Going for an EPIC win: Privacy Center takes NSA directly to the Supreme Court over domestic spying

The Electronic Communication Privacy Center (EPIC) yesterday filed and extraordinary suit against the NSA for the scale and scope of it's domestic wiretapping program. The suit, filed as a Writ of Mandamus, seeks to overturn an order from the Foreign Intelligence Surveillance Court instructing Verizon to hand over metadata on all of it's domestic customers. The order was first revealed in the Guardian newspaper last month by whistle-blower Edward Snowden. The suit seeks to challenge the interpretation of the FISA law by the court which is seen as over broad and based on secret court decisions that have not been permitted to be read by previous challengers to various NSA wiretapping programs.

According to EPIC's Executive Director, Mark Rotenburg, the Center is able to bring suit because they themselves are Verizon customers and "represent many clients against the government on Freedom of Information Act cases. Thus we have significant attorney client concerns." Rotenburg is a renowned lawyer in the field of information privacy and teaches electronic privacy law at Georgetown University and has "…never seen a FISA court order so broad. We were shocked, literally shocked."

The Center chose to take the case directly to the Supreme Court because "It's the only venue. It's really the last place we can go." according to Alan Butler, who is appellate counsel there.

Butler stated that the Center is seeking a narrow decision to attack the court order as out of line with both the Patriot Act and the original laws creating the FISA court in the 1970s. The Center hopes this will allow future suits by other parties because "Both the [service] providers and the [intelligence] agencies can use this order as a shield against a constitutional challenge."

During an interview with the Columbus Free Press, Butler mentioned a previous court challenge, Clapper vs. Amnesty International, where the Supreme Court ruled that Amnesty had no standing to sue because they could not prove that they themselves were being wiretapped. Amnesty International's headquarters is in the United Kingdom and they are not subject to the same protections as domestic phone and internet users. Snowden's revelation of the Verizon order now offers previously secret proof of wiretapping and thus opened the door to a direct challenge of the Obama administration's secret interpretation of secret court cases and secret legal opinions.

Since the Guardian began its reporting on the scale and scope of America's worldwide surveillance apparatus, it has been revealed that most major internet providers as well as phone carriers constantly turn their customer's private data over to the intelligence community either unwittingly or by court order.

EPIC's suit has already had a ripple effect in the court system. According to CNET and Salon, a 2008 lawuit filed by the Electronic Frontier Foundation, Jewel vs NSA, got a boost this morning. A federal judge ruled that “[g]iven the multiple public disclosures of information regarding the surveillance program, the Court does not find that the very subject matter of the suits constitutes a state secret.” The judge further ruled that the "procedural mechanism" of the FISA court “preempts application of the state secrets privilege.” Thus the use of the state secrets shield against public and judicial scrutiny is begining to crumble within 24 hours just as Butler predicted.

The government has 30 days to respond the mandamus filing. The Center has successfully solicited three separate amicus briefs from law professors at Georgetown, Indiana University and Stanford. Rotenburg has stated that more amicus briefs may be forthcoming from other parties. The Supreme Court will hear the case in conference in September or October. The Free Press will continue to follow this issue closely. It appears to be the first case to result from the recent round of revelations about the governments vast domestic spying program.