The US Supreme Court on Monday declined to take up a potential major case examining whether the National Security Agency’s bulk collection and storage of telephone metadata from virtually every American violate the limits of federal law.
The justices turned aside the case without comment. Had they agreed to take up the issue, the stage would have been set for a high-court showdown testing whether the NSA overstepped its authority under the Foreign Intelligence Surveillance Act (FISA) by collecting and storing telephone service information for every telephone call made and received in the US.
Several other cases pending in federal district courts challenge the massive collection program as an invasion of Americans’ privacy.
Aside from the pending court cases, the high court's action on Monday leaves it to the political branches – Congress and the White House – to sort out whether the NSA and other US spy agencies should have the power to make bulk collections of data for later use in intelligence gathering and counter-terrorism.
Two bills are pending in Congress to address issues related to the NSA program.
The justices' rejection also leaves open the question of whether the secret court set up under FISA is providing adequate judicial review of the controversial intelligence program.
The massive scope of the bulk collection was revealed earlier this year when former NSA contractor Edward Snowden began leaking key documents to the media.
Some critics of the program are concerned that the government may also be seeking bulk collection of data related to e-mails and text messages. In addition, The New York Times reported last week that the Central Intelligence Agency is secretly collecting bulk data involving international money transfers.
Monday’s rejected case involved a legal challenge mounted by the Electronic Privacy Information Center, a Washington-based advocacy group that seeks to protect against erosions to privacy from widespread use of technology. Its central issue was whether the NSA is adhering to what privacy advocates and some members of Congress say are legislative restrictions to agency activities under the FISA law.
Government lawyers have embraced a broad reading of FISA that allows for such bulk collection programs, and judges appointed to the secret Foreign Intelligence Surveillance Court (FISC) have embraced that broad reading.
Marc Rotenberg, EPIC executive director, argued in his brief to the justices that FISA does not permit bulk collection of telephone metadata. He said the secret intelligence court was wrong to endorse the government’s permissive reading of the law.
Mr. Rotenberg said he was forced to bring his lawsuit directly to the Supreme Court because FISA includes no provision for ordinary Americans – whose telephone data the NSA is collecting in bulk – to sue to protect their privacy from government intrusion. Only the Supreme Court is positioned to adequately address injuries to EPIC’s privacy and the privacy of all American telephone users, Rotenberg argued.
“The ongoing collection of the domestic telephone records of millions of Americans by the NSA, untethered to any particular investigation, is beyond the authority granted by Congress to the [secret intelligence court] under the [Foreign Intelligence Surveillance Act],” he wrote in his brief.
Solicitor General Donald Verrilli said in his brief that under the foreign surveillance law Congress sharply restricted who could appeal a decision of the secret intelligence court.
Only the government or the recipient of an order to turn over information to the government is permitted to seek juridical review, Mr. Verrilli said. Thus, EPIC lacks the legal standing to bring its lawsuit to the high court, he said.
He added that under the system of judicial review established by Congress, there is no role for the Supreme Court, either.
As to the legality of NSA actions, Verrilli said the secret intelligence court had ruled correctly.
“As of October 1, 2013, fourteen different judges of the FISC, on thirty-four separate occasions, have approved… orders directing telecommunications service providers to produce records in connection with the [metadata collection program,]” Verrilli wrote.
Rotenberg said rulings by the FISC are creating “a body of secret case law” that is evading effective appellate review.
“It is the Government’s position that neither a federal district court nor this Court may determine whether those decisions are correct,” Rotenberg said in his brief.
No recipient of a FISA order to produce data has sought to challenge the legality of the order. In the case of telephone metadata, the orders are directed to telecommunications companies, such as Verizon and AT&T. The orders demand that the companies produce information about the dates, times, durations, and both the sending and receiving phone numbers. They do not authorize recording the content of phone calls.
Although the seized metadata do not include the content of conversations, they nonetheless reveal a treasure trove of personal information.
Intelligence agencies use such information to identify a broader network of friends and associates. It is a method to help uncover other members of a suspected terrorist plot before the plot can be carried out.
But careful analysis of the telephone data can also reveal intimate details of people's lives, not only who they talk to and in what frequency, but also where they work, what businesses they patronize, what services they use, if they have a medical condition, bad teeth, are unfaithful in their marriage, etc.
A central question in the case was whether the government should be able to collect such data without first showing there is reason to believe that the person whose data are being collected is involved in criminal activity. Requiring such an individualized showing would render the bulk collection program impossible to carry out – and illegal.
EPIC's Rotenberg says the statutory language used in FISA does not authorize bulk collections of data. Before the government can demand that a telecommunications company surrender its metadata, FISA requires the government to present a statement to a judge showing there are reasonable grounds to believe that the information sought is “relevant to an authorized investigation,” he said.
An authorized investigation would, by necessity, have a defined focus on either an individual or individuals engaged in a course of conduct, rather than a blanket order to vacuum up everything, he and other critics argue.
In addition to requiring the existence of an authorized investigation, the FISA statute mandates that the information sought must be “relevant” to that investigation.
Intelligence officials say the bulk collection of telephone metadata for all Americans does not violate the privacy rights of those whose data are collected. This is so, they say, because the NSA promises that it will search its metadata database only when there is a “reasonable, articulable suspicion” that the data to be queried are associated with a specified foreign terrorist organization.
Critics say the government’s position glosses over the statute's requirements. There is no authorization to collect metadata, period, they say. The statute permits only the collection of data relevant to a preexisting authorized investigation. Critics question how the telephone records of every American could possibly be relevant to an authorized investigation.
They note that today there are more than 317 million cellphones in the United States – more phones than people.
The requirement of the US Constitution that law enforcement officials obtain a judicially authorized warrant only after making a particularized showing is designed to prevent authorities from setting up broad dragnets, these critics argue.
In response, the government stresses that Congress has been aware of the secret program for many years and has taken no action to impose privacy protections.
Verrilli said in his brief that, since 2007, all pleadings and orders related to the telephone metadata program have been provided to members of the Senate and House Intelligence and Judiciary Committees. In addition, a classified briefing on the then-secret program was made available to every member of Congress, he said.
Privacy advocates and civil libertarians warn that if the telephone metadata program survives various challenges, it will lead to additional bulk collection programs. They say the government would use same justification to authorize bulk collection of metadata involving e-mails, text messages, credit-card usage, financial payments and deposits, GPS pings, and other electronic signatures and transactions.
“Under the government’s theory, all email metadata, location metadata, financial metadata, and Internet metadata would also be ‘relevant’ to an authorized investigation,” Rotenberg warned in his brief.
The case was In Re Electronic Privacy Information Center (23-58).