CAN YOU HEAR ME NOW?
Do you own a telephone? Chances are if you are like any other freedom-loving American, excluding children and telegraph enthusiasts, you do. This is important because in the years since 9/11 the Foreign Intelligence Surveillance Court (FISC) has been granting secret orders mandating that Verizon (and presumably other phone companies) turn over domestic phone records and other internet communications to the National Security Agency (NSA) as part of their comprehensive spying program. Although most Americans are acquainted with the vague concept of government surveillance, the nature and scope of the federal government’s efforts to combat the threat of domestic terrorism was largely unknown to the public.
Enter former NSA analyst, and infamous whistleblower, Edward Snowden. In spring 2013, Snowden leaked the details of several top-secret U.S. mass surveillance programs. Among the leaked information was a FISC judge’s secret order that gave the NSA legal permission to “scan the details of calls made by customers of Verizon Business Network Services.”[i] The disclosure of this formerly secret information prompted the Electronic Privacy Information Center (EPIC), a digital privacy advocacy group, to file an emergency petition with the Supreme Court challenging the NSA’s telephone record surveillance program.[ii] Electing to bypass the lower federal courts, EPIC filed their petition directly with the Supreme Court under a procedural rule that permits extraordinary filings when “exceptional circumstances warrant the exercise of the Court’s discretionary powers.”[iii] EPIC contends that the privacy implications of the NSA’s comprehensive phone surveillance program qualify as an “exceptional circumstance” under the rule, requiring the Court’s direct intervention. However, parties who utilize this unusual procedure to file their cases directly with the Court are rarely successful. In fact, the very language of the rule itself states that the power to grant such pleas should be “sparingly exercised.”[iv]
EPIC’s petition raises two key issues: first, whether the FIS Court went beyond powers granted by Congress in ordering Verizon to disclose its records for all telephone communications within the United States, to the NSA, and, second, whether the Court will vacate the secret court’s order or provide other “appropriate relief.”[v] The statute under which the phone surveillance program is premised, 50 U.S.C. § 1861, requires “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation…to…protect against international terrorism.”[vi] The government argues that the entirety of Verizon’s phone record database is relevant to its counterterrorism efforts. EPIC on the other hand is of the position that it is simply not possible that every phone record in the possession of Verizon can be relevant to an authorized investigation. To conclude otherwise would render the qualifying language of the law useless, and would contravene the intent of Congress.
Previous attempts to challenge the legality of NSA surveillance programs in federal court have been marked by failure, with most suits being dismissed for a lack of standing. Most recently, in Clapper v. Amnesty International, the Court dismissed a similar lawsuit because the complainants involved could not show that they had been, or might in the future be, monitored by the program.[vii] However, in light of the recent disclosures perpetrated by Snowden, specifically, the secret FISC order naming Verizon customers specifically as the target of the program, new challengers feel they have a unique opportunity to prevail on the issue of standing.
Whatever your feelings are about the virtues of government surveillance, it is clear this case could significantly implicate our constitutional rights under the First and Fourth Amendments. As for my view on the matter; I think Benjamin Franklin had it right when he said, “those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”[viii]
[i] Lyle Denniston, Challenge to global phone taps (FURTHER UPDATED), SCOTUSblog (Jul. 8, 2013, 12:04 PM), http://www.scotusblog.com/2013/07/challenge-to-global-phone-taps/
[ii] Benjamin Minegar, Federal judge allows NSA surveillance suit to continue, Jurist (Jul. 9, 2013, 6:07 PM), http://jurist.org/paperchase/2013/07/federal-judge-allows-nsa-surveillance-suit-to-continue.php
[iii] Denniston, supra note 1.
[vii] Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013).