Can Supreme Court Stop NSA Surveillance?

By Brett Snider, Esq. on July 09, 2013 | Last updated on March 21, 2019

The U.S. Supreme Court has seen fit to stop a number of socially abhorrent institutions in the last century, but it doesn't seem likely to put a stop to NSA surveillance.

Still, lawyers for the Electronic Privacy Information Center (EPIC) are hoping that they can succeed in dismantling the National Security Agency's system of monitoring phone records, particularly through Verizon, by appealing directly to the U.S. Supreme Court, reports CNN.

Despite EPIC's desire for electronic privacy for U.S. citizens, general appeals of this nature aren't very successful.

EPIC's Claim

The privacy interest group EPIC filed a petition to have an order for Verizon to produce phone records struck down, claiming that as a Verizon subscriber, EPIC's own personal confidential data is at stake.

The order in question comes from the Foreign Intelligence Surveillance Court, the same court responsible for signing the orders to collect data under the PRISM project.

EPIC's president claims that allowing the NSA access to these Verizon call records, "even without the content of the calls, can reveal an immense amount of sensitive, private information." He also claims the agency lacks "reasonable grounds" for such unfettered access, reports CNN.

Standing Required

Unfortunately for cases like EPIC's claim, issues presented before the U.S. Supreme Court (and indeed, any federal court) must have standing -- including an actual cognizable injury that the court can remedy.

In a similar case involving surveillance under the Foreign Intelligence Surveillance Act (FISA), the Supreme Court dismissed the case because the complainants could not produce evidence that the government had actually surveilled them, despite the notable problem of producing evidence of a secret spy program.

Even if the Court chooses to hear this case, which it likely won't, it could easily dismiss the claim because EPIC has yet to show that this order will lead to surveillance of their Verizon phone records. If EPIC has no real stake in the case, then there's no standing.

Roads to the Supreme Court

In addition to the standing problem, EPIC chose to file its appeal of the FISC order directly with the Supreme Court and not with a federal district court.

Generally, the Supreme Court does not have the jurisdiction to hear cases which have not been litigated at some lower court. Only in rare cases does it have original jurisdiction to hear a case.

EPIC has attempted to shortcut this by filing a writ of mandamus, which would attempt to have the Supreme Court review the FISA court's order without any prior federal cases or appeals.

The Supreme Court has historically refused to hear cases which, on procedure and merit, were filed more carefully than EPIC's. So this plea for the Court's attention is very unlikely to stop any NSA surveillance of Verizon phone records.

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