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.