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The race to bring NSA surveillance to the Supreme Court

The race to bring NSA surveillance to the Supreme Court


There are at least three pending cases against the agency with a shot at making it all the way

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Mike Taylor, who lives in Dublin, Georgia, says the National Security Agency has been watching him since 2006. He knows because they communicate with him. "They talk to me on a daily basis," he explains evenly over the phone. "They insult my looks. They insult my intelligence. They use racial slurs against me."

He didn’t know why he was being surveilled, however, so he filed a Freedom of Information Act request to find out. When the NSA blew him off with its infamous boilerplate "neither confirm or deny" letter, he filed a lawsuit. Last month, a judge ruled against him.

I found Taylor’s case while sifting through the dozens of federal lawsuits that have been filed against the NSA since former government contractor Edward Snowden started leaking internal documents. Many are written by hand and filed from mental institutions. Most get dismissed for frivolousness, but somehow Taylor got all the way through to a ruling. He even has a chance to appeal.

It’s unlikely that the NSA is spying on Taylor and calling him names. But you could argue that he has a case.

The legality of the NSA's programs has yet to be definitively challenged

It’s been almost a year since the nation learned that the government has been heavily surveilling Americans using a web of programs that potentially violate the Constitution or at least some laws. The legality of those programs has yet to be definitively challenged. Even if the programs are legal, many feel the government is at least obligated to be transparent about them.

Anne Smith, an apparently mentally stable woman in Idaho, filed a lawsuit challenging the constitutionality of the phone records collection program. "It’s none of their business what I’m doing — who I call, when I call, how long I talk," she told the Washington Post. Rand Paul, who represents a constituency that strongly opposes government overreach, has filed a class action lawsuit, calling the bulk collection of phone records a "clear and continuing violation of the Fourth Amendment."

Those are just two examples out of at least 25 major lawsuits have been filed against the NSA, Barack Obama, telecommunications companies that facilitated data collection, and others involved in the government’s surveillance programs since Edward Snowden’s first revelations on June 6th, 2013, according to investigative journalism nonprofit ProPublica. There have been various rulings by lower courts and appeals courts, some of which contradict each other. So far, only one case has been dismissed.

The lack of consensus suggests that some part of the NSA program should eventually come before the Supreme Court.

Lunatics aren’t the only ones trying to get an answer

"I think there is widespread agreement that there are some legal issues in these cases that only the Supreme Court will be able to resolve," says Jameel Jaffer, deputy legal director for the American Civil Liberties Union, which has filed a number of lawsuits challenging NSA surveillance.

"The question of where the constitutional limits are is a crucial one," Jaffer says. "It’s important that the courts be engaged on that particular question, and more generally on these issues of the proper scope of government surveillance in a constitutional democracy."

The legal landscape is messy, however. You can’t simply sue the NSA for overzealous surveillance on behalf of all Americans. Lawyers must choose which aspects of the surveillance program to challenge, along with which government agencies and on what grounds. Plaintiffs may say the NSA violated the First, Fourth, and Fifth Amendments of the Constitution, as well as the Freedom of Information Act and other laws. Some challenge Section 215 of the Patriot Act, which the government says authorizes bulk metadata collection; others address Section 702 of the 2008 Foreign Intelligence Surveillance Act Amendments, which the government says authorizes PRISM; and others challenge the classification of information related to the surveillance programs.

Justices Scalia and Ginsburg said the court will have to address the NSA issue

There are arguably three cases closest to reaching the Supreme Court, all challenging section 215 and the phone-record surveillance. Two were filed after the Snowden revelations, and one was filed back in 2006 but just recently cleared a legal hurdle.

Klayman v. Obama et. al. is a $3 billion lawsuit filed on behalf of all Verizon customers, alleging that section 215 and the secret FISA court order violate the First, Fourth, and Fifth Amendments, and other laws. DC federal judge Richard Leon ruled in Klayman’s favor in December and the government now has six months to appeal.

(Klayman also filed a parallel case against PRISM and section 702, but that was dismissed by the judge because he couldn’t prove the government had monitored any specific communications.)

ACLU et. al. v. Clapper et. al. accuses the government of "dragnet" surveillance that threatens the work of organizations that work with confidential sources, while also violating the First and Fourth Amendments and other laws. New York federal judge William Pauley found that the program is lawful around the same time that Judge Leon ruled the opposite way in DC. The ACLU has appealed and an argument is likely to take place over the summer.

Jewel et. al. v. National Security Agency was filed by the Electronic Frontier Foundation on behalf of AT&T customers in 2008, after the first revelations of NSA warrantless wiretapping. A judge ruled over the summer that the government’s state secrets defense was invalid and the case could proceed. The plaintiffs claim the government violated separation of powers, the First and Fourth Amendments, the Foreign Intelligence Surveillance Act, the Wiretap Act, the Stored Communications Act, and the Administrative Procedure Act.

There are also challenges in the criminal courts. The government recently disclosed records of when warrantless surveillance was used against defendants who have been charged and convicted of terrorism-related crimes. Three of those defendants — two convicted, one charged — challenged the constitutionality of section 702 as a result. Jamshid Muhtorov, who has been charged but not convicted of supporting a terrorist organization in Uzbekistan, is asking a judge to throw out the evidence from warrantless surveillance.

Two weeks ago, Justices Antonin Scalia and Ruth Bader Ginsburg implied during an interview that the Supreme Court will hear a case about the NSA issue, specifically on the Fourth Amendment challenge, at some point. However, there are reasons to believe the Supreme Court is not eager to take up any of these challenges any time soon, and they aren't obligated to do so ever. Section 215 must be reauthorized in the middle of next year, and the Supreme Court may be hesitant to address a law that is going to change so soon. The details of the surveillance programs are still emerging, so the court may want to wait until there is a more complete picture.

"One or all of these cases are eventually going to make their way to the Supreme Court."

Some privacy advocates are still optimistic. "One or all of these cases are eventually going to make their way to the Supreme Court. It’s just a matter of timing and whether they’re consolidated," says Amie Stepanovich, senior policy counsel at the human rights organization Access.

She’s betting on the Klayman case, the ACLU case, or First Unitarian et. al. v. National Security Agency, which was filed in California and hasn’t had an opinion entered yet. That case challenges the phone metadata program and leans primarily on the First Amendment right to free association, followed by claims under the Fourth and Fifth Amendments and other laws.

The slow pace of justice may seem frustrating as we close in on the anniversary of Snowden’s revelations. Opponents of mass surveillance say the issue threatens democracy, while proponents say it’s crucial to keeping us safe. Meanwhile, Snowden continues to stoke the fire from exile in Russia, while news that the Pulitzer Prize went to the journalists who broke his story reinvigorated the debate. Americans need closure, and the Supreme Court is one way to get it. And maybe then Mike Taylor can finally find out what the government has got on him.