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Obama Administration Gets Its Way As Supreme Court Declines NSA Review

Supreme CourtThe Obama administration didn’t want the US Supreme Court to rule on the legality of the federal government’s collection of large numbers of telephone records, and it got its ways Monday when the Supreme Court declined to hear a case pertaining to the National Security Agency’s surveillance efforts.

The collection of so-called metadata or information about communications [1] is at the heart of the NSA’s surveillance.

Without comment, the justices [2] chose not to take the case  — at least not yet — and opted to allow it to work its way through the lower courts.

The US Solicitor General had filed a brief [3] asking the Supreme Court to reject the petition that would required the high court to review a court order [4] that required Verizon to supply metadata about telephone calls to the FBI and the NSA. The court order was issued in April 2013 by Foreign Intelligence Surveillance Court (FISA) Judge Robert Vinson.

Vinson exceeded his authority and violated the privacy rights of Verizon customers by issuing the order, attorneys for the Electronic Privacy Information Center (EPIC) contend. In a response, the Solicitor General claimed that that EPIC petition [5] does not meet the legal requirements for a mandamus petition.

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A mandamus petition is a writ or order in which a higher court commands a lower court to take a specific action. EPIC wants the Supreme Court to order FISA to stop granting so-called production orders that require telecoms such as Verizon to turn metadata over to the NSA and other agencies.

An extraordinary remedy

EPIC was asking “for an extraordinary remedy,” Harvard Law school student Laruen Bateman noted at the Lawfare Blog [7]. “Petitioners must first prove that this is the type of case for which the court would consider granting mandamus relief, then prove that they would likely win on the merits.”

The Solicitor General contended that EPIC’s petition did not meet either of those requirements. EPIC’s attorneys disagreed, saying the requested remedy was necessary.

“Mandamus relief is warranted because the [FISA court] exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly relevant to an investigation,” EPIC said.

Like US Rep. Jim Sensenbrenner (R-Wisconsin) [8] EPIC’s attorneys contend that the NSA and FISA court are violating the Patriot Act by issuing such orders. Sensenbrenner wrote the original Patriot Act and has claimed that the metadata programs violate it. As previously reported by Off The Grid News [9], he has written a proposed law called the USA Freedom Act that would ban the collection of telephony metadata.

Telephone Metadata Allows Government to Track You

“Telephone metadata includes comprehensive routing information,” EPIC noted in its brief. Such information includes:

This information can be used to identify and trace people making telephone calls, EPIC says. In June Edward Snowden leaked documents to various newspapers [10] that showed the NSA has a massive program [11] for the collection of such data. EPIC’s petition for mandamus was prompted by Snowden’s leaks.

The Solicitor General claimed that data from every phone call made in the United States in the past five years is relevant to the investigation terrorism [4], Politico’s Josh Gerstein noted.

One of several legal challenges to surveillance

EPIC’s petition is one of several challenges to surveillance programs making their way through the courts. The petition is the most direct because it demands immediate action from the Supreme Court and asks the court to take specific action to halt some of the efforts.

Other legal actions seeking the courts to stop surveillance include:

[12]