In re Electronic Privacy Information Center

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In Re Electronic Privacy Information Center
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Decided November 18, 2013
Full case nameIn Re Electronic Privacy Information Center
Holding
Petition denied
Court membership
Chief Justice
John Roberts
Associate Justices
Antonin Scalia  · Anthony Kennedy
Clarence Thomas  · Ruth Bader Ginsburg
Stephen Breyer  · Samuel Alito
Sonia Sotomayor  · Elena Kagan

In Re Electronic Privacy Information Center, 134 S.Ct. 638 (2013), was a direct petition to the Supreme Court of the United States regarding the National Security Agency's (NSA) telephony metadata collection program. On July 8, 2013, the Electronic Privacy Information Center (EPIC) filed a petition for a writ of mandamus and prohibition, or a writ of certiorari, to vacate an order of the Foreign Intelligence Surveillance Court (FISC) in which the court compelled Verizon to produce telephony metadata records from all of its subscribers' calls and deliver those records to the NSA. On November 18, 2013, the Supreme Court denied EPIC's petition.

Contents

Background

The Foreign Intelligence Surveillance Act (FISA) is a United States federal law which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens and permanent residents suspected of espionage or terrorism). [1] The Act created the FISC to oversee the FISA requests. The FISC is a secret court populated with judges appointed by the Chief Justice of the Supreme Court of the United States. The secret nature of the court means that all proceedings are behind closed doors and all decisions are classified. Concerns about the government's surveillance efforts and its use of the Patriot Act were present for years before the case. Two members of the Senate Intelligence Committee, Senator Ron Wyden (D-OR) and Senator Mark Udall (D-CO), had been warning the public about this issue, although they were unable to go into detail because of the confidential nature of the information. In 2012, they wrote an open letter to Attorney General Eric Holder about this issue, saying, "We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted Section 215 of the Patriot Act." [2] [3]

On June 6, 2013, The Washington Post and The Guardian published a classified FISC order leaked by Edward Snowden. [4] The leaked order compelled Verizon to produce telephony metadata records on an ongoing daily basis to the NSA. This disclosure of the bulk telephony metadata collection initiated public debate about the constitutionality of NSA's surveillance program and brought forth the question of whether the FISC court had exceeded its statutory authority in granting the Verizon order. EPIC, the petitioner in this action, is a public interest research center focused on First Amendment and other constitutional issues of privacy, open government, free speech, and other civil liberties. [5]

Facts

The Federal Bureau of Investigation (FBI) filed an application with the FISC to compel Verizon to produce telephony metadata from its customers' calls for 90 days. According to the FISA order, telephony metadata includes "comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer." [6]

On April 25, 2013, the FBI was successful in getting the FISC to grant a FISA order compelling Verizon to produce the metadata of its entire customer base for 90 days and provide it to the National Security Agency (NSA). Judge Roger Vinson presided over the proceeding. This particular FISA order came to light as part of the uncovering actions taken by Edward Snowden. [7]

EPIC's Petition

Requirements for Writ of Mandamus

Mandamus is a remedy available for "extraordinary circumstances amounting to a judicial 'usurpation of power'" or a "clear abuse of discretion," and is guided by 28 U.S.C. § 1651(a) [8] and Supreme Court Rule 20.1. [9]

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

— 28 U.S.C. § 1651(a) (All Writs Act)

Issuance by the Court of an extraordinary writ authorized by 28 U.S.C. § 1651(a) is not a matter of right, but of discretion sparingly exercised. To justify the granting of any such writ, the petition must show that the writ will be in aid of the Court’s appellate jurisdiction, that exceptional circumstances warrant the exercise of the Court’s discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court.

— Supreme Court Rule 20.1

Cheney v. United States District Court laid out three conditions to using this type of relief: "(1) the party must have no other adequate means to attain the relief he deserves, (2) the party must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable, and (3) the issuing court must be satisfied that the writ is appropriate under the circumstances." [10]

EPIC's Arguments

In EPIC's filing, it laid out the following arguments for why the Supreme Court should grant the Petition:[ citation needed ]

1. EPIC cannot obtain relief from any other court or forum
a. EPIC cannot seek relief from the FISC or Court of Review
b. No other court can grant EPIC the relief it seeks
2. The FISC order exceeded the scope of the FISC's jurisdiction under the FISA
a. Mandamus aids the Court's appellate jurisdiction when it prevents a lower court from exceeding its lawful authority
b. The FISC lacks the legal authority to order programmatic domestic surveillance under 50 U.S.C. § 1861
3. The FISC order creates exceptional circumstances warranting mandamus
a. Telephony metadata reveals significant private information about EPIC and millions of other americans
b. EPIC is in active litigation against the very agencies tracking EPIC's privileged attorney-client communications
c. EPIC confidentially communicates with members of congress, agency officials, journalists, and others to further its First Amendment-protected advocacy
d. The FISC order compels disclosure of judicial and congressional communications, raising separation of powers concerns [10]

Statutory authority

EPIC asked the Court to consider whether the FISC was acting beyond its authority by applying the FISA order to telephonic communications that were "wholly within the United States, including local telephone calls."[ citation needed ] Under FISA, the FBI "may make an application for an order requiring the production of any tangible things . . . for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." [11] EPIC challenged the connection between the FISA order and the government's anti-terrorist efforts, arguing that "[i]t is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation" (emphasis added). [10]

Jurisdiction and relief

Is the Supreme Court the appropriate forum for this case? Would the FISC or the United States Foreign Intelligence Surveillance Court of Review (FISCR) be a better place for this to be heard? EPIC argues that those courts would not have the authority to provide the relief it seeks. [10] However, at least one academic is of the belief that this is an erroneous argument and that starting in one of those two lower courts would, even if denied, provide a better path to the Supreme Court. [12]

Amicus briefs

There were four amicus briefs filed with the Court: (1) brief amici curiae of Professors of Information Privacy and Surveillance Law; [13] (2) brief amici curiae of Professors James E. Pfander, and Stephen I. Vladeck; [14] (3) brief amici curiae of Former Members of the Church Committee, and Law Professors; [15] and (4) brief amicus curiae of Cato Institute. [16] All four briefs were in support of the Petitioner EPIC.

Decision

On November 18, 2013, the Supreme Court denied EPIC's petition, likely on procedural grounds. [17] [18] In its October 11, 2013 response to EPIC's petition, the government had also argued that the proper procedure would be to first file an action in a federal district court. [19]

Effects of the decision

By denying EPIC's petition, the Supreme Court avoided having to wrestle with the privacy issue at hand. There are, however, other cases addressing the same or similar issues in the pipeline, such as ACLU v. Clapper , that the Supreme Court may choose to hear arguments for and write a full opinion.

Related Research Articles

United States Foreign Intelligence Surveillance Court U.S. federal court

The United States Foreign Intelligence Surveillance Court is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies. Such requests are made most often by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). Congress created FISA and its court as a result of the recommendations by the U.S. Senate's Church Committee.

Electronic Privacy Information Center (EPIC) is an independent nonprofit research center in Washington, D.C. EPIC's mission is to focus public attention on emerging privacy and related human rights issues. EPIC works to protect privacy, freedom of expression, and democratic values, and to promote the Public Voice in decisions concerning the future of the Internet.

Foreign Intelligence Surveillance Act 1978 United States federal law

The Foreign Intelligence Surveillance Act of 1978 is a United States federal law that establishes procedures for the physical and electronic surveillance and the collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism. The Act created the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants by federal law enforcement and intelligence agencies. It has been repeatedly amended since the September 11 attacks.

United States Foreign Intelligence Surveillance Court of Review United States Article III court

The United States Foreign Intelligence Surveillance Court of Review (FISCR) is a U.S. federal court whose sole purpose is to review denials of applications for electronic surveillance warrants by the United States Foreign Intelligence Surveillance Court. The FISCR was established by the Foreign Intelligence Surveillance Act of 1978 and consists of a panel of three judges. Like the FISC, the FISCR is not an adversarial court; rather, the only party to the court is the federal government, although other parties may submit briefs as amici curiae if they are made aware of the proceedings. Papers are filed and proceedings are held in secret. Records of the proceedings are kept classified, though copies of the proceedings with sensitive information redacted are very occasionally made public. The government may appeal decisions of the FISCR to the Supreme Court of the United States, which hears appeals on a discretionary basis.

NSA warrantless surveillance (2001–2007) Part of the Terrorist Surveillance Program

NSA warrantless surveillance — also commonly referred to as "warrantless-wiretapping" or "-wiretaps" — refers to the surveillance of persons within the United States, including U.S. citizens, during the collection of notionally foreign intelligence by the National Security Agency (NSA) as part of the Terrorist Surveillance Program. In late 2001, the NSA was authorized to monitor, without obtaining a FISA warrant, the phone calls, Internet activity, text messages and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lay within the U.S.

In re: Sealed Case No. 02-001, 310 F.3d 717 (2002), is a per curiam decision by the United States Foreign Intelligence Surveillance Court of Review in which it reviewed restrictions that were placed upon a Foreign Intelligence Surveillance Act (FISA) application by the Foreign Intelligence Surveillance Court (FISC) on May 17, 2002. The Court of Review reversed the FISC's restrictions, stating that they "are not required by FISA or the Constitution". This opinion represents the first meeting of and first opinion by the Court of Review. For the purposes of review, the FISC's modification of the requested application worked as a "denial", thus giving the Court of Review jurisdiction to take the case.

MAINWAY The NSAs database of telephone calls

MAINWAY is a database maintained by the United States' National Security Agency (NSA) containing metadata for hundreds of billions of telephone calls made through the four largest telephone carriers in the United States: AT&T, SBC, BellSouth and Verizon.

Protect America Act of 2007

The Protect America Act of 2007 (PAA),, is a controversial amendment to the Foreign Intelligence Surveillance Act (FISA) that was signed into law by U.S. President George W. Bush on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside the United States. The FISA Amendments Act of 2008 reauthorized many provisions of the Protect America Act in Title VII of FISA.

A call detail record (CDR) is a data record produced by a telephone exchange or other telecommunications equipment that documents the details of a telephone call or other telecommunications transactions that passes through that facility or device. The record contains various attributes of the call, such as time, duration, completion status, source number, and destination number. It is the automated equivalent of the paper toll tickets that were written and timed by operators for long-distance calls in a manual telephone exchange.

Marc Zwillinger

Marc Zwillinger is the founder and managing member of the Washington, D.C. based data privacy and information security law firm ZwillGen. Zwillinger has been active in the field of Internet law on issues such as encryption, data security, government access to user data, data breaches, and fantasy sports.

Clapper v. Amnesty International USA, 568 U.S. 398 (2013), was a United States Supreme Court case in which the Court held that Amnesty International USA and others lacked standing to challenge 50 U.S.C. § 1881a of the Foreign Intelligence Surveillance Act as amended by the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008.

PRISM Mass surveillance program run by the NSA

PRISM is a code name for a program under which the United States National Security Agency (NSA) collects internet communications from various U.S. internet companies. The program is also known by the SIGAD US-984XN. PRISM collects stored internet communications based on demands made to internet companies such as Google LLC under Section 702 of the FISA Amendments Act of 2008 to turn over any data that match court-approved search terms. Among other things, the NSA can use these PRISM requests to target communications that were encrypted when they traveled across the internet backbone, to focus on stored data that telecommunication filtering systems discarded earlier, and to get data that is easier to handle.

Boundless Informant Big data analysis and visualization tool used by the NSA

Boundless Informant is a big data analysis and data visualization tool used by the United States National Security Agency (NSA). It gives NSA managers summaries of the NSA's worldwide data collection activities by counting metadata. The existence of this tool was disclosed by documents leaked by Edward Snowden, who worked at the NSA for the defense contractor Booz Allen Hamilton. Those disclosed documents were in a direct contradiction to the NSA's assurance to United States Congress that it does not collect any type of data on millions of Americans.

This is a category of disclosures related to global surveillance.

USA Freedom Act U.S. law

The USA Freedom Act is a U.S. law enacted on June 2, 2015, that restored and modified several provisions of the Patriot Act, which had expired the day before. The act imposes some new limits on the bulk collection of telecommunication metadata on U.S. citizens by American intelligence agencies, including the National Security Agency. It also restores authorization for roving wiretaps and tracking lone wolf terrorists. The title of the act is a ten-letter backronym that stands for Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015.

FISA Improvements Act

The FISA Improvements Act is a proposed act by Senator Dianne Feinstein, Chair of the Senate Intelligence Committee. Prompted by the disclosure of NSA surveillance by Edward Snowden, it would establish the surveillance program as legal, but impose some limitations on availability of the data. Opponents say the bill would codify warrantless access to many communications of American citizens for use by domestic law enforcement.

Proposed reforms of mass surveillance by the United States

Proposed reforms of mass surveillance by the United States are a collection of diverse proposals offered in response to the Global surveillance disclosures of 2013.

<i>Klayman v. Obama</i> American federal court case

Klayman v. Obama was an American federal court case concerning the legality of the bulk collection of both phone and Internet metadata by the United States.

Barack Obama on mass surveillance Overview of the statements of former U.S. president Barack Obama on mass surveillance

U.S. president Barack Obama has received widespread criticism due to his support of government surveillance. President Obama had released many statements on mass surveillance as a result.

<i>ACLU v. Clapper</i>

American Civil Liberties Union v. James Clapper, No. 13-3994, 959 F.Supp.2d 724, was a lawsuit by the American Civil Liberties Union (ACLU) and its affiliate, the New York Civil Liberties Union, against the United States federal government that challenged the legality of the National Security Agency's (NSA) bulk phone metadata collection program. On December 27, 2013, the United States District Court for the Southern District of New York dismissed the case, finding that the collection of metadata did not violate the Fourth Amendment. On January 2, 2014, the ACLU appealed the ruling to the United States Court of Appeals for the Second Circuit. On May 7, 2015, the appeals court ruled that Section 215 of the Patriot Act did not authorize the bulk collection of metadata, which judge Gerard E. Lynch called a "staggering" amount of information.

References

  1. ↑ Foreign Intelligence Surveillance Act
  2. ↑ Savage, Charlie; Wyatt, Edward (June 5, 2013). "U.S. Is Secretly Collecting Records of Verizon Calls". The New York Times . Retrieved April 21, 2015.
  3. ↑ Wyden, Ron; Udall, Mark (March 15, 2012). "Senators Ron Wyden Mark Udall Letter to Attorney General Holder" . Retrieved April 21, 2015.
  4. ↑ Greenwald, Glenn (6 June 2013). "NSA collecting phone records of millions of Verizon customers daily". The Guardian. Retrieved August 16, 2013. Exclusive: Top secret court order requiring Verizon to hand over all call data shows scale of domestic surveillance under Obama
  5. ↑ "About Us – EPIC – Electronic Privacy Information Center".
  6. ↑ "Verizon forced to hand over telephone data – full court ruling". TheGuardian.com .
  7. ↑ Barton Gellman; Aaron Blake; Greg Miller (2013-06-09). "Edward Snowden comes forward as source of NSA leaks". The Washington Post . Washington, D.C. ISSN   0190-8286. OCLC   1330888409.
  8. ↑ 28 U.S.C.   § 1651(a)
  9. ↑ Cheney v. U.S. Dist. Court for the Dist. of Columbia
  10. 1 2 3 4 In re Electronic Privacy Information Center
  11. ↑ 50 U.S.C.   § 1861(a)(1)
  12. ↑ "The Supreme Court's Power to Hear in re EPIC". 10 July 2013.
  13. ↑ "Archived copy" (PDF). Archived from the original (PDF) on 2013-11-26. Retrieved 2014-03-05.{{cite web}}: CS1 maint: archived copy as title (link)
  14. ↑ http://epic.org/privacy/nsa/in-re-epic/Pfander-Vladeck-Amici-Brief.pdf [ bare URL PDF ]
  15. ↑ http://epic.org/privacy/nsa/in-re-epic/Church-Committee-Amicus.pdf [ bare URL PDF ]
  16. ↑ http://epic.org/privacy/nsa/in-re-epic/Cato-Amicus.pdf [ bare URL PDF ]
  17. ↑ "Search - Supreme Court of the United States".
  18. ↑ Liptak, Adam (18 November 2013). "Justices Reject Challenge to N.S.A. Program". The New York Times.
  19. ↑ https://epic.org/privacy/nsa/in-re-epic/13-58-SG-Brief.pdf [ bare URL PDF ]
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