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Challenge to global phone taps (FURTHER UPDATED)

(FURTHER UPDATED Thursday 5:55 p.m.   The Supreme Court has now docketed this case as 13-58.   The government’s response is now due on August 12, but the government frequently obtains extensions of time for such filings.)


(UPDATED Monday 4:55 pm: The petition discussed in this case has now been filed at the Supreme Court.  It does not yet have a docket number assigned.  New material has been added at the end of this post.)


A digital-age privacy advocacy group, attempting an unusual maneuver, plans to ask the Supreme Court today to nullify an order by a secret federal court that authorized the government to gather vast amounts of telephone and other data from customers in the United States as part of a global spying operation.  The Electronic Privacy Information Center seeks a ruling that the Foreign Intelligence Surveillance Court (“FISC”) did not have the authority to approve such a sweeping collection of private data.  The plea would bypass any lower court.

The filing, due this afternoon, is here.  It includes as one of the appendices a copy of a FIS Court judge’s secret order — released publicly by Edward Snowden, now widely known as the National Security Agency leaker — that gave the NSA legal permission to scan the details of calls made by customers of Verizon Business Network Services.  EPIC’s filing tells the Court that EPIC “is a Verizon customer.”   The group issued this press release about its legal step.

EPIC’s move is the boldest of a number of legal challenges to NSA that have been filed around the country by privacy defenders in the wake of Snowden’s public disclosure of some of the details of NSA surveillance.  EPIC filed under a Supreme Court rule that permits “extraordinary” filings directly in the Supreme Court, without first making a trip through a lower court, when “exceptional circumstances warrant the exercise of the Court’s discretionary powers” and an adequate remedy cannot be obtained “from any other court.”  The history of such Rule 20 requests shows that few are granted.  The Court’s own rules say that the power to grant such pleas is “sparingly exercised.”

Labeled a “petition for a writ of mandamus and prohibition, or a writ of certiorari,” EPIC’s document sought to raise two issues: first, whether the FIS Court went beyond powers granted by Congress in ordering Verizon to disclose to NSA “records . . . for all telephone communications ‘wholly within the United States, including local telephone calls,'” and, second, whether the Court will vacate the secret court’s order or provide other “appropriate relief.”

Attached to the petition is a copy of an order dated April 25 and signed by Roger Vinson, a U.S. District Court Judge who sits in Florida but who issued this order in his temporary capacity as a judge of the FIS Court.   Because that order was issued in secret, the petition noted, it is not officially on record anywhere.  All judges who sit temporarily on that court and pass upon government intelligence surveillance requests are named by Chief Justice John G. Roberts, Jr.

What that order mandated, EPIC argues, is the “production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.”  And, because of the structure of the federal law setting up the FIS Court and directing its operations, the petition said, “no other court may grant the relief that EPIC seeks.”

Under the law at issue, EPIC says, the compelled disclosure to the government of “tangible things” must involve only items that are relevant to a foreign intelligence investigation. “It simply is not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation.  Such an interpretation [of the law] would render meaningfless the qualifying phrases contained in the provision and eviscerate the purpose of the Act.”

Legal efforts in the past to challenge NSA intelligence surveillance have failed in various federal courts, including, most recently, in the Supreme Court itself.   In February, in the case of Clapper v. Amnesty International, the Court blocked a lawsuit by a group of journalists, lawyers, and advocates to review the legality of NSA’s global monitoring of private telephone, cable, and Internet communications.   The Court ruled that no one involved could show that they had been, or might in the future be, monitored by the program.

With the happenstance leak of Judge Vinson’s order to the telephone giant Verizon, EPIC’s lawyers hoped to get past that legal barrier.   Their new filing argues that Judge Vinson’s order “implicates the privacy interests of all Verizon customers.”  They noted that EPIC “engages in protected attorney-client communications as it pursues litigation to safeguard privacy.”

The law creating the FIS Court, the filing notes, “does not allow Verizon customers, including EPIC, to challenge the order [by Judge Vinson] or seek review of the order” either before the special court or before the special appeals court that has the authority to review FIS Court actions.  As a result, the petition argues, EPIC “can only obtain relief” from the Supreme Court.  While conceding that the specific step it is taking involves “an extraordinary remedy,” it adds that “the Verizon order carries extraordinary ramifications.”

Because the kind of action EPIC is seeking is subject to the complete discretion of the Supreme Court, under its rules, the Justices presumably have a wide range of options open in reaction.  They could ask the federal government for a response, or they presumably could act simply on the basis of the materials EPIC will be filing.

UPDATE: The following has been added after a telephone conference call with the news media Monday afternoon.

Marc Rotenberg, EPIC’s president, told reporters that the organization had kept its request narrow, to reflect the significance of the unusual plea it was asking the Court to consider.  “It would have been a little bit too much,” he said, if EPIC had sought some immediate action by the Court, or if it had added a constitutional question, such as the impact of the Fourth Amendment’s privacy guarantees.  The case as filed, he said, is focused solely on whether the federal law has been “appropriately applied.”

Noting that he has had extensive experience in privacy cases, Rotenberg commented that “I’ve never seen a court order as broad — applied solely to domestic communications.”

Asked to discuss the potential impact on this petition of the Court’s Clapper decision, he said there were “key facts” making the two cases difference: first, that the Clapper case involved a surveillance program of unknown scope, while the petition relies upon the actual text of Judge Vinson’s order showing its breadth, and, second, that much of the Clapper ruling was focused on gathering foreign intelligence, while this case involves communications in the U.S.   The Vinson order, he added, “is the key.”

On the question of whether the petition satisfies the Court’s rule that such a request could not have been pursued in any other court, Rotenberg said that, “if we could have filed elsewhere, we would have.”   The lower federal courts, he said, would not have the authority to nullify an order of the FIS Court.  And, he said, his group would have no legal right to appear before the special FIS appellate court to challenge the Vinson order.

He said he assumed that the Court would take no action on the petition until early in its next Term, beginning in October.

Recommended Citation: Lyle Denniston, Challenge to global phone taps (FURTHER UPDATED), SCOTUSblog (Jul. 8, 2013, 12:04 PM),