the Supreme Court rather than going through the lower courts.

EPIC, a non-profit organization involved in privacy policy matters, had asked the court to vacate an order from a judge in the Foreign Surveillance Intelligence Court that had enabled the NSA’s collection of hundreds of millions of Verizon call records under the so-called metadata collection program. The challenge hinged on the idea that the FISC had gone outside of its authority in granting the order.

“EPIC seeks a writ of mandamus to review the order of Judge Roger Vinson, United States Foreign Intelligence Surveillance Court (“FISC”) requiring Verizon Business Network Services (“Verizon”) to produce to the National Security Agency (“NSA”) call detail records, or “telephony metadata,” for all calls wholly within the United States. Mandamus relief is warranted because the FISC exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation. EPIC is a Verizon customer subject to the order. Because of the structure of the Foreign Intelligence Surveillance Act (“FISA”), no other court may grant the relief that EPIC seeks,” the group’s challenge says.

In denying the challenge, the Supreme Court made no comment about the petition or its validity, but simply refused to consider it. EPIC lawyers  in their petition argued that because of the FISC’s unique position and jurisdiction, the Supreme Court was the only court with proper jurisdiction to review the challenge.

“The plain terms of the Foreign Intelligence Surveillance Act and the rules of the FISC bar EPIC from seeking relief before the FISC or Court of Review. The FISC may only review business record orders upon petition from the recipient or the Government,” the petition says.

Under the order granted by the FISC, the NSA has the ability to compel Verizon to turn over metadata related to millions of phone calls made every day. Metadata does not include the content of calls, but does comprise things such as the originating and terminating phone numbers and length of call. The revelation of the existence of this program earlier this year was the beginning of the leaks from former NSA contractor Edward Snowden related to the agency’s surveillance and intelligence-gathering capabilities. It sparked a huge amount of outrage among privacy advocates and security experts who saw it as proof that the U.S. government is conducting surveillance on American citizens.

Marc Rotenberg, the president of EPIC, said in a statement that the group was disappointed in the court’s decision and that it still maintains the FISC order is illegal.

“Obviously, we are disappointed by the Supreme Court’s decision,” said  Rotenberg. “The surveillance order was clearly unlawful. There is simply no way to establish relevance for the collection of all telephone records on all US telephone customers for an intelligence investigation.

“The FISA makes it very difficult to challenge these determinations. That is why we urged the Supreme Court to take the case and reverse the order of the Foreign Intelligence Surveillance Court.”

Image from Flickr photos of TexasGOPvote.

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