A nonprofit privacy group asked the US Supreme Court on Monday to invalidate a secret court order that authorized the US government to collect and retain all telephone metadata from every Verizon business customer in the United States.
The order was issued April 25 and required Verizon Business Network Services to turn over the data every day through July 19, 2013.
The secret decision was issued by a judge with the Foreign Intelligence Surveillance Court and had remained a classified document until it was publicly disclosed recently by former National Security Agency contractor Edward Snowden.
In response to the unusually broad data collection order, the Electronic Privacy Information Center (EPIC) in Washington filed an emergency petition with the Supreme Court seeking to overturn the order and stop the ongoing collection of domestic telephone records of millions of Americans.
Such petitions to the high court are rare, and even more rarely granted.
The once-secret order demanded that Verizon turn over to the NSA “all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”
The order does not require disclosure of the content of the phone calls. Instead it seeks routing information, including the telephone numbers making and receiving the calls, subscriber identity numbers, calling card numbers, and the time and duration of the calls.
Such metadata is used by intelligence analysts to identify patterns of behavior and networks of associates. Experts say it can reveal substantial personal information when such data is collected and analyzed over time.
“Telephone records, even without the content of the calls, can reveal an immense amount of sensitive, private information. There is no reasonable grounds for the NSA to have access to every call record of every Verizon customer,” Marc Rotenberg, president of EPIC, said in a statement.
He said the Foreign Intelligence Surveillance Court was applying the surveillance act in a way that is inconsistent with the text and purpose of the statute.
The secret court “exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation,” Mr. Rotenberg said, in a 38-page petition urging the high court to take up the issue.
“It is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation,” he wrote.
Rotenberg said the order issued by the Foreign Intelligence Surveillance Court touched on the privacy interests of all Verizon business customers, including his own organization, EPIC.
He said EPIC was involved in on-going litigation against various government agencies, and that it engaged in sensitive communications with clients over the telephone.
“The records acquired by the NSA under this Order detail the daily activities, interactions, personal and business relationships, religious and political affiliations, and other intimate details of millions of Americans,” he said.
He said Americans will be less likely to freely express themselves and associate with others if they know or suspect that the government is collecting information about their use of the telephone.
The petition warns that there is nothing in the order that prevents the government from collecting and analyzing metadata related to communications of the judiciary and members of Congress. As such, the petition said, it “inappropriately arrogates exceptional power to the Executive Branch.”
Traditionally, under the Fourth Amendment, government officials are required to obtain a warrant from a neutral judge authorizing any surveillance or wiretapping. Investigators must be able to show there is probable cause to believe a crime has been committed or is about to be committed by a particular individual that would justify the intrusion into that person’s privacy.
As part of the war on terror, Congress passed a statute in 2008 that allows the government more leeway in collecting massive amounts of telecommunications data without having to show such individualized suspicion of illegality.
At issue in the EPIC petition is whether the government and the Foreign Intelligence Surveillance Court have exceeded limits enacted by Congress to prevent such wide-ranging surveillance of Americans.
The case is In Re Electronic Privacy Information Center.