Monday, the U.S. Supreme Court decided not to hear a case regarding a legal challenge to the National Security Agency’s (“NSA”) bulk collection and storage of millions of American’s telephone records. The rejected challenge was brought by the Electronic Privacy Information Center (“EPIC”), a public interest research group based out of Washington D.C. that attempts to focus the public’s attention on the erosion of civil liberties, privacy, and constitutional rights in the information age. The executive director of EPIC stated that the case was brought directly to the Supreme Court because the Foreign Intelligence Surveillance Act (“FISA”) provides no provision for American citizens to bring suit to protect their privacy from government intrusion.
EPIC challenged the NSA’s record collection program on the grounds that the Foreign Intelligence Surveillance Court had exceeded its authority when it issued an order requiring Verizon to turn over all of its customer phone records to the FBI and NSA. EPIC’s main argument was that the order was overly broad, reasoning that it could not be possible that every Verizon phone record is relevant to national security. While the records themselves do not contain the content of conversations, they do reveal the date, time, call duration, and both of the phone numbers that participated in the call.
The primary issue is whether the statutory language of FISA authorizes the bulk collection of data. Opponents to the NSA’s record collection program argue that, before an order for the records of a telecommunications company can be made, the government must show that it has reasonable grounds to believe that the data is relevant to an authorized investigation. It would seem obvious that the government could not show that it had reasonable grounds to believe that every customer record from Verizon is relevant to an ongoing investigation.
Security officials argue that the NSA’s bulk collection of telephone records does not violate the privacy of American citizens because the NSA will only search its record database after there is “reasonable, articulable suspicion” that a phone number is related to a foreign threat to national security. One problem is that this standard is rather arbitrary. Further, FISA itself provides no language expressly authorizing this sort of action and that FISA’s “reasonable grounds” requirement was included to prevent this sort of broad dragnet.
Still, the Supreme Court was right to reject the case brought by EPIC because EPIC did not have legal standing to bring the case. EPIC did not have legal standing because only the government or the recipient of an order (Verizon in this instance) may appeal a decision of the Foreign Intelligence Surveillance Court. No recipient of a FISA order has attempted to challenge the order’s legality. Therefore, no matter your feelings on the NSA bulk collection programs, one thing is for sure, if the Supreme Court ever examines the controversial program, it will have to be brought by one of the telecommunications companies that has been ordered to produce its customer records.