BY NICHOLAS ESSER — The public is largely aware of Edward Snowden, a man who is branded a traitor by some and a whistleblower by others. However, the ramifications of his leaking of sensitive National Security Agency (NSA) documents are sill largely unknown.[1] Snowden sent classified documents to various reporters and news agencies around the world so this classified information could be released.[2] This has given new life not only to important foreign policy discussions, but also to internal strife over what exactly the United States government is spying on.[3]
This July, The Electronic Privacy Information Center (EPIC) filed a Petition for a Writ of Mandamus and Prohibition in the United States Supreme Court in which EPIC claimed that the Foreign Intelligence Surveillance Court (FISC) greatly surpassed its given authority by granting the NSA permission to collect phone records in bulk.[4] This is not the first of such briefs, but the first to be filed with the Supreme Court.[5] The Department of Justice (DOJ) has filed its opposition claiming that there is no cause or justification for a writ of mandamus and questioning the Supreme Court’s jurisdiction over the case and claiming no party’s right to privacy was substantially damaged as a result of the collection.[6]
The EPIC brief’s argument is as follows. The Foreign Intelligence Surveillance Act developed the FISC in order to approve electronic collection of foreign intelligence.[7] The FISC may compel an entity, typically a business to compel data, but the FBI must first show “reasonable grounds” to believe that said data is relevant among other necessary cautions.[8] EPIC contends that the FBI’s application to have Verizon turn over “all call detail record” failed to meet these requirements.[9] EPIC claims that The All Writs Act, gives the Supreme Court the authority to issue extraordinary writs in its discretion: “To justify granting any such writ, the petition 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.”[10] EPIC cites Cheney v. U.S. Dist. Court for the Dist. of Columbia and claims the case’s three requirements are satisfied: (1) EPIC cannot obtain relief from any other court or forum, as EPIC cannot seek relief from the FISCor Court of Review nor can another court can grant EPIC the relief it seeks; (2) the FISC order exceeded the scope of the FISC’s jurisdiction under the FISA; and (3) the FISC order creates exceptional circumstances warranting mandamus.[11] Specifically, EPIC believes that the FBI failed to prove that the phone data turned over, including EPIC’s and millions of Americans, is sufficiently relevant. Additionally, because EPIC is simply affected by the order, it cannot seek relief through FISC or the Court of Review, leaving only the Supreme Court to grant relief.
The DOJ counters as follows. Congress enacted the FISA to authorize and regulate certain governmental surveillance of communications; specifically FISA regulated domestically focused electronic surveillance.[12] Additionally, §215 of the 2001 USA PATRIOT Act “replaced FISA’s business-records provision with a broader provision authorizing the FBI to apply to the FISC ‘for an order requiring the production of any tangible things…for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.’”[13] The DOJ claims that EPIC cannot seek a review of a FISC decision, as only the government is granted that privilege under the §1861.[14] Additionally, EPIC has not sufficiently proven that they could not have filed this suit elsewhere, as other similarly situated parties have done.[15] The DOJ also contends that EPIC fails to show that this is an “exceptional circumstance” as required by Cheney and thus the writ of mandamus is not the proper relief to be sought.[16] Finally, the Supreme Court lacks sufficient jurisdiction to issue a writ of certiorari to the FISC.
These briefs are particularly troubling not only for their subject matter, but also their content and ramifications. Does the United States Supreme Court truly lack jurisdiction over a federally created court? What will become of the United States surveillance programs? Will the government be able to collect an increasingly broader amount of data from its citizens or will Constitutional walls hinder it? Whatever the outcome, there will be a significant shift in the paradigm of domestic intelligence gathering.
[1] Abby Ohlheiser, The U.S. Warns Foreign Officials of Another Possible Snowden Leak, (Oct. 24, 2013), http://www.theatlanticwire.com/global/2013/10/us-warns-foreign-officials-another-possible-snowden-leak/70926/
[2] Id.
[3] Brendan Sasso, Administration looks to dodge Supreme Court challenge to NSA program, (Oct. 14, 2013, 5:18 PM), http://thehill.com/blogs/hillicon-valley/technology/328453-administration-looks-to-dodge-supreme-court-challenge-to-nsa-program
[4] Id.
[5] Id.
[6] In re Electronic Privacy Information Center, Opp’n Br.; available at:https://epic.org/privacy/nsa/in-re-epic/13-58-SG-Brief.pdf
[7] In re Electronic Privacy Information Center, Pet’r’s Br. 5, July 8, 2013; available at:https://epic.org/EPIC-FISC-Mandamus-Petition.pdf.
[8] Id. at 6-7; citing 50 U.S.C. § 1861(a)(1) and 50 U.S.C. § 1861(b)(2)(A); available at:https://epic.org/EPIC-FISC-Mandamus-Petition.pdf.
[9] Pet’r’s Br. 12-13, July 8, 2013; available at: https://epic.org/EPIC-FISC-Mandamus-Petition.pdf.
[10] Id. at 12; citing 28 U.S.C. § 1651; available at: https://epic.org/EPIC-FISC-Mandamus-Petition.pdf.
[11] Pet’r’s Br. 14-36, July 8, 2013 (pg. 14-36); available at: https://epic.org/EPIC-FISC-Mandamus-Petition.pdf.
[12] Opp’n Br. 2; citing 50 U.S.C. 1801(f); available at: https://epic.org/privacy/nsa/in-re-epic/13-58-SG-Brief.pdf.
[13] Opp’n Br. 4; citing50 U.S.C. 1861(a)(1); available at: https://epic.org/privacy/nsa/in-re-epic/13-58-SG-Brief.pdf.
[14] Opp’n Br. 16-20; available at: https://epic.org/privacy/nsa/in-re-epic/13-58-SG-Brief.pdf
[15] Id. at 20-23.
[16] Id. at 20-34.
