[Infowarrior] - Gov’t moves to keep NSA surveillance lawsuit away from Supreme Court

[Richard Forno]

Gov’t moves to keep NSA surveillance lawsuit away from Supreme Court

Gov't doesn't want critics of NSA spying to take their case to the high court.

by Joe Mullin - Oct 14 2013, 9:00pm EDT

http://arstechnica.com/tech-policy/2013/10/govt-moves-to-keep-nsa-surveillance-lawsuit-away-from-supreme-court/

Not long after widespread NSA phone surveillance was revealed by a series of leaks this summer, the Electronic Privacy Information Center, a privacy-oriented nonprofit, tried a bold and novel legal tactic: it appealed straight to the Supreme Court, asking for an immediate shutdown of the program.

The high court was the only place to turn, wrote EPIC, because it can't go to Foreign Intelligence Surveillance Court (FISC), which actually authorized the orders. EPIC's argument was straightforward: the FISC could only authorize NSA spying on foreigners, not Americans.

Now Solicitor General Donald Verrilli, who represents the Obama Administration at the Supreme Court, has advised the justices not to take the case. It's not a surprising move. Just the publicity of a Supreme Court debate over NSA spying would be a giant headache for the administration; not to mention, the government obviously doesn't want the program shut down.

In the brief, published on EPIC's website today, the government argues that there's no justification for an immediate move to the Supreme Court. First of all, only the government itself or the actual recipient of an order (Verizon, in this case) can ask for a FISC court order to be reviewed, writes the solicitor general.

And even if the Supreme Court should disagree with the government's view that EPIC can't challenge the telephone data program, they should at least force the group to file in district court and not allow it to hop straight to the Supreme Court. "That is the ordinary means to challenge assertedly unlawful government action, and petitioner has identified no special circumstances here that require its statutory challenge to begin in this court," writes the government.

The brief also includes some description of the "Telephony Records Program," which builds a database of calls that "may be accessed only for counterterrorism purposes," the solicitor general writes. The brief goes on to describe how queries are "limited to records of communications within three 'hops' from the seed."

"As of October 1, 2013, 14 different judges of the FISC, on 34 separate occasions, have approved... orders directing telecommunications service providers to produce records." EPIC wasn't "subject to, named in, or served with that [leaked Verizon] order."


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