A privacy advocacy group, seeking to keep alive in the Supreme Court its challenge to the federal government’s secret sweeps of electronic and digital communication data, argued on Monday that the privacy of “every person in this country” is at stake in the case. It contended that the government — in this case and in lower court cases — is trying to shield the National Security Agency’s spying operation from any court review.
This new filing sets the stage for the Justices to take their first look soon at the case of In re Electronic Privacy Information Center (docket 13-58), a rather unusual legal protest that is being pursued directly in the Court, with no prior lower court decision on the challenge. The Obama administration earlier this month asked the Court to deny any relief to EPIC, on a variety of grounds, including procedural arguments.
The government brief had argued that EPIC had no legal right to pursue its plea directly in the Supreme Court. And, while it added that EPIC could attempt to sue in a lower court, it added that it could try to head off that, too. EPIC’s reply brief noted that, in fact, Justice Department lawyers had already made a formal argument in a federal court in New York against allowing the American Civil Liberties Union to challenge the warrantless surveillance program.
“The government cannot have it both ways,” EPIC said in its reply brief. Those who have had their telephone or digital communications data swept up by NSA, the group said, must be allowed to pursue challenges either in district courts or directly in the Supreme Court.
Because of the limitations on lower courts’ authority to rule on the NSA program, EPIC asserted, the Supreme Court is “the only court that has appellate jurisdiction” to review orders by the secret Foreign Intelligence Surveillance Court authorizing the government to gather communications data that involves U.S. organizations or citizens.
“The clear implication of the government’s argument,” EPIC’s brief said, “is that the orders of the FISCourt can not be subject” to the commands of any court, including the Supreme Court. “It simply can not be the case that such orders of an inferior court are unreviewable” by the Supreme Court, the document argued.
What EPIC is seeking from the Justices is a direct order to the FISCourt to wipe out its order to the Verizon telephone company to produce wide-ranging records of telephone and data communications, including those of virtually all Americans. It has asked that the FISCourt be prohibited from continuing to issue such orders.
EPIC noted that, since it filed its case directly in the Supreme Court in July, the government itself has disclosed that the FISCourt “has routinely interpreted key provisions of public law in secret opinions and that there has not been a single challenge to these orders” by anyone up to now.
Since EPIC started this case, the former NSA staff aide Edward Snowdon has leaked a number of documents showing the global reach of the NSA spying program — including monitoring the e-mail traffic of some friendly foreign governments’ leaders. The FISCourt itself has released a number of its previously secret orders authorizing NSA data-gathering, as part of an apparent effort to bring at least some of its justifications out in the open.
The form in which EPIC has filed its challenge in the Supreme Court gives the Justices complete discretion about how to handle it, including the authority to simply refuse to take on the case, and even without explaining why it might do that. The EPIC plea, technically, is for “writ of mandamus and prohibition,” or else a writ to review the FISCourt’s Verizon order.
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