[Infowarrior] - SCOTUS asked to halt NSA phone surveillance

[Richard Forno]

Supreme Court asked to halt NSA phone surveillance

Privacy group can't petition secret court, so it goes straight to Supreme Court.

by Jon Brodkin - July 8 2013, 1:15pm EDT

http://arstechnica.com/tech-policy/2013/07/supreme-court-asked-to-halt-nsa-phone-surveillance/

The Electronic Privacy Information Center (EPIC) today filed an emergency petition with the Supreme Court to stop the National Security Agency (NSA) from collecting the telephone records of millions of Americans.

The petition (PDF) asks the Supreme Court to vacate the Foreign Intelligence Surveillance Court (FISC) ruling that "ordered Verizon to disclose records to the National Security Agency for all telephone communications 'wholly within the United States, including local telephone calls.'" The order does not permit the NSA to listen to phone calls, but it does allow the agency to gather metadata such as the phone numbers of conversation participants, length of calls, time of conversations, location data, telephone calling card numbers, and unique phone identifiers.

EPIC explains in the petition that it is appealing directly to the Supreme Court because it cannot appeal to the secretive FISC—and no other court has the power to vacate a FISC order. "The plain terms of the Foreign Intelligence Surveillance Act (FISA) and the rules of the FISC bar EPIC from seeking relief before the FISC or Court of Review," EPIC wrote. "The FISC may only review business record orders upon petition from the recipient or the Government."

While the ruling that EPIC targets in its Supreme Court petition is from April 25 of this year, FISC rulings permitting broader collection of Americans' data go back years. As the Wall Street Journal reported yesterday, the NSA was able to gather phone data on millions of Americans because of classified FISC rulings in which the court redefined the word "relevant" in the context of surveillance to permit gathering of data on people even when they are not suspected of a crime.

"This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases," the Journal reported. "In classified orders starting in the mid-2000s, the court accepted that 'relevant' could be broadened to  permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling."

EPIC's Supreme Court petition argues that "[i]t is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation." The telephone surveillance order exceeds the scope of FISC's jurisdiction under the FISA law, the petition argues. "[T]he statute requires that production orders be supported by 'reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation,'" EPIC wrote. "It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation."

EPIC is asking the Supreme Court for a "writ of mandamus," which the Cornell Law school notes is "an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion."

EPIC's petition notes that telephone metadata "can be directly linked to each user’s identity and reveal their contacts, clients, associates, and even the physical location." EPIC itself is a Verizon customer and said its attorneys conduct "privileged and confidential communications" with government officials, members of Congress, and journalists. Because of EPIC lawsuits filed against the NSA, FBI, and other government bodies, "EPIC is in active litigation against the very agencies tracking EPIC’s privileged attorney-client communications," the group wrote.

Although the NSA collects data on the communications of all Verizon users (and presumably those of other companies as well), the database can only be queried "when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization," US Director of National Intelligence James Clapper wrote last month.

"The collection is broad in scope because more narrow collection would limit our ability to screen for and identify terrorism-related communications," Clapper wrote. "Acquiring this information allows us to make connections related to terrorist activities over time. The FISA Court specifically approved this method of collection as lawful, subject to stringent restrictions."

The EPIC petition is one of several challenges to the NSA's data collection. The American Civil Liberties Union (ACLU) last month filed a lawsuit seeking publication of FISC decisions on surveillance powers. In response, the Obama Administration defended the secrecy of the rulings.

A week ago, 26 US senators demanded "public answers" on the extent of the NSA spy program. And a legal challenge similar to EPIC's is unfolding in the UK, where Privacy International said it is trying to stop the UK government's "indiscriminate interception and storing of huge amounts of data via tapping undersea fibre optic cables."


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