Tag Archives | NSA

Supreme Court won’t hear challenge to NSA surveillance

The Supreme Court Friday declined to consider the legality of the National Security Agency’s collection of Verizon customers’ phone call records.

The Court declined without comment to decide whether the Foreign Intelligence Surveillance Court exceeded its jurisdiction when it issued orders to Verizon to turn over the records of all phone calls made wholly within the United States or between the United States and abroad.

The challenge came from the Electronic Privacy Information Center, which asked the Court for a “writ of mandamus,” a process by which the Supreme Court directly reviews a case that has not been appealed through lower courts. A writ of mandamus is only proper when the plaintiff has no other adequate means of obtaining relief. In this case, EPIC argued that it could not pursue relief in lower district and appellate courts because those courts have no jurisdiction over the FISC, and that only the government or the recipient of a FISC order can appeal that order to the Foreign Intelligence Surveillance Court of Review.

In its response, the Justice Department argued that EPIC must file its challenge in federal district court as other plaintiffs have done. However, the government didn’t concede that EPIC would be a proper party to challenge the FISC order in district court — only that EPIC could not seek relief from the Supreme Court that it could not obtain in district court. SCOTUSblog reported that “the government has attempted to thwart court review of challenges…already filed [in lower court].”

The Justice Department also argued that EPIC did not show that the NSA had reviewed phone records relating to EPIC’s members, “particularly given the stringent, FISC-imposed restrictions that limit access to the database to counterterrorism purposes.” No court has ruled on this issue, and it could come up again in the district court challenges to the NSA’s phone records collection program.

A federal court has yet to rule on the legality of the NSA’s domestic surveillance program since a series of leaks in June revealed that the NSA had been collecting Americans’ phone call records for at least seven years.

Natasha Duarte is a 2L at the University of North Carolina School of Law and a first-year master’s student at the UNC School of Journalism and Mass Communication.


Unintended Targets: The NSA’s bulk email collection and Obama’s use of the word “targeting”

A Foreign Intelligence Surveillance Court opinion released yesterday shed more light on how the National Security Agency collects Americans’ email data, highlighting the disconnect between the NSA’s collection practices and the Obama Administration’s characterization of email surveillance under the PRISM program.

The FISA Court opinion held that methods used by the NSA from 2007 to 2011 of collecting email data — including the content of email subject lines, senders, and times of transmission — violated the Fourth Amendment and Federal statutes. While the NSA can collect emails involving foreign senders and recipients under the Foreign Intelligence Surveillance Act, it cannot collect purely domestic emails.

Until 2011, the NSA’s collection of emails involved collecting “bundles” of emails from individuals’ inboxes, failing to separate the purely domestic emails bundled with the “targeted” emails involving non-U.S. persons. Basically, the NSA was collecting screenshots of individuals’ inboxes when only one of many emails in the screenshot was the subject of the investigation.

Since details of the PRISM email surveillance program were leaked in June, President Obama has repeatedly told Americans not to worry because “the NSA cannot target your emails.” While the President has never clarified what “targeting” means, this opinion makes it clear that, at least before 2011, the fact that Americans’ emails were not “targeted” doesn’t mean they were not collected.

Several proposed amendments to key sections of the Foreign Intelligence Surveillance Act, including a bill that failed in a close House vote last month, would prohibit the “bulk” collection of data. These amendments would require the NSA to show that someone is the subject of an investigation before it collects that person’s data.

Natasha Duarte is a 2L at the University of North Carolina School of Law and a first-year master’s student at the UNC School of Journalism and Mass Communication.