The U.S. Supreme Court turned back an effort Monday to challenge a ruling by the secret federal surveillance court requiring Verizon to turn over data on millions of Americans to the government. The decision not to hear the unusual motion by privacy advocates forecloses what may have been one of the only avenues for challenging a ruling by the Foreign Intelligence Surveillance Court.
The Electronic Privacy Information Center (EPIC) asked the Supreme Court to hear its challenge without having gone through the lower courts first, on the basis that no other court had jurisdiction to hear its claim, because EPIC was not a party to the FISA court action. Typically, the U.S. Supreme Court will issue what is known as a “writ of mandamus” or “writ of prohibition” in a case that has not yet gone through the lower courts only in extraordinary circumstances. But EPIC argued in its filings that “a judicial order to compel the disclosure by a U.S. telephone company of all telephone records of all U.S. customers” is such an extraordinary circumstance. They also argue that the FISA court exceeded its authority when it ordered Verizon to turn over the phone records on all Americans in a request “untethered to any particular investigation.”
The only parties to FISA court actions are the government, and the subject of a business records request — in this case, Verizon. EPIC argued that it represents the interests of Americans whose data is contained in those records, and that the FISA court has no mechanism for hearing those concerns. The Justice Department argued that EPIC could instead take its claim to a federal district court, even though it has argued in other cases that these federal trial courts are not authorized to hear a FISC challenge, according to EPIC.
Redacted rulings from the secret surveillance court released since the Edward Snowden leaks have revealed that the FISA court does more than approve particular surveillance applications. It has authorized sweeping new programs like phone metadata collection in secret, analyzing case law and setting its own precedent without the benefit of sunlight or an adversarial proceeding.
While the Supreme Court’s ruling deals a blow to challenging the FISA court directly, two other cases that instead challenge National Security Agency data collection are going before federal judges this week.