Supreme Court Declines Challenge to NSA on Verizon Records

Daily News Article   —   Posted on November 19, 2013

image1161(by Ariane de Vogue, ABC News) – The Supreme Court [on Monday] rejected a request to review whether a secret court exceeded its authority when it ordered Verizon to disclose records to the National Security Agency (NSA) for telephone communications.

The Electronic Privacy Information Center (EPIC), a public-interest group dedicated to privacy concerns, had asked the court to overturn an order from the Foreign Intelligence Surveillance Court compelling Verizon to produce customer telephone records.

[EPIC argued that overturning the FISA order] was warranted because the FISA court “exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.”

Its lawyers say the records acquired by the NSA “detail the daily activities, interactions, personal and business relationships, religious and political affiliations, and other intimate details of millions of Americans.”

The Obama administration argued against the Supreme Court’s stepping in.

Only the government or the recipient of an order can seek review of an order, U.S. Solicitor General Donald B. Verrilli Jr. said in court papers. Verrilli argued that even if the order could be challenged by the privacy center, “the proper course would be to file suit in a federal district court.”

The FISA court is composed of district court judges appointed by the chief justice [of the Supreme Court].

As is usually the custom, the Supreme Court did not explain its reasoning, but simply issued a one sentence denial in its order list.

Stephen I. Vladeck, a law professor at American University Washington College of Law, filed a brief in support of the Electronic Privacy Information Center in this case. But he says that even though the Supreme Court declined to step in at this juncture, there are other cases in the pipeline.

“I think the story is the extent to which there are other challenges to the metadata program pending in the lower courts,” Vladeck said. “Although a denial may appear to sanction the government’s conduct, such a respite will be temporary at best, given the challenges to metadata collection pending in the lower courts, including the ACLU’s lawsuit in federal district court in Manhattan.”

Reprinted here for educational purposes only. May not be reproduced on other websites without permission from ABC News. Visit the website at abcnews.com.


Questions

NOTE to students: Before answering the questions, read "Background" below.

1. What is EPIC?

2. a) What appeal did EPIC make to the U.S. Supreme Court that the Court rejected on Monday?
b) What argument did EPIC use in its appeal to the Supreme Court?

3. How did the Obama Administration defend the FISA court's authority in this case?

4. Why isn't the law professor who filed a brief in support of EPIC not concerned that the Supreme Court declined to hear the case?

5. What is the purpose of the FISA court?

6. Only cases involving federal or Constitutional law are brought to the Supreme Court. Do you think EPIC's case is a constitutional issue that the Supreme Court should have heard, or is President Obama's U.S. Solicitor General Donald B. Verrilli Jr. right in arguing that even if the order could be challenged by EPIC, “the proper course would be to file suit in a federal district court.” Explain your answer.


Background

The Foreign Intelligence Surveillance Act of 1978 (FISA) is a United States law which prescribes procedures for the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” and “agents of foreign powers” (which may include American citizens and permanent residents suspected of espionage or terrorism).  The Act was amended in 2001 by the USA PATRIOT Act, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government.  The law has been repeatedly amended since the September 11 attacks. (from wikipedia)

Foreign Intelligence Surveillance Court (FISC):

The United States Foreign Intelligence Surveillance Court (FISC, also called the FISA Court) is a U.S. federal court…enacted October 25, 1978. It was established by the Foreign Intelligence Surveillance Act of 1978 (FISA).  

FISA enabled the FISC to oversee requests for surveillance warrants by federal police agencies (primarily the F.B.I.) against suspected foreign intelligence agents inside the U.S. The court is located within the Department of Justice headquarters building. The court is staffed by eleven judges appointed by the Chief Justice of the United States to serve seven-year terms. The court hears evidence presented solely by the Department of Justice. There is no provision for a release of information regarding such hearings, or for the record of information actually collected. (from wikipedia)

  • History of the NSA surveillance program:

    The NSA started setting up Internet intercepts well before 2001, former intelligence officials say. Run by NSA’s secretive Special Services Office, these types of programs were at first designed to intercept communications overseas through arrangements with foreign Internet providers, the former officials say. NSA still has such arrangements in many countries, particularly in the Middle East and Europe, the former officials say.

    Within NSA, former officials say, intelligence officers joked that the Blarney intercept program with AT&T was named in homage to the NSA program Shamrock, which intercepted telegraphic messages into and out of the U.S. and was an inspiration for the 1978 Foreign Intelligence Surveillance Act, which created the secret national-security court and placed intelligence activities under its supervision.

    Blarney was in use before the 2001 terror attacks, operating at or near key fiber-optic landing points in the U.S. to capture foreign communications coming in and out of the country. One example is an AT&T facility in San Francisco that was revealed in 2006 during the debate over warrantless wiretapping. A similar facility was built at an AT&T site in New Jersey, former officials say.

    After the 2001 attacks, a former official says, these intercept systems were expanded to include key Internet networks within the U.S. through partnerships with U.S. Internet backbone providers. Amid fears of terrorist “sleeper cells” inside the U.S., the government under President George W. Bush also began redefining how much domestic data it could collect.

    For the 2002 Winter Olympics in Salt Lake City, officials say, the Federal Bureau of Investigation and NSA arranged with Qwest Communications International Inc. to use intercept equipment for a period of less than six months around the time of the event. It monitored the content of all email and text communications in the Salt Lake City area.

    At that point, the systems fed into the Bush administration’s program of warrantless wiretapping, which circumvented the surveillance court on the authority of the president’s power as commander in chief.  The Bush administration came under criticism from lawmakers and civil libertarians for sidestepping court supervision. (from an article at wsj.com)

  • What exactly is the Foreign Intelligence Surveillance Court (FISA)?

    More than a generation ago, Congress created the court as a guard against surveillance abuses.

    Until the late 1970s, presidents had “claimed an inherent constitutional authority to conduct warrantless electronic surveillances for non-criminal, national security purposes.”

    But post-Watergate outrage over domestic spying scandals - when it emerged that bugging devices had been used by prior administrations to spy on a congressman, legislative staffers, civil rights leaders and other U.S. citizens in the name of national security - prompted Congress to set some ground rules.

    So in 1978, it passed the Foreign Intelligence Surveillance Act, signed into law by then-President Jimmy Carter.

    The statute spelled out the circumstances under which the government could eavesdrop for the purpose of gathering foreign intelligence. (Congress has loosened the standard since 9/11.) It also created the U.S. Foreign Intelligence Surveillance Court to review applications for surveillance, as well as a special three-member appeals court to review decisions.

    The court is now composed of 11 U.S. district court judges selected by the Chief Justice of the United States, who also picks one of them to be the presiding judge. The judges serve staggered terms of up to seven years. (from wsj.com)