The U.S. Supreme Court unceremoniously denied a legal challenge brought against the National Security Agency for its domestic spying program that has allowed for the bulk collection of the phone data of millions of U.S. cell phone users.
The challenge, brought by the Electronic Privacy Information Center (EPIC), was unique in that it was the first of its kind to reach the Supreme Court by bypassing lower federal courts.
That was necessary, according to EPIC, because no other federal court would have the authority to challenge the secrecy inherent in the NSA program or weigh in on the closed-door authorization the spy agency received from the Foreign Intelligence Surveillance Court (FISC) which approved the process by which Verizon was compelled to hand over all of its customer records—which number in the tens of millions—to the government.
The existence of the program only came to public light after a FISC order was leaked by NSA whistleblower Edward Snowden and published in a newspaper article by journalist Glenn Greenwald in June.
As Wired reported on Monday following the court's decision:
The court’s inaction means that the there isn’t likely to be any court resolution to constitutional challenges to the metadata program for years. Legislation, however, is pending to gut the program.
What’s more, several cases challenging the snooping are pending in federal courts across the country. EPIC’s petition was unusual in that it went directly to the Supreme Court without first being litigated in the lower courts.
The Washington, D.C. based non-profit privacy group went straight to the justices after Snowden’s leak because of the gravity of the phone spying, which includes telephone companies having to provide the NSA the phone numbers of both parties involved in all calls, the International Mobile Subscriber Identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls.
In its briefs, EPIC claimed that all calling records cannot be relevant to an investigation.
“The ongoing collection of the domestic telephone records of millions of Americans by the NSA, untethered to any particular investigation, is beyond the authority granted by Congress to the FISC …” according to EPIC’s petition.
Amie Stepanovich, an attorney who works with EPIC, responded to the Court's decision by tweeting:
Key concept to grasp: SCOTUS opinion doesn't make NSA's dragnet surveillance any less unlawful.
— Amie Stepanovich (@astepanovich) November 18, 2013
And Lyle Denniston, writing at ScotusBlog, explains:
The EPIC plea was filed directly in the Court, without prior lower court action. The group requested that the Justices direct a judge of the secret Foreign Intelligence Surveillance Court to vacate an order he issued in April requiring a branch of the telephone giant Verizon to turn over to the government a vast array of data, including sweeps of U.S. telephone calls and Internet exchanges. The Court very rarely grants such a “writ of mandamus or prohibition.”
EPIC had contended that no other court was open to hear a challenge to orders of the FISA Court, so the Supreme Court should consider its case now. The Justice Department had answered that EPIC could attempt to pursue its case in lower courts first, although the government has attempted to thwart review of previous challenges.
Among the other challenges making their way through the lower courts, the ACLU will be presenting its challenge to the NSA in a federal court in Manhattan at the end of this week. Like EPIC, ACLU is specifically challenging legality of the bulk spying on the telephone communications of U.S. citizens and residents.
"This kind of dragnet surveillance is precisely what the Fourth Amendment was meant to prohibit," said ACLU Deputy Legal Director Jameel Jaffer, one of two ACLU lawyers who will argue in court Friday. "The Constitution does not permit the NSA to place hundreds of millions of innocent people under permanent surveillance because of the possibility that information about some tiny subset of them will become useful to an investigation in the future."