EPIC Files Petition in SCOTUS Regarding FISC Section 215 Order

By Wells Bennett
Monday, July 8, 2013, 7:15 PM

The Electronic Privacy Information Center ("EPIC"), an advocacy and litigation group, today petitioned for a writ of mandamus or prohibition, or a writ of certiorari, in the Supreme Court.  The filing's subject is an April order, issued by the Foreign Intelligence Surveillance Court ("FISC") pursuant to Section 215 of the Patriot Act, and leaked to media, seemingly, by Edward Snowden.  Readers likely recall the gist of the once secret ruling: it compelled a Verizon subsidiary, Verizon Business Services, to turn over to the government telephony metadata for all of its subscribers' domestic telephone calls.

EPIC, a Verizon customer, now attacks the FISC's order as unlawful and asks the Supreme Court to order the FISC to respect statutory limits on its authority.  From the petition's introduction:

EPIC seeks a writ of mandamus to review the order  of Judge Roger Vinson, United States Foreign Intelligence  Surveillance  Court (“FISC”)  requiring Verizon Business Network Services (“Verizon”) to produce to the National Security Agency (“NSA”) call detail records, or “telephony metadata,” for all calls wholly within the United States. Mandamus relief is warranted because the FISC exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.  EPIC is a Verizon customer subject to the order. Because of the structure of the Foreign Intelligence Surveillance Act ("FISA"), no other court  may grant the relief that EPIC seeks.
On April 25, 2013, the FISC compelled the ongoing  disclosure of  all call detail records in the possession of  a  U.S. telecommunications firm for analysis by the National Security Agency. The FISC exceeded its statutory authority  when it issued this order. To compel production of “tangible things,” the FISA  requires the items sought be  “relevant” to an authorized investigation. 50 U.S.C. § 1861(b)(2)(A). It is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation. Such an interpretation  of Section 1861 would render meaningless the qualifying phrases contained in the provision and eviscerate the purpose of the Act. 
The Verizon Order  approved by the FISC implicates the privacy interests of all Verizon customers, including petitioner EPIC, a non-profit organization that engages in protected attorney-client communications as it pursues  litigation to safeguard privacy. However, the FISA does not allow Verizon customers, including, EPIC to challenge the order or seek review of the order before the FISC or Foreign Intelligence Surveillance Court of Review (“Court of Review”).  See  50 U.S.C.  § 1861(f);  id.  §§ 1803(a)-(b); Foreign Intelligence Surveillance Ct. R. 33. Consequently, EPIC can only obtain relief with a writ of mandamus from this Court. Mandamus is an extraordinary remedy, but the Verizon Order carries extraordinary ramifications.
The  records acquired by the NSA under this Order  detail the daily  activities,  interactions, personal and business relationships, religious and political  affiliations, and other intimate details of millions of Americans. “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained  power to assemble data that reveal
private aspects of identity is susceptible to abuse.” United  States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring). As Justice Breyer has recently noted, “the Government has the capacity to conduct electronic surveillance of the kind at issue.” Clapper v. Amnesty Int’l, USA, 133 S.Ct. 1138, 1158-59 (2013) (citing, inter alia, Priest & Arkin, A Hidden World, Growing Beyond Control, Wash. Post, July 19, 2010, at A1 (reporting that the  NSA collects 1.7 billion e-mails, telephone calls and other types of  communications daily)). And because the NSA sweeps up judicial and Congressional communications, it inappropriately arrogates exceptional power to the Executive Branch.