Privacy Cases

In re EPIC – NSA Telephone Records Surveillance

US Supreme Court

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Petitioning the U.S. Supreme Court to Halt NSA Surveillance of Domestic Telephone Calls

“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

Factual Background

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.

The Foreign Intelligence Surveillance Act

“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’S Mandamus Petition to the Supreme Court

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.

Questions Presented

  1. “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.'”
  2. “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.

Amici Curiae in Support of EPIC’s Mandamus Petition

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

Supreme Court Documents

FISC Documents

  • 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)

Government Statements on the NSA Surveillance Programs

Resources

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