The Electronic Privacy Information Center (EPIC), a legal group that specializes in privacy and free speech issues, is challenging the legality of the NSA's surveillance program in the Supreme Court. Today, the group filed a petition arguing that the Foreign Intelligence Surveillance Court, which approved a bulk gathering of Verizon customers' metadata in a leaked court order, does not have the authority to "require production of all domestic call detail records" based on the actual law. While privacy cases have already been filed against NSA surveillance, EPIC director Marc Rotenberg told The New York Times yesterday that this case will be the first to directly challenge the FISA court's ability to approve this kind of bulk data collection.
EPIC has said that it's taking this petition directly to the Supreme Court because no other state or federal court can issue orders to the secretive FISA court. In this case, the petition is asking the Supreme Court to review the leaked Verizon court order and either overturn it and ban future orders or review the FISA court's judgment in the case. Its argument hinges on a requirement that the NSA must prove collected data is "relevant" to a case. "It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States [italics in original] could be relevant to an investigation," write EPIC's lawyers.
The petition asks for a writ of mandamus, a rare legal procedure that could give EPIC a faster resolution than a traditional suit. Over the next 30 days, supporters will file briefs offering their own legal opinions, but the petition won't be considered until at least October. While it's not an emergency petition, however, EPIC says that it's been filed as an "extraordinary" one that should be considered at the earliest opportunity.
"It is simply unreasonable to conclude that all telephone records ... could be relevant to an investigation."
So far, complaints about NSA surveillance haven't done well in the Supreme Court. While the court agreed to consider a case regarding the much-criticized FISA Amendments Act, it later decided against hearing it. In a 5-4 decision, the court decided that although plaintiff Amnesty International said it had been harmed by likely surveillance under FISA, it couldn't prove this and therefore had no standing — primarily because the NSA refused to provide estimates or information on how many people it watched.
"The Verizon Order approved by the FISC implicates the privacy interests of all Verizon customers."
Now, EPIC has argued that the court order provides concrete evidence. "The Verizon Order approved by the FISC implicates the privacy interests of all Verizon customers, including petitioner EPIC," the petition reads. "By ordering surveillance of all Verizon customers, the FISC permitted the NSA to gather the metadata of EPIC's conversations with consumers, advisors and advisees, donors, other privacy advocates, Members of Congress, agency officials, and journalists. The government need not stage a 'heavy-handed frontal attack' against EPIC's communications in order to threaten its right to free speech and association."
Recent reports indicate that the FISA court has considered the question of whether all data can be "relevant" to an investigation — but it hasn't found a problem. Sources say that that court believes the "total picture" of data can be considered relevant, even if it doesn't seem directly tied to an investigation, and the FBI and NSA have told Congress that they can only find information quickly enough if they have access to all records.
Outside EPIC's case, members of Congress are proposing new privacy laws in the wake of recent high-profile leaks and last year's reauthorization of the FISA Amendments Act. Senator Patrick Leahy (D-VT) is attempting to make amendments to FISA and the Patriot Act expire faster, and several Senators hope to reform the Electronic Communications Privacy Act, which could make it harder for agencies besides the NSA to access email records. The Obama Administration, meanwhile, has defended the program, which it says is vital to uncovering national security threats and allows only a minimal invasion of privacy.