Why the Snowden Leak(s) Should Result in a Supreme Court Review of the FISA Court’s Verizon Order

One of the more troubling documents leaked by former NSA contract employee Edward Snowden was the top secret order signed by Foreign Surveillance Intelligence Act (FISA) court Judge Roger Vinson directing Verizon to turn over to the FBI and NSA “all call detail records or “telephony metadata” created by Verizon for communications . . . wholly within the United States, including local telephone calls.” Judge Vinson’s order became effective on April 23, 2013, and remained so until July 19, 2013, but apparently such orders are regularly renewed.

The order is breathtakingly broad, and it reveals that the federal government is clearly sweeping up information about BILLIONS of telephone calls in the United States, and based on the information Snowden has released, it is not likely that Verizon is the only telephone company that is subject to such an order.  It should also be noted that Judge Vinson’s order, as well as those like it, is so secret and guarded that investigators are still not absolutely sure how Snowden obtained it.

The debate about what Snowden released has been of less interest in the news than his efforts to escape apprehension and extradition back to the United States, which has charged him with espionage and stealing government information.  The public debate is now over whether he should or should not be prosecuted, with widespread public apathy about another key issue: whether this new information calls for reining in NSA.

But not everyone is apathetic or unclear as to his or her position, for Snowden’s information has energized those who are committed to protecting our privacy, and they now are using this new information to head to various courts to try to place some controls on what has been NSA surveillance gone wild.  An impressive array of lawsuits has been filed, nicely summarized by University of Pittsburgh’s Jurist.

It is the Electronic Privacy Information Center (EPIC) petition to the U.S. Supreme Court that caught my attention.

The Inherent Difficulty for EPIC’s Emergency Petition to the Supreme Court

When I received a tweet a few days ago from a follower, Bert Gold (@BertGold4), asking @JohnWDean “well, whaddya think of this? nytimes.com/2013/07/08/us/,” my reaction after scanning the article about EPIC’s action, under the headline “Privacy Group to Ask Supreme Court to Stop N.S.A.’s Phone Spying Program,” was that the Court would dodge it.  So I responded as follows: “Be very surprised if Court will claim jurisdiction.” Then, when I had more time, I read the 83-page petition filed by EPIC, which focuses on Judge Vinson’s order to Verizon, and I began to wonder.  This is not a run-of-the-mill request.

The EPIC petition is based on the All Writs Act, a broad and overused statute.  Several of my Justia columnist colleagues have far more expertise with this statute and the High Court than yours truly, and I am hopeful that one or more will address this issue.  Prognostication of what actions the U.S. Supreme Court will embark on is a very tricky business, but I am hopeful that, at minimum, at least one Justice will call for a response to the EPIC petition, because such an expression of concern appears to increase the odds of the Court’s taking the case.

A petition for a writ of mandamus to compel action by a lower court judge is never favored, and as the Supreme Court’s Rule 20 makes clear, the Justices only exercise discretion with these extraordinary writs “sparingly.” Or as the Supreme Court once acknowledged, borrowing a refrain from Gilbert & Sullivan to explain the chances of such a writ’s issuing: “What never? Well, hardly ever!”

The question now will be if this is one of those extraordinary circumstances when the Justices will act. We must all hope so.

The Context of the EPIC Petition

Congress created the FISA court system in 1978 in direct response to concerns about Richard Nixon’s abuses of power, as well as abuses by a few predecessors, with much of the relevant information gathered in the Church Committee Report.  Congress sought both Congressional and Judicial oversight of Executive Branch intelligence collection, both foreign and domestic.  So it established procedures whereby necessary intelligence could be gathered by law enforcement, while still protecting the privacy of American citizens.

Then came the 9/11 terrorists attacks, ushering in our ongoing “war on terror.”  To fight terrorists, the Bush/Cheney Administration wanted to show that it was moving aggressively, so it pulled from the Department of Justice filing cabinets a number of old proposals that Congress had rejected, provisions that would make it easier for law enforcement to uncover criminal behavior at the expense of privacy. These old proposals were refashioned into the infamous “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act”—better know by its acronym USA PATRIOT Act, and now colloquially called the Patriot Act.

The Patriot Act, with its later amendments, has effected an across-the-board weakening of electronic communications privacy laws and procedures, including those in the FISA courts, a development that most Americans seemed to welcome.  Few members of Congress even bothered to read the law that they passed, and fewer members of the public have a clue about the privacy that they have relinquished.

Nonetheless, there have been a few voices, which have come from both the left and the libertarian right, warning that as Americans, we are foolishly giving away our privacy rights. Americans have been, but do not widely appreciate, that the “I have nothing to hide so I don’t care if I’m under surveillance” contention is the thinking of a fool, and once our privacy is gone it will be impossible ever to get it back.  In fact, repeal of the Patriot Act now would return little privacy to Americans, because Congress has totally failed, nor has it even tried, to keep the scope of the privacy laws anywhere close to the rapidly progressing advances in the digital world.

For example, every time a person searches the Internet, sends an email, or uses social media he or she leaves tracks that can tell others who might be interested pretty much everything about the person’s life without accessing the contents of his or her communications.  When you use your cell phone, not only do you leave a trail of whom you called and when, but with GPS and other cell-tower triangulation functions that are now common for all cell phones, you also reveal your location.  The law protects none of this information.

Indeed, under the law, this information is considered like the address on an envelope or a postcard. In fact, it is much more.  In a digital word, such purported “envelope” data can reveal more than the contents inside the envelope may.  Sadly, neither Congress nor the federal courts have acknowledged this obvious reality. This, however, is not the issue that the EPIC petition has raised, and this reality is only indirectly in play when it comes to the protection that they seek.

The EPIC Petition Raises the Question Whether NSA Has Exceeded Its Authority    

The EPIC petition argues that the FISA court had exceeded its statutory authority, for the law is directed at “foreign” intelligence and only intelligence “relevant” to investigations of such foreign activities.  This law was intended to largely exclude domestic intelligence gathering.  Yet Judge Vinson’s order is clearly directed at Verizon’s domestic business.  For this reason, the EPIC petition states that it is “simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation.” (Emphasis in the petition.)

EPIC is a Verizon customer.  Because much of its work, as a privacy advocacy group, involves litigation, and it is currently in litigation with both the FBI and NSA, the very entities with whom they are litigating are intercepting their communications, including information protected by attorney-client privilege.  In addition, the EPIC petition raises the fact that EPIC and its members are being stripped of their privacy rights, yet they have no remedy through the FISA courts.

The FISA courts—the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review—have limited jurisdiction to hear petitions filed by the government or those who have been ordered by the FISA courts to comply with the government’s requests for information.  Neither of those parties can reveal what they are doing with the FISA courts.  Obviously, neither the FBI, which requested all Verizon’s call records, nor Verizon itself, which has millions of customers about which it has little knowledge, represent the interests of EPIC.  This is why EPIC has filed its emergency petition, since Congress has provided no remedy in the FISA law in a situation where it appears on its face that the FISA court has exceeded its authority.

The EPIC petition points out that the leaked copy of Judge Vinson’s order no longer renders it a matter of speculation whose phone records might be involved: Among them are all Verizon domestic customers, which includes not only EPIC but members of Congress and federal judges, including Supreme Court Justices and employees.  And this fact, in turn, raises questions of separations of powers for the Executive Branch now has its nose in the most private of business as it now can know who is talking with whom, and when, in the other branches.

There is no question that one (and no doubt all) of the High Court’s Justices understands how Judge Vinson’s order makes clear that the intimate details about the daily lives of millions of Americans are being openly gathered, yet as Justice Sotomayor has noted and the EPIC petition has cited: “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.” This leaked top-secret ruling suggests that the FISA court has gone way beyond what was contemplated by Congress.

Given the fact that Congress has become so dysfunctional, and no doubt incapable of any corrective action whatsoever, we must all hope that the Supreme Court will take action on the EPIC petition.  While I have no doubt that the Justices can, if they so choose, find myriad excuses not to take the case, it would certainly be reassuring if—unlike most Americans—the Justices do not give away their own privacy without a whimper, since unlike others, they can do something about it.