A privacy-rights organization faces an uphill battle to persuade the U.S. Supreme Court to halt the National Security Agency’s surveillance of domestic telephone records.
The Electronic Privacy Information Center (EPIC), a Washington-based nonprofit public-research center, on Monday filed a petition for a writ of mandamus, or, in the alternative, a petition for review, with the justices. It charged that the Foreign Intelligence Surveillance Court (FISC) exceeded its statutory authority under the Foreign Intelligence Surveillance Act when it ordered “production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.”
“It makes a compelling case for review,” said Dean Erwin Chemerinsky of the University of California Irvine School of Law. “Yet the procedural posture is unusual.”
A “jurisdictional pickle,” said Stephen Vladeck of American University Washington College of Law.
The FISC on April 25 ordered Verizon Business Network Services to turn over to the NSA all telephone records for calls made “wholly within the United States, including local telephone calls.” The order was issued by Senior District Judge Roger Vinson of Tallahassee, Fla., a member of the surveillance court, who was acting on an application by the FBI.
“Telephone records, even without the content of the calls, can reveal an immense amount of sensitive, private information,” EPIC president Marc Rotenberg said in a written statement. “There are no reasonable grounds for the NSA to have access to every call record of every Verizon customer. The FISC has applied the FISA in a way that is contrary to both the text and purpose of the statute.”
EPIC, a Verizon customer, contends that to compel production of “tangible things,” the FISA requires the items sought to be relevant to an authorized investigation.
“It is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation,” the petition argues. “Such an interpretation of Section 1861 would render meaningless the qualifying phrases contained in the provision and eviscerate the purpose of the Act.”
Under U.S. Supreme Court rules, the writ of mandamus is an extraordinary writ issued as a matter of discretion “sparingly exercised.” The justices in a 1980 decision quoted lyrics by Gilbert & Sullivan to describe the chances of winning mandamus as “What never? Well, hardly ever!”
To justify granting the writ, the petitioning party must show “that the writ will be in aid of the court’s appellate jurisdiction, that exceptional circumstances warrant the exercise of the court's discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court,” according to the rules.
In its petition, EPIC says that the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review only have jurisdiction to hear petitions by the government or the recipient of a FISA order. “Other federal courts have no jurisdiction over the FISC, and thus cannot grant the relief that EPIC seeks,” the organization says.
Writs of mandamus in aid of appellate jurisdiction, it also argues, are traditionally used to confine a lower court to the lawful exercise of its jurisdiction. “Such a jurisdictional correction is required here,” it contends. “The Business Records provision does not enable this type of domestic programmatic surveillance.”
And as for “exceptional circumstances,” the petition states, “This case involves a far-reaching FISC order that gives the NSA access to the telephone call records of millions of Americans on an ongoing basis. Such a broad grant of executive power is not permitted under the FISA and cannot be justified by a non-particularized connection to general national security threats.”
The petition raises “a crucial question” about the scope of the FISC's authority, Chemerinsky said, but two concerns might cause the justices to hesitate.
In the high court term just ended, the justices, in a 5-4 decision in Clapper v. Amnesty International, ruled that a group of civil and human rights organizations, lawyers, writers and others lacked standing to challenge the Foreign Intelligence Surveillance Act Amendments Act of 2008.
EPIC’s claim that the FISC order violates its First Amendment-protected advocacy with members of Congress, journalists and others, “seems very similar to what the [Supreme] Court just said was insufficient for standing in Clapper,” Chemerinsky said.
He also found “interesting” that the petition’s claim was not based primarily on a Fourth or Fifth Amendment violation, but instead on a statutory claim. “That might make the court less inclined to take it,” he said.
The Clapper decision was "very much in our mind" as the petition was being drafted, EPIC's Rotenberg said.
"We think we have a couple of key facts that give us the prospect of a better outcome in the Supreme Court," he said, explaining that in Clapper, the actual scope of the surveillance activity was not known. "In the absence of an actual demonstration of activity, there was not sufficient basis to prove standing. In our case, we have the plain text of Judge Vinson's order, and it is the text that provides the basis for our standing."
He also said that much of Clapper involved foreign-intelligence collection. In EPIC's case, “I have never seen a court order as broad as the one issued. That is so far removed from the authority granted that court."
The petition exposes a real problem, Vladeck said: the inability of third parties to challenge decisions of the FISA court. “They want to challenge this order and yet they are not a party to the order,” he said.
EPIC might have been on stronger jurisdictional grounds, he added, had it challenged the order in both the FISA court and the court of review, “and have those courts tell it to go away, which they would.”
Although sympathetic to EPIC’s cause, Vladeck was not sure the Supreme Court’s original jurisdiction was the answer.
The justices may act on EPIC’s petition or request a response from the government.
Last month, the American Civil Liberties Union, also a Verizon customer, filed a lawsuit challenging the phone program in the U.S. District Court for the Southern District of New York. The suit charges that the program violates constitutional rights of free speech, association and privacy.
Contact Marcia Coyle at email@example.com.