Having gained no purchase in federal district courts in countering NSA's telephony metadata program, privacy activists are attempting a different strategy: taking the fight directly to the United States Supreme Court.
Back in July, the Electronic Privacy Information Center (EPIC) filed a mandamus-or-certiorari petition with the high court, seeking review of the controversial April 2013 order by FISC Judge Robert Vinson that compelled a Verizon subsidiary to release to the government, pursuant to Section 215 of the PATRIOT Act, telephony metadata for subscribers' domestic calls. Recently, the Solicitor General's office responded to the petition, stating that the petition does not meet the "stringent requirements for mandamus relief."
EPIC here is asking for an extraordinary remedy: petitioners must prove first 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.
To that end, EPIC contends that the structure of 50 U.S.C. §1861 gives it no other option for legal relief. Only the Supreme Court, the FISC, and the FISA Court of Review may consider petitions. The FISC and the Court of Review only have statutory jurisdiction to review business record orders upon petition from one of two parties: the affected recipient or the government. So because EPIC is not itself the recipient of a § 1861 order---merely the subject (at least theoretically) of such an order---it cannot seek relief through FISC or the Court of Review. That leaves, according to the petitioners, only one option: the Supreme Court.
As for the merits, EPIC claimed that Judge Vinson's order exceeded the FISC's legal authority under §1861 because the majority of the records run afoul of the relevance requirement:
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.
. . .
"Simply acquiring a haystack to go looking for a needle is a threat assessment. An authorized investigation would be specifically targeted on an identified needle based on a factual predicate."
The Solicitor General's response, by contrast, construes the §1861 prohibition on non-party, non-recipient appeals as "weigh[ing] heavily against mandamus relief." First, EPIC need not seek relief directly from the Supreme Court because it could have filed the suit in a district court, as other similarly-situated petitioners have done. While it may still be subject to the government's threshold arguments in a district court, the government argues, substantive defenses do not render the Supreme Court the only possible adjudicative forum.
Second, the Solicitor General argues that EPIC's petition does not present an "exceptional circumstance" worthy of mandamus relief. Congress was explicit in its intent, and Judge Vinson's reading of §1861 was well within the ambit of reasonability, the government contends. In other words, it is difficult to make the claim that Judge Vinson so egregiously overstepped the FISC's jurisdiction because the PATRIOT Act gives the intelligence agencies with the power to make broad requests. The Solicitor General raises the specter of adverse national security consequences if EPIC's reading prevailed: "Petitioner’s view that any person to whom a telecommunications provider’s business record pertains may challenge the order as inconsistent with Section 1861 would have deleterious consequences for the functioning of foreign-intelligence surveillance by greatly expanding and complicating judicial proceedings."
Several amici have been filed in this case, including one from James Pfander and Lawfare's own Steve Vladeck, which invokes a "long line of decisions in which appellate courts have issued writs of mandamus to lower courts to protect the rights of parties who were not formally part of the proceedings below---and who therefore had no basis for pursuing their own statutory appeal." The Solicitor General directly responds to this contention, arguing that to allow EPIC to intervene "would defeat the evident purpose behind Section 1861's express limitation on the persons who can appeal to the FISA Court of Review."
For further reading, EPIC has compiled relevant briefs and FISC documents in one convenient location.
UPDATE: Over at Just Security, Marty Lederman has posted his analysis of the government's brief. It opens:
On Friday the government filed its brief in opposition to the Electronic Privacy Information Center’s mandamus petition to the Supreme Court, No. 13-58, in which EPIC is challenging the legality of the FISC’s “bulk telephony metadata” orders under section 215 of the PATRIOT Act, 50 U.S.C. 1861.
Jurisdictional/Preclusion Arguments to Dismiss the Petition
The majority of the government’s brief is devoted to arguing that EPIC has not satisfied the traditional criteria for the extraordinary relief of mandamus directly from the Supreme Court.
The government’s broadest argument in this respect is that the FISA statute prohibits anyone other than the recipient of the order itself (here, Verizon) from challenging the statutory basis for the order. (EPIC is only challenging the statutory authority for the order—it has not raised any constitutional claim.) The government makes a similar “preclusion” argument in support of its motion to dismiss the ACLU’s statutory claim in its lawsuit filed in the Southern District of New York. If that argument were correct (but see the ACLU’s response at pages 18-26 of its brief), then the statutory claims in both lawsuits–and in other such cases, including the First Unitarian Church case in the Northern District of California–would be dismissed.
The Supreme Court does not need to reach that broad argument in the EPIC case, however, because the government has a much stronger, narrower argument—namely, that if FISA does not categorically preclude a customer from ever suing to challenge the statutory authority for a 215 order to a telecom provider, then EPIC could sue the NSA in district court, as the ACLU and First Unitarian Church have done; and if EPIC could sue in district court, then mandamus relief directly in the Supreme Court would be inappropriate, since the general rule is that such an extraordinary remedy is unavailable unless (at a minimum) the party seeking it does not have other adequate means to attain a remedy that would provide the relief it seeks.