In re EPIC - NSA Telephone Records Surveillance
"It is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation. Such an interpretation of Section 1861 would render meaningless the qualifying phrases contained in the provision and eviscerate the purpose of the Act." - EPIC Mandamus Petition
- European High Court Strikes Down Data Retention Law: In a far-reaching and dramatic opinion, the European Court of Justice has ruled that the mass storage of telecommunications data violates the fundamental right to privacy and is illegal. The Data Retention Directive required telephone and Internet companies to keep traffic and location data as well as user identifying information for use in subsequent investigations of serious crimes. According to the Court, the Directive imposed "a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary." The Court found that the collection of metadata constitutes the processing of personal data and must therefore comply with Article 8 of the Charter of Rights. The Court also said to find a privacy violation, "it does not matter whether the information on the private lives concerned is sensitive or whether the persons concerned have been inconvenienced in any way." Last year EPIC, joined by dozens of legal scholars and former members of the Church Committee, urged the US Supreme Court to find the NSA's telephone record collection program unlawful. For more information, see EPIC - Data Retention, In re EPIC. (Apr. 8, 2014)
- President Obama Renews Unlawful, Ineffective Surveillance Authority: According to the Attorney General and the Director of National Intelligence, President Obama has renewed the NSA's authority to collect all of the telephone records of all American telephone customers. The "Section 215" program exceeded Congressional authority and was found to be ineffective by two expert panels. At a speech on January 17, 2014, President Obama ordered a transition that will end the Section 215 bulk telephony metadata program as it currently exists. However, according to DNI Clapper, the United States filed an application with the FISC to reauthorize the existing program as previously modified for 90 days, and the FISC issued an order approving the government's application. The order issued expires on June 20, 2014. EPIC and others have strongly objected to the renewal of the 215 program. For more information, see EPIC In re EPIC. (Mar. 29, 2014)
- Senator Leahy Urges President to End NSA Record Collection Program on Friday: In remarks published this week, Senator Patrick Leahy, Chairman of the Senate Judiciary Committee and co-sponsor of the USA FREEDOM Act, said "I welcome the President's statement that he plans to end the bulk collection of American’s phone records. That is a key element of what I and others have outlined in the USA FREEDOM Act, and that is what the American people have been demanding." Senator Leahy added, "the President could end bulk collection once and for all on Friday by not seeking reauthorization of this program. Rather than postponing action any longer, I hope he chooses this path." EPIC and others have urged the President not to renew the NSA telephone record collection authority when it expires this week. For more information, see In re EPIC. (Mar. 27, 2014)
- Deadline Approaches for End of NSA's Telephone Record Collection Program: March 28 marks the deadline set by President Obama to end the NSA's bulk collection of American's telephone records. Last week, Attorney General Eric Holder confirmed that the Justice Department is ready to meet the deadline that the President has set. After extensive meetings with leaders of the Intelligence Community, both the President's Review Group and the Privacy and Civil Liberties Oversight Board found the program was ineffective and likely exceeded current legal authority. Senator Leahy, who held extensive public hearings, has stated "This program is not effective. It has to end." EPIC, supported by dozens of legal scholars and former members of the Church Committee, petitioned the US Supreme Court in July 2013 to end the "215" program. For more information, see In re EPIC and EPIC: NSA Verizon Phone Record Monitoring. (Mar. 24, 2014)
- In FOIA Lawsuit, EPIC Obtains Secret Reports on Data Collection: In a Freedom of Information Act lawsuit, EPIC has obtained reports that detail the number of times the Surveillance Court authorized the use of techniques that gather the telephone numbers and metadata of phone customers and Internet users. The previously secret reports obtained by EPIC cover the period between 2000 and 2013. The reports reveal a dramatic increase in the use of these techniques in 2004 and then a significant reduction in 2008, likely the consequence of a shift to other investigative techniques. The documents show that nearly all applications to the Surveillance Court were approved without modifications. In 2013, EPIC petitioned the Supreme Court to end the bulk telephone record collection program. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information see: EPIC v. Department of Justice - Pen Register Reports, EPIC: Foreign Intelligence Surveillance Court Orders 1979-2012, and In re EPIC. (Mar. 3, 2014)
- Oversight Board Calls for End of NSA Telephone Records Program: Today the Privacy and Civil Liberties Oversight Board called for the end of the section 215 program that allows the NSA to collect the telephone records of all Americans. In a comprehensive report, the Oversight Board unanimously found that "the NSA's Section 215 program has not proven useful in identifying unknown terrorists or terrorist plots" and that "telephone calling records, when collected in bulk and subjected to powerful analytic tools, can reveal highly sensitive personal information." A majority of the board also concluded that Section 215 did not permit the routine collection of all telephone records on all Americans. The report set out 12 recommendations discussing additional privacy safeguards, greater transparency, and improvements to the Foreign Intelligence Surveillance Court. The members of the Oversight Board unanimously supported almost all of the recommendations. EPIC urged the Board last year at a public workshop to (1) find that section 215 does not permit the collection of all telephone records by the NSA; (2) improve reporting of FISA activities; (3) establish new safeguards for transparency and accountability; and (4) reconsider the Constitutional basis of metadata collection in light of the scope of the government's activities and recent Supreme Court opinions. EPIC had earlier petitioned the Supreme Court to find the 215 program unlawful. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information, see EPIC: In re EPIC - NSA Telephone Record Surveillance. (Jan. 23, 2014)
- Review Group to Senate: NSA Program Has Not Prevented Threats: Members of the President's Review Group presented their recommendations for NSA reform a Senate Judiciary Committee hearing. EPIC participated in the work of the Review Group. The export panel set out 46 recommendations on a range of issues from reforming intelligence surveillance directed at United States persons to promoting prosperity, security, and openness in the networked world. The Members stated the the NSA's bulk collection of metadata had not prevented threats against the United States and recommend that the it be ended. Acknowledging privacy concerns, former CIA Deputy Director Michael Morrell also stated that "there is quite a bit of content in metadata." Last year, EPIC filed a petition in the Supreme Court challenging the legality of the NSA's telephone record collection program. Legal scholars and former members of the Church Committee supported the EPIC petition. The Supreme Court dismissed the petition without ruling on the merits. For more information, see In re EPIC.
"there is quite a bit of content in metadata" - Morrell, former CIA Deputy Director (Jan. 15, 2014)
- NY Judge Rules NSA Program Legal, Split Emerges Among Courts: A federal judge in New York has ruled that the NSA's telephone metadata program is legal. The ruling comes less than two weeks after a federal judge in Washington, DC issued an injunction against the telephone record collection program—calling it an "unreasonable search under the Fourth Amendment." The opinions create a split amongst the district courts as to the legality of the NSA's program. Both opinions are expected to be appealed. The President's Review Group recently released its report recommending the end of the NSA's bulk collection of telephony metadata. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the program, shortly after the disclosure earlier this summer. For more information, see In re EPIC and EPIC: FISC Verizon Order. (Dec. 30, 2013)
- Expert Panel Calls for End of NSA Bulk Data Collection: The President's Review Group on Intelligence and Communications Technologies has concluded that the NSA’s collection of bulk telephone records should end. In a sweeping report "Liberty and Security in a Changing World," the review panel set out 46 recommendations, which would limit NSA surveillance, expand judicial oversight, create new transparency requirements, update federal privacy laws, and create a new privacy agency. Other recommendations include the application of the Privacy Act of 1974 to both U.S. and non-U.S. persons, support for strong encryption techniques, and the cessation of U.S. practice of stockpiling software vulnerabilities known as "zero day" exploits. Earlier this year, EPIC met with the review group and submitted extensive comments to the panel, specifically urging the end of the bulk record collection program. EPIC had earlier petitioned the Supreme Court to find the program unlawful. For more information, see EPIC: In re EPIC - NSA Telephone Record Surveillance. (Dec. 19, 2013)
- Federal Judge Enjoins Telephone Metadata Program, NSA Likely Violated Fourth Amendment: A federal judge today issued an injunction against the NSA telephone record collection program. Judge Leon ruled that the plaintiffs "have a substantial likelihood of showing that their privacy interest outweigh the Governments interest in collecting and analyzing bulk telephony metadata and therefore the NSA's Bulk Metadata program is indeed an unreasonable search under the Fourth Amendment." Judge Leon also stressed that "While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution." This is the first court opinion issued on the controversial surveillance program. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the the program, shortly after the disclosure earlier this summer. The decision of the district court will be stayed pending an appeal by the government to the DC Circuit Court of Appeals. For more information, see In re EPIC and EPIC: FISC Verizon Order. (Dec. 16, 2013)
- Presidential Task Force to Recommend Changes at NSA : The Review Group on Intelligence and Communications Technologies, established to recommend surveillance reforms, will send a final report to the President this Sunday. According to one news article, the task force will recommend putting a civilian leader in charge of NSA, separating out the code-breaking "Information Assurance Directorate," and splitting the U.S. Cyber Command off into a separate military unit. The Review Group will also recommend new limits on the NSA’s ability to search telephone call records, proposing that telephone records be stored with a third party rather than the NSA. The group will also recommend safeguards for the data of European citizens, and restrictions on the use of National Security Letters. Earlier this year, EPIC filed a petition with the U.S. Supreme Court, supported by legal scholars and former members of the Church Committee, arguing that the NSA bulk collection program was unlawful. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Foreign Intelligence Surveillance Act Reform, and EPIC: In re EPIC. (Dec. 13, 2013)
- EPIC Urges FCC to Investigate AT&T’s Practice of Selling Consumer Phone Records: In a letter to Federal Communications Commission Chairman Tom Wheeler, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. EPIC's letter follows an earlier letter where EPIC asked the FCC to resolve whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. EPIC's letter also informed the Commission that the National Association of Regulatory Utility Commissioners has issued a draft resolution underscoring the crucial role of the FCC in protecting consumer information. For more information, see EPIC: In re EPIC and EPIC: Foreign Intelligence Surveillance Act. (Nov. 18, 2013)
- Supreme Court Declines EPIC's Challenge to NSA Domestic Surveillance Program, Leaves in Place Order of Surveillance Court: Today the Supreme Court denied review of In re EPIC, a direct challenge to the NSA telephone record collection program. EPIC argued that an order of the secretive Surveillance Court that required Verizon to turn over all customer records exceeded legal authority. "It is simply not possible that every phone record in the possession of Verizon is relevant to a national security investigation," EPIC stated. EPIC asked the Supreme Court to overturn the order of the Foreign Intelligence Surveillance Court. Prominent legal scholars and members of the Church Committee who wrote the law agreed. Four groups filed amicus briefs in support and urged the Supreme Court to grant EPIC’s petition. However, the Supreme Court, without comment, declined to hear the case. For more information, see In re EPIC, In re EPIC Press Release. (Nov. 18, 2013)
- Privacy Groups to FTC: Investigate Role of US Firms in NSA Surveillance: Consumer privacy organizations in the US have asked the Federal Trade Commission to determine whether US companies turned over private customer data to the National Security Agency. "We urge you to open an investigation to determine whether any failure by these companies to comply with the Commission's orders may have contributed to the improper disclosure of customer data," the groups wrote. The organizations, which have brought many privacy complaints to the FTC, stated that the disclosure of user data "directly implicates the jurisdiction of the Federal Trade Commission." According to the organizations, "it is inconceivable that when faced with the most significant breach of consumer data in U.S. history, the Commission could ignore the consequences for consumer privacy." EPIC previously wrote to the Federal Communications Commission regarding the unlawful provision of call detail records to the NSA. The Supreme Court is scheduled to consider EPIC's challenge to the NSA telephone record collection program at conference this week. For more information, see In re EPIC. (Nov. 13, 2013)
- Supreme Court to Consider EPIC Challenge to NSA Program This Week: The Supreme Court is scheduled to consider EPIC's challenge to the NSA telephone record collection program at conference this week. EPIC has asked the Court to overturn an order of the Foreign Intelligence Surveillance Court that compelled Verizon to produce all of the telephone records of all of its customers to the NSA. EPIC said that this order clearly exceeded the authority of the surveillance court. The EPIC Petition was distributed to the Justices last week along with briefs by former Church committee members and prominent scholars in information law, federal jurisdiction, and constitutional law, who all urged the Supreme Court to grant the EPIC petition. For more information, see In re EPIC. (Nov. 12, 2013)
- Leahy and Sensenbrenner Introduce USA FREEDOM Act: The Democratic Chair of the Senate Judiciary Committee and the Republican author of the Patriot Act have introduced the USA FREEDOM Act, which would reform the Foreign Intelligence Surveillance Act and limit NSA surveillance activities. A bi-partisan coalition, including 17 Senators and 70 Members of Congress, have joined as original co-sponsors. Key provisions of the FREEDOM Act increase transparency of intelligence activities, prevent end-runs around the FISA Court, and improve public reporting. In 2012 EPIC testified before the House Judiciary Committee about the need to reform FISA and to improve oversight of the FISA court. The FREEDOM Act also ends the controversial bulk phone records collection program. EPIC has brought a challenge in the Supreme Court to the phone records program, explaining that it is unlawful under current law. For more information, see EPIC: In re EPIC and EPIC - Foreign Intelligence Surveillance Act. (Oct. 29, 2013)
- EPIC Supports Campaign to End Mass Surveillance: EPIC joined more than one hundred organizations at the Stop Watching Us rally October 28 in Washington DC. EPIC Counsel Khaliah Barnes told the crowd, "First they ignore us, then they laugh at us, then they fight us, and then we win." The night before the rally, EPIC organized a crypto party with Public Citizen. Featured speakers included Bruce Schneier and Libertarian Presidential candidate Gary Johnson. EPIC has filed a Supreme Court challenge to the NSA telephone record collection program. For more information, see In re EPIC - NSA Telephone Records Surveillance. (Oct. 29, 2013)
- EPIC Files in Supreme Court, Responds to Government in NSA Challenge: EPIC has filed a reply brief in In re EPIC with the U.S. Supreme Court, responding to the Government's brief, which was filed after two extensions. The government argues the Supreme Court cannot hear the case. EPIC responded that it "simply cannot be correct" that the order of the Foreign Intelligence Surveillance Court, an inferior court, is not reviewable by the Supreme Court. EPIC also explained that the order is clearly unlawful. "No court has ever determined that 'relevance' permits the compelled production of such vast quantities of irrelevant personal information," EPIC said, noting that Congressman Sensenbrenner, co-author of the USA PATRIOT Act, has written that "This expansive characterization of relevance makes a mockery of the legal standard." EPIC also outlined the extraordinary impact of the NSA telephone record collection on all Americans: "These telephone records are unique and identifiable, and reveal a great deal of private information about millions of telephone users. In no instance has the Government established any individualized suspicion to support the collection of this information." For more information, see In re EPIC. (Oct. 28, 2013)
- EPIC, Coalition Urge NSA to Comply with Privacy Act: EPIC, joined by a coalition of privacy, consumer rights, and civil rights organizations, has urged the Department of Defense to require the National Security Agency to comply with the federal Privacy Act, the primary law protecting personal information held by the federal government. The comments came in response to a proposed agency rule that would amend the Defense Department's privacy program. The organizations noted that the National Security Agency is a component of the Defense Department and subject to agency regulations. EPIC and the coalition stated, "The DOD must ensure that the NSA complies with the Privacy Act by publishing additional system of records notices and otherwise adhering to the Privacy Act before it can adopt its current proposal." Although the NSA has identified twenty-six Privacy Act databases, recent revelations by the Guardian suggest that there are many other databases subject to the Privacy Act that should be identified. EPIC has also petitioned the Supreme Court, challenging to the NSA's telephone record collection program. For more information, see In re EPIC. (Oct. 22, 2013)
- Government Responds to EPIC's Supreme Court Challenge of NSA Telephone Record Program: The Solicitor General has filed a response to EPIC's challenge to the NSA's telephone record collection program. In July, EPIC petitioned the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court that requires Verizon to turn over all telephone records to the NSA. EPIC argued that the Intelligence Court exceeded its legal authority and could not compel a telephone company to disclose so much personal information unrelated to a foreign intelligence investigation. Legal scholars and former Members of Congress filed briefs in support of EPIC's petition, including privacy and national security scholars, constitutional scholars, federal courts scholars, and members of the Church Committee. Congressman James Sensenbrenner, the primary author of the Patriot Act, has said that the telephone records collection program was never authorized by Section 215. For more information, see In re EPIC. (Oct. 14, 2013)
- Senator Leahy Urges FISA Reform at Georgetown Law: Speaking at a conference hosted by the Georgetown University Law Center, the Chairman of the Senate Judiciary Committee called for an end "to the bulk collection of Americans' phone records." Senator Leahy said "the system set up in the 1970s to regulate the surveillance capabilities of our Intelligence Community is no longer working. We must recalibrate." Senator Leahy has introduced bipartisan legislation that would end the telephone record collection program, reduce secret law, and improve the structure of the Foreign Intelligence Surveillance Court. The Senate Judiciary Committee will hold an oversight hearing next week on the Foreign Intelligence Surveillance Act. EPIC has filed a petition with the US Supreme Court, arguing that the bulk collection of telephone toll records is unlawful. For more information, see EPIC - In re EPIC. (Sep. 25, 2013)
- Senators Call for Public Report by IC Inspector General on NSA Surveillance: A bipartisan group of Senators, including the Chairman and Ranking Members of the Senate Judiciary Committee, have called for a full-scale review of the use of surveillance authorities by the intelligence community. The Senators emphasized that the findings and conclusions of this review be made public to "help promote greater oversight, transparency, and public accountability." The requested report would address activities conducted under Section 215 of the USA PATRIOT Act and Section 702 of the FISA, which includes the collection of the telephone call records of hundreds of millions of Americans. Specifically, the report would review the use and implementation of 215 and 702, the applicable minimization procedures, any improper use of the authorities, and examine the effectiveness over the 2010-2013 period. EPIC is currently challenging the order for bulk collection of domestic call records in its Petition for Writ of Mandamus in the U.S. Supreme Court. For more information, see In re EPIC and EPIC: FISA Reform. (Sep. 24, 2013)
- Foreign Intelligence Court Releases Controversial Opinion on Domestic Telephone Records Program: The Foreign Intelligence Surveillance Court (FISC) has released an Opinion, justifying the NSA's telephone record collection program. In the Opinion, Judge Claire Eagan states that "there is no Fourth Amendment impediment to the collection" of all domestic call detail records. Judge Eagan also concluded that all domestic call detail records are "relevant" under Section 215 because "individuals associated with international terrorist organizations use telephonic systems to communicate" and because the government argued that bulk collection is 'necessary to create a historical repository of metadata' in order to identify 'known and unknown operatives. This FISC opinion was issued more than a month after EPIC filed its Mandamus Petition challenging the NSA domestic surveillance in the U.S. Supreme Court. The Eagan opinion has also been criticized by legal scholars. For more information, see In re EPIC. (Sep. 20, 2013)
- Office of National Intelligence Releases New Documents on NSA Surveillance: The Office of the Director of National Intelligence has just released new documents concerning the NSA's surveillance programs. The documents, which include numerous filings with the Foreign Intelligence Surveillance Court, date back to 2006. The documents specifically relate to the governments collection of information under Section 215 of the USA PATRIOT Act. In a Mandamus Petition to the United States Supreme Court, EPIC has argued that the FISA Court exceeded the statutory authority under Section 215 when it authorized bulk collection of American's telephone records in an Order concerning Verizon. Under Section 215, the FISA Court may order businesses to produce records that are "relevant" to an authorized national security investigation, but the Verizon Order requires production of all domestic telephone records on an ongoing basis. For more information, see EPIC: In re EPIC - NSA Telephone Records Surveillance. (Sep. 11, 2013)
- EPIC Meets with President's Intelligence Review Group: EPIC President Marc Rotenberg and EPIC Advisory Board Member Steve Aftergood met today with the Review Group on Intelligence and Communication Technology. The President tasked the panel with the responsibility to assess whether the "United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust." EPIC submitted detailed recommendations and included copies of EPIC's Supreme Court petition, arguing that the current domestic surveillance program is unlawful, as well as EPIC's Congressional testimony on the FISA Amendments Act and EPIC's 2010 letter to the Foreign Intelligence Surveillance Court concerning reform of FISA procedures. The panel will accept comments from the public until October 4, 2013. Comments are to be sent to firstname.lastname@example.org, which oddly is the domain of the current Director of National Intelligence. (Sep. 9, 2013)
- European Parliament Begins Hearings on NSA Surveillance: The European Parliament will hold a hearing, "Electronic Mass Surveillance of EU Citizens," on September 5, 2013. The hearing is hosted by the Committee on Civil Liberties, Justice, and Home Affairs ("LIBE Committee"). Witnesses include journalists and the Editor-in-Chief of the Guardian as well as current and former government officials. The hearing will focus on surveillance conducted by the United States, but will also address EU-Member State surveillance. A live stream will be accessible. The hearings is the first in a series mandated by a resolution of the European Parliament. EPIC has filed a Petition for a Writ of Mandamus in the U.S. Supreme Court, calling the National Security Agency's practice of collecting U.S. person phone call information unlawful. For more information, see EPIC: In re EPIC - NSA Telephone Records Surveillance. (Sep. 4, 2013)
- Solicitor General Seeks Second Extension for Response to EPIC in Supreme Court Challenge to Domestic Surveillance Program: The Solicitor General of the United States has asked the clerk of the US Supreme Court for a second extension to prepare a response to EPIC's Petition, which argues that the order of the FISA Court for domestic telephone toll records was unlawful and must be overturned. EPIC filed the Petition on July 8, 2013. Subsequently, several amicus briefs in support of EPIC were filed with the Court by privacy scholars, Constitutional scholars, experts in the Court's jurisdiction, and former members of the Church Committee. The Solicitor General asked for a 30-day extension for the initial August 12, 2013 deadline which was granted. The SG has now asked for a second 30-day extension. The case is In re EPIC, Petitioner, No. 13-58. For more information, see In re EPIC - NSA Telephone Records Surveillance. (Aug. 30, 2013)
- Leading Privacy Scholars Support EPIC's Supreme Court Petition: The nation's leading privacy law scholars have filed a series of amici briefs with the U.S. Supreme Court supporting EPIC's challenge to the NSA domestic surveillance program. A brief by privacy and surveillance law professors argues that the bulk collection of telephone metadata is unlawful under the Patriot Act. Their brief explains that the program violates the Foreign Intelligence Surveillance Act and the Executive Order governing intelligence operations. A brief by former Church Committee members and twenty-eight law professors, submitted by constitutional expert Erwin Chemerinsky, outlines the history of domestic surveillance abuses and explains that the FISA was enacted specifically to limit such collection. Another brief by Fourth Amendment experts at the Cato Institute argues that the Verizon Order is equivalent to a "general warrant" issued in violation of the Fourth Amendment, and that the Supreme Court's recent decision in United States v. Jones shows that "EPIC has a legal and constitutional interest in data about its telephone calls." Finally, a brief filed by Professors James Pfander and Stephen Vladeck, leading experts in federal courts, argues that the Supreme Court has jurisdiction to grant EPIC's petition and that the legal question is properly before the Court. For more information, see In re EPIC. (Aug. 13, 2013)
- Solicitor General to Respond to EPIC Mandamus Petition: The Solicitor General requested on Friday an extension to file a response to EPIC's Mandamus Petition in In re EPIC. The Court granted the extension, and the Solicitor's response is due on September 11, 2013. In the Mandamus Petition, EPIC argues that the FISA Court exceeded the statutory authority under Section 215 of the USA PATRIOT Act when it authorized bulk collection of American's telephone records. Under Section 215, the FISA Court may order businesses to produce records that are "relevant" to an authorized national security investigation, but the Verizon Order requires production of millions of private records unrelated to any investigation. The Administration recently argued that bulk collection meets the relevance standard, but it has scant legal authority to support that proposition. For more information, see In re EPIC. (Aug. 13, 2013)
- Administration Argues NSA Domestic Surveillance is Lawful; President Supports FISA Court Adversary: The administration released a white paper outlining its legal argument for why the Patriot Act Section 215 authorizes the NSA to collect all Americans' telephone records. The government also released a NSA memo discussing the agency's program. At a press conference on Friday, President Obama outlined proposals that would address some, but not all, problems with the domestic surveillance programs, such as appointing a special advocate to argue in favor of civil liberties before the FISA Court. EPIC has brought a lawsuit in the Supreme Court challenging the legal authority for the NSA telephone surveillance program. For more information, see In re EPIC. (Aug. 12, 2013)
- Government Releases Secret Court Order Authorizing NSA Telephone Surveillance: The Director of National Intelligence has published the "Primary Order" from the FISA Court which describes the scope of the NSA's data analysis activities for telephone call records. The order details the procedures the NSA is expected to follow when reviewing data, but is heavily redacted. The order does not include a legal analysis of the surveillance laws being applied. The government also released past reports on the NSA's domestic surveillance program. For more information, see In re EPIC - NSA Telephone Records Surveillance and EPIC: NSA Petition. (Jul. 31, 2013)
- Chairman Leahy Calls For End of NSA Telephone Surveillance Program: Senator Patrick Leahy said in an oversight hearing that the NSA's domestic telephone surveillance program should be terminated. "This program is not effective. It has to end," said the Chairman of the Senate Judiciary Committee. Senator Leahy has also introduced the FISA Accountability and Privacy Protection Act, to strengthen oversight of the government surveillance programs. Representatives from the NSA and Justice Department testified about the legality of the NSA's collection of all telephone records in the United States. But both Democratic and Republican Committee members expressed concern about the scope and secrecy of the program. EPIC has filed a petition with the U.S. Supreme Court challenging the legal authority of the FISA Court to authorize the NSA's program. For more information, see In re EPIC - NSA Telephone Records Surveillance. (Jul. 31, 2013)
- House Narrowly Defeats Bill to End NSA Domestic Surveillance Program: In a surprisingly close vote, the House of Representatives voted 217 to 205 not to suspend funding for the controversial NSA program that has resulted in the collection of all call records of all American telephone customers. The outcome followed intense lobbying by the Administration and leaders of the intelligence community. The measure was introduced by Justin Amash (R-MI) and John Conyers (D-MI). EPIC has filed a petition with the US Supreme Court, charging that the program violates section 215 of the Patriot Act. A decision by the Court is expected in early October. For more information, see EPIC - In re Electronic Privacy Information Center. (Jul. 25, 2013)
- FISA Court Renews Unlawful Surveillance Program, DOJ Defends Program: According to the Director of National Intelligence, on July 19, 2013 the Government "filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the Court renewed that authority." In a separate filing, in a July 18 response to a challenge brought by the ACLU, the Department of Justice said that a federal district court in New York could not overturn the order of the FISA court. And in a July 16 letter to Congressman Sensenbrenner the Department asserts that "because the telephony metadata must be available in bulk to allow the NSA to identify records of terrorist communications, there are 'reasonable grounds to believe' that the data is relevant to an authorized investigation. EPIC has recently filed a petition with the US Supreme Court, challenging the lawfulness of the NSA domestic surveillance program. For more information, see EPIC - In re Electronic Privacy Information Center. (Jul. 22, 2013)
- EPIC Updates Congress on Organization's Response to NSA Surveillance: EPIC has sent a letter to the House Judiciary Committee describing EPIC's response to the NSA domestic surveillance program in anticipation of a hearing on FISA oversight. "In our view, the secret court simply lacks the legal authority to authorize this program of domestic surveillance," EPIC writes. EPIC has filed a petition with the U.S. Supreme Court challenging the Verizon Order issued by the Foreign Intelligence Surveillance Court. EPIC is also petitioning the NSA to create public rules governing its surveillance authorities. For more information, see In Re EPIC and EPIC: NSA Petition. (Jul. 16, 2013)
The Verizon Order
On June 5, 2013, a secret Foreign Intelligence Surveillance Court ("FISC") order allowing the Federal Bureau of Investigation ("FBI") and the National Security Agency ("NSA") to obtain vast amounts of telephone call data of Verizon customers was made public. The order, issued April 25, 2013, does not link this data collection to any specific target or investigation, but instead grants sweeping authority compelling Verizon to produce 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." As a result, the NSA collected the telephone records of millions of Verizon customers, including those who only make calls to other U.S. numbers. Senator Diane Feinstein, Chairwoman of the Senate Intelligence Committee, has confirmed that this FISC Order is part of an ongoing electronic communications surveillance program that has been reauthorized since 2007. EPIC is a Verizon customer, and has been for the entire period the FISC Order has been in effect. Because the FISC Order compels disclosure of "all call detail records," EPIC's telephone metadata are subject to the order and have been disclosed to the NSA.
The NSA's History of Domestic Electronic Surveillance
The NSA has coordinated signals intelligence activities since its inception in 1952. Despite its directive to collect and analyze foreign intelligence, the NSA has often engaged in domestic surveillance. In the mid 1970s, the Church Committee discovered that the NSA had routinely collected the private communications of U.S. persons from U.S. telegraph companies through 1975 under Operation SHAMROCK. The NSA also targeted the international communications of specific American citizens from the 1960s through 1973. More recently, the NSA collaborated with other intelligence organizations on a program known as "ECHELON," a data sharing agreement involving the UK, the USA, Canada, Australia and New Zealand for the purposes of intelligence interception. ECHELON allowed for the automatic pooling of all signals intelligence data. The NSA is currently building a $2 billion data center in Bluffdale, Utah that will encompass 1 million square feet, with 100,000 square feet reserved for servers.
"Congress passed the Foreign Intelligence Surveillance Act in 1978 to prevent the indiscriminate and invasive domestic surveillance of Americans by government intelligence agencies." - EPIC Mandamus Petition
Originally passed in 1978, the Foreign Intelligence Surveillance Act ("FISA") established a set of rules to govern collection of data from targets with foreign connections. While ordinary law enforcement surveillance was subject to the more stringent guidelines of the Wiretap Act (later amended by the Electronic Communications Privacy Act), FISA offers the government greater leeway when surveillance is used to collect "foreign intelligence." FISA initially covered only electronic eavesdropping, but was subsequently amended to include other types of surveillance as well.
The USA PATRIOT Act, Section 215
Passed in 2001, the USA-PATRIOT Act added several amendments to the FISA. Notably, section 215 of the Act, known as the "Business Records Provision," authorizes the collection of "any tangible things" when the government can show "reasonable grounds" that such a collection is "relevant to an authorized investigation" to obtain foreign intelligence or protect against international terrorism. Compared to the original standard in the FISA, which allowed for surveillance only if the government could show that the target was a foreign power or an agent of a foreign power, this provision greatly expanded the volume of communications accessible under FISA.
Section 215 also requires the Attorney General to enact minimization procedures to limit the dissemination and retention of data incidentally collected on United States persons that serves no foreign intelligence purpose. These procedures have not yet been made public.
The Foreign Intelligence Surveillance Court
FISA established a special court called the FISC, composed of 11 federal district court judges designated by the Chief Justice. The FISC reviews the government's applications for authorization of foreign intelligence surveillance, including applications for surveillance of specific targets as well as applications for business records under section 215. All proceedings of the FISC are classified and closed to the public. The government's applications are made without any opposing party present at the court. The FISA and the Court rules dictate that only the holder of the business records may challenge an order before the FISC.
In reviewing an application for business records, a FISC judge must find that there are "reasonable grounds" to believe that the tangible things sought are relevant to an authorized investigation. In 2012, 212 applications for business records were made to the FISC. The FISC granted all of these applications.
Though the FISC's initial determination is non-adversarial and made only based on the statement of facts presented by the government, the recipient of a FISC order may challenge the order in accordance with rules published by the FISC. If a FISC judge finds that the order is unlawful or does not comply with other parts of section 215, the judge may modify or set aside the order. Any decision made by the FISC in review of an order may also be reviewed by the FISC court of review, should the government or the recipient of a FISC order wish to challenge the FISC's review of an order. Only the government and the recipient of a FISC order may petition for review in the FISC or the FISC court of review.
EPIC petitioned the Supreme Court to halt the disclosure of the telephone records of millions of Americans, arguing that the FISC did not have legal authority to compel Verizon to turn over all domestic telephone "metadata" to the NSA.
- "Whether the Foreign Intelligence Surveillance Court exceeded its narrow statutory authority to authorize foreign intelligence surveillance, under 50 U.S.C. 1861, when it ordered Verizon to disclose records to the National Security Agency for all telephone communications 'wholly within the United States, including local telephone calls.'"
- "Whether Petitioner is entitled to relief pursuant to 28 U.S.C. 1651(a) to vacate the order of the Foreign Intelligence Surveillance Court, or other relief as this Court deems appropriate."
EPIC's Mandamus Petition
EPIC sought a writ of mandamus from the Supreme Court to vacate the Verizon Order. A writ of mandamus is a command by a higher court to a lower court or government official. Mandamus is appropriate when a lower court has exceeded its lawful authority. The United States Supreme Court has laid out three conditions that must be fulfilled before a writ of mandamus can be issued: (1) the party must have no other adequate means to attain the relief they deserve, (2) the party must satisfy the burden of showing that their 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.
"Mandamus relief is warranted because the FISC exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation." - EPIC Mandamus Petition
In this case, EPIC cannot gain relief from any other court other than the Supreme Court. Normally, when a court issues an unlawful order, the adversely affected parties can intervene or appeal to a higher court. However, the FISC and Foreign Intelligence Surveillance Court of Review are the only courts with jurisdiction to hear petitions by the Government or recipients of the FISC Order. Neither party to the order represents EPIC's interests. As EPIC is not a recipient of the order, it cannot challenge it in the FISC. Other federal and state trial and appellate courts have no jurisdiction over the FISC, and therefore cannot grant relief.
The FISC order exceeded the scope of the FISC's jurisdiction under the FISA. The FISA requires that production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. . ." However, we now know that the FISC issued an order requiring disclosure of records for all telephone communications "wholly within the United States, including local telephone calls." It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation. Such an interpretation would eliminate the FISA's core limiting principle and check on executive authority. A writ of mandamus is a proper judicial remedy to rectify the FISC's exceeding of its statutory authority.
"To define the scope of the records sought as 'everything' nullifies the relevance limitation in the statute. If law enforcement has 'everything,' there will always be some subset of 'everything' that is relevant to something. At that level of breadth, the relevance requirement becomes meaningless." - EPIC Mandamus Petition
The NSA surveillance has created extraordinary circumstances. The records acquired by the NSA under the FISC Order detail the daily activities, interactions, personal and business relationships, religious and political affiliations, and other intimate details of millions of Americans. Surveillance of all domestic telephone records exposes confidential and privileged associations. It chills free expression − political, associative, religious, or otherwise. And because the NSA sweeps up judicial and Congressional communications, it inappropriately concentrates power to the Executive Branch by allowing them to surveil the constitutionally mandated roles of the other branches of government.
The FISC Order also mandates that Verizon produce data about EPIC's confidential attorney-client relationships and other privileged information. At present, EPIC is in litigation with both the NSA and FBI, the two agencies responsible for tracking Americans' private communications under this order. EPIC also has ongoing FOIA lawsuits against other elements of the Intelligence Community, including the Office of the Director of National Intelligence and the Central Intelligence Agency. Further, by ordering surveillance of all Verizon customers, the FISC permitted the NSA to gather the metadata of EPIC's conversations with consumers, advisors and advisees, donors, other privacy advocates, Members of Congress, agency officials, and journalists. This surveillance chills those communications and associations that are protected by the First Amendment.
"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." - EPIC Mandamus Petition
For these reasons, EPIC asked the Supreme Court to issue a writ of mandamus and prohibition to stop the order of the FISC court, or to grant a writ of certiorari to review the legality of its order. However, on November 18, 2013, the Supreme Court declined to hear EPIC's writ of mandamus without comment.
Privacy Law Scholars Argue That NSA Telephone Surveillance Is Unlawful
A group of leading professors of privacy and surveillance law have written a "friend of the court" brief supporting EPIC's mandamus petition to the U.S. Supreme Court. The professors analyze in detail the NSA's claimed legal authority for the program, Section 215 of the Patriot Act, and find that the bulk collection of telephone metadata is unlawful. "The government's defense of the Verizon Order reflects a significant rewriting of the law and permits the illegal construction of a comprehensive database of data about U.S. persons' communications." The brief focuses on the language of the Foreign Intelligence Surveillance Act (FISA) and the Patriot Act to argue that the FISA Court did not have authority to order Verizon to produce all domestic call detail records. The professors explain that 1) the program does not meet the strict legal standard of the statute's text, 2) the program is contrary to the Executive Order governing intelligence operations, and 3) the domestic telephone surveillance program violates provisions of the Patriot Act that safeguard First Amendment-protected speech.
Former Church Committee Members and Law Professors Outline History of Domestic Surveillance and the Need for Oversight
Former Vice President Walter Mondale and former Senator Gary Hart, members of the 1970's Church Committee, joined by constitutional law expert Erwin Chemerinsky and twenty-eight other law professors, have filed a "friend of the court" brief in support of EPIC's mandamus petition to the U.S. Supreme Court. The amici describe how the NSA has a history of conducting broad and invasive domestic surveillance under the guise of foreign intelligence programs. "The illegal activities, abuse of authority, and violations of privacy uncovered by the [Church] Committee spurred Congress to pass the Foreign Intelligence Surveillance Act." The brief discusses two unlawful NSA programs: Project MINARET, which warrantlessly monitored communications of U.S. citizens on a government watchlist, and Operation SHAMROCK, which intercepted international telegraph traffic passing through the U.S. The FISA, the amici explain, was meant to stop these sorts of programs and prevent agencies from using foreign intelligence authorities as an excuse for domestic surveillance.
Federal Courts Scholars Argue That the Supreme Court Has Jurisdiction to Grant Mandamus Relief
Professors James E. Pfander and Steven I. Vladeck have filed a "friend of the court" brief in support of EPIC's mandamus petition to the U.S. Supreme Court. The amici argue that the Supreme Court has the power to grant mandamus relief in this case because the writ of mandamus "would be in aid of the Court's appellate jurisdiction," and because "adequate relief for Petitioner's claims cannot be obtained in any other form or from any other court." The amici also argue that EPIC clearly has Article III standing to seek relief because its telephone records are subject to the Verizon order. The brief makes clear that review of the unlawful FISC order is properly before the Supreme Court, and that the Court has the power to grant the relief that EPIC seeks.
Cato Institute Argues That the Verizon Order Is Unconstitutional
The Cato Institute has filed a "friend of the court" brief in support of EPIC's mandamus petition to the U.S. Supreme Court. Cato argues that the Verizon order is not only unlawful under the FISA, it is unconstitutional. Cato argues that the Verizon order is a "general warrant," which the Fourth Amendment was designed to prevent, and that the Court's recent decision in United States v. Jones shows that "EPIC has a legal and constitutional interest in data about its telephone calls." The brief makes clear that the bulk collection of domestic telephone records is an unlawful and unconstitutional interference with the property and statutory rights of EPIC and other Verizon customers.
Supreme Court Docket
- EPIC Mandamus Petition to the Supreme Court (July 8, 2013)
- EPIC Letter Notifying the Court of a Recently Released FISC Opinion (Oct. 7, 2013)
- Brief for the United States in Opposition (Oct. 11, 2013)
- EPIC Reply to Brief for the United States in Opposition (Oct. 28, 2013)
- Amici Curiae Briefs in Support of EPIC
- Brief of Amicus Curiae Professors of Information Policy and Surveillance Law in Support of Petitioner
- Brief of Amicus Curiae Former Members of the Church Committee and Law Professors in Support of Petitioners
- Brief of Amici Curiae Professors James E. Pfander and Stephen I. Vladeck in Support of Petitioner
- Brief of Amicus Curiae Cato Institute in Support of Petitioner
- Amended Memorandum Opinion and Primary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring Production of Tangible Things from [REDACTED], BR 13-109 (FISC Aug. 23, 2013) (Granting Order for Bulk Metadata Collection Under Section 215)
- Secondary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from Verizon Business Network Services Inc. on Behalf of MCI Communication Services Inc. D/B/A Verizon Business Services, BR 13-80 (FISC Apr. 25, 2013) (Verizon Order)
- Primary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from Verizon Business Network Services Inc. on Behalf of MCI Communication Services Inc. D/B/A Verizon Business Services, BR 13-80 (April 25, 2013)
- In re Production of Tangible Things from [REDACTED], BR 08-13 (FISC Dec. 12, 2008)
- White House, "Adminstration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act," Aug. 9, 2013
- Nat'l Sec. Agency, "The National Security Agency: Missions, Authorities, Oversight and Partnerships," Aug. 9, 2013
- President Barack Obama, discussing the NSA domestic surveillance programs at the White House, C-SPAN, Aug. 9, 2013
- Off. of the Dir. of Nat'l Intelligence, "Foreign Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata," July 19, 2013
- Robert Litt, Off. of Dir. of Nat'l Intelligence General Counsel, Remarks on "Privacy, Technology, and National Security" at the Brookings Institution, July 19, 2013
- General Keith Alexander, Director of NSA, speaking about surveillance at the Aspen Institute, July 18, 2013
- Raj De, NSA General Counsel, and others discuss "Counterterrorism, National Security, and the Rule of Law" at the Aspen Institute, July 18, 2013
- Department of Justice letter to Judge William Pauley, U.S. District Court for the Southern District of New York, regarding ACLU v. Clapper, 13 Civ. 03994, July 18, 2013
- Department of Justice letter to Rep. James Sensenbrenner, House Judiciary Committee, July 16, 2013
- Dep't of Justice, Off. of Legislative Aff., Letter to Senators Diane Feinstein and Saxby Chambliss, Senate Intelligence Committee, regarding Patriot Act Section 215, Feb. 2, 2011
- Dep't of Justice, Off. of Legislative Aff., Letter to Rep. Silvestre Reyes, House Intelligence Committee, regarding Patriot Act Section 215, Dec. 14, 2009
- David Kris, On the Bulk Collection of Tangible Things, 1 Lawfare Rsch. Paper Series 4 (2013)
- EPIC - Foreign Intelligence Surveillance Act (FISA)
- EPIC - USA PATRIOT Act
- EPIC - NSA: Verizon Phone Record Monitoring
- EPIC - Petition to the NSA under the Administrative Procedures Act
- EPIC - Wiretapping
- EPIC - Foreign Intelligence Surveillance Court (FISC)
- Justices Reject Challenge to NSA Spying, New York Times (Nov. 18, 2013).
- Challenge to NSA Spying Pressed, SCOTUSblog (Oct. 28, 2013).
- Solicitor General Responds to an EPIC Mandamus Effort, Lawfare (Oct. 23, 2013).
- The Government's Initial Supreme Court Filing on the Section 215 "Telephony Records Program", Marty Lederamn, Just Security (Oct. 14, 2013)
- DOJ: If We Can Track One American, We Can Track All Americans, ArsTechnica, Oct. 12, 2013
- My Cato Brief in Support of The Electronic Privacy Information Center’s Challenge to NSA Data Seizures, Volokh Conspiracy, Aug. 13, 2013
- In re: Electronic Privacy Information Center, Cato Institute, Aug. 13, 2013
- The Lies Aren't What Makes Obama's NSA Stance So Awful, The New Republic, Aug. 12, 2013
- NSA Surveillance Needs More Than Windowdressing Reform, HuffPo (Aug. 10, 2013)
- Opinion: How secrecy erodes democracy, Politico - Special by Rep. Jim Sensenbrenner, July 22, 2013
- Opinion: Supreme Court must protect our privacy from the government, CNN - Special by Marc Rotenberg, July 17, 2013
- The Petition for Immediate Supreme Court Review of a Foreign Intelligence Surveillance Court Order Raises Thorny Procedural Issues, Justia (July 15, 2013)
- Why the Snowden Leak(s) Should Result in a Supreme Court Review of the FISA Court’s Verizon Order, Justia (July 12, 2013)
- Fed Surveillance More Widespread Than You Think, CBN News (July 11, 2013)
- EPIC asks court to review NSA surveillance, Associated Press (July 11, 2013)
- Editorial: Privacy and the FISA court, L.A. Times (July 10, 2013)
- Experts Debate Legal Questions Surrounding U.S. Surveillance Efforts, Bloomberg BNA (July 10, 2013)
- The Supreme Court's Power to Hear In re EPIC, Lawfare (July 10, 2013)
- A Close Look at The Unusual EPIC Writ That Bypasses Lower Courts, FindLaw (Jul. 10, 2013)
- Supreme Court asked to stop NSA telephone surveillance, CNN, July 9, 2013
- Could the Supreme Court stop the NSA?, Wash. Post (July 9, 2013)
- Discussion of the NSA surveillance program on The Charlie Rose Show, NBC (July 8, 2013)
- Editorial: The Laws You Can't See, N.Y. Times (July 8, 2013)
- Privacy Group Petitions Supreme Court to Stop NSA Phone Surveillance, Slate (July 8, 2013)
- Privacy group challenges NSA phone surveillance in Supreme Court petition, The Verge (July 8, 2013)
- An EPIC Effort to Combat the Dragnet, EmptyWheel (July 8, 2013)
- Privacy Group Electronic Privacy Information Center (EPIC) To File Emergency Petition Against NSA With United States Supreme Court, Int'l Bus. Times (July 8, 2013)
- Supreme Court asked to stop NSA telephone surveillance, CNN (July 8, 2013)
- US privacy group challenging NSA and FBI collection of phone records, The Guardian (July 8, 2013)
- Privacy Group Asks Supreme Court to Halt NSA Phone Spying, Wired (July 8, 2013)
- EPIC Files Petition in SCOTUS Regarding FISC Section 215 Order, Lawfare (July 8, 2013)
- Supreme Court asked to halt NSA phone surveillance, Ars Technica (July 8, 2013)
- EPIC wants to sue NSA at the Supreme Court, Boing Boing (July 8, 2013)
- Challenge to global phone taps, SCOTUSblog (July 8, 2013)
- EPIC to sue over NSA surveillance, USA Today (July 8, 2013)
- EPIC to ask Supreme Court to halt NSA phone spying, The Hill (July 8, 2013).
- Privacy Group to Ask Supreme Court to Stop N.S.A.’s Phone Spying Program, N.Y. Times (July 8, 2013).
- Secret Court's Redefinition of 'Relevant' Empowered Vast NSA Data-Gathering, Wall St. J. (July 7, 2013).
- In Secret, Court Vastly Broadens Powers of N.S.A., N.Y. Times (July 6, 2013)
- U.S. Confirms That It Gathers Online Data Overseas, N.Y. Times (June 6, 2013)
- NSA collecting phone records of millions of Verizon customers daily, The Guardian (June 5, 2013)