Supreme Court Refuses To Hear EPIC Challenge To NSA Surveillance

Trailrunner7 writes "The challenge to the NSA's domestic surveillance program filed with the Supreme Court by the Electronic Privacy Information Center ended Monday, with the court refusing to consider the challenge at all. EPIC had filed the challenge directly with the Supreme Court rather than going through the lower courts. EPIC, a non-profit organization involved in privacy policy matters, had asked the court to vacate an order from a judge in the Foreign Surveillance Intelligence Court that had enabled the NSA's collection of hundreds of millions of Verizon call records under the so-called metadata collection program. The challenge hinged on the idea that the FISC had gone outside of its authority in granting the order."

Comments

EPIC fail

[sunsurfandsand]

I hate it when that happens.

Calling China right now

[bob_super]

Sounds like we're going to need a reliable supplier of pitchforks soon.

Re:Calling China right now

[cold fjord]

No, what's needed is a source of sound legal advice and strategy. EPIC's strategy was fatally flawed from the beginning. Their failure should have been easily foreseen by just about anyone with a more than passing familiarity with the US legal system. It was a self-frag.

Re:Calling China right now

[Runaway1956]

I hate to say it, but you're right. The judicial branch of government runs on precedent and tradition, unless and until it is convenient for them to counter precedent and tradition.

IANAL, but I'm not aware of any cases being taken directly to the Supreme Court like Epic tried to do. Everything runs through the lower courts, even if the Supreme Court is the intended goal.

Re:Calling China right now

[Shakrai]

Uh, I hate to be the one to point out the fucking obvious here, but a "passing familiarity" with the law would be called the Constitution, and more specifically, the Fourth Amendment within that protects every citizen from such bullshit.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Which part of that Amendment specifically mentions the "bullshit" that we're talking about in this discussion?

The framers of the Constitution knew that they could not encompass every conceivable possibility into the document, or into those amendments that were later added. That's why we have courts, who interpret the document, and decide as best they can how to apply it to the issue before them.

So, you have the right to be secure in your "papers", and said right is protected by the 4th Amendment. The question you have to ask yourself is whether or not your papers include metadata stored on Verizon's system? That's a question for the courts, since it's obviously beyond the scope of the Constitution, and when that question has been asked in the past (the relevant precedent involves pen registers) the Courts have been fairly consistent in saying that you forfeited the expectation of privacy when you shared information with a third party, i.e., the phone company.

Now, one may argue that precedent was decided incorrectly and should be reversed. What one can't do (well you can, it's just unproductive) is scream about the 4th Amendment without any in-depth discussion of how that Amendment is interpreted by the courts, how we apply it to modern times with technologies that were unheard of when it was written, and how the case law as evolved over the years as those technologies have been developed.

Re:Calling China right now

[bob_super]

With 300 million Americans, minus the top 5% who won't willingly participate, that puts the revolution around the year 4400.
I can't do it on that day, I have a swimming class.

Maybe we have to switch weapons and learn from the Finns about throwing smartphones. The ones without the rounded corners.

No surprise

[cold fjord]

EPIC tried to jump the line - they didn't follow the proper appeals process. That is highly frowned upon by the legal system and rarely succeeds. No surprise in this outcome. And nobody should read anything into it either way. One of the existing or future challenges may succeed as it works its way through the court system.

Re:No surprise

[Daniel_Staal]

Also: Congress is working on this issue. The Supreme Court really doesn't like to step on the toes of the other two parts of the government if it doesn't have to. Looking at the activity on this issue, it's likely they won't have to.

Re:No surprise

[TubeSteak]

From their petition:

15
The FISC and Foreign Intelligence Surveillance Court of Review ("Court of Review") only
have jurisdiction to hear petitions by the Government
or recipient of the FISC Order, and neither party to
the order represents EPIC's interests. Other federal
courts have no jurisdiction over the FISC, and thus
cannot grant the relief that EPIC seeks.

The only people that can appeal the order are the Feds and the people that the feds are ordering around.
EPIC, despite having their metadata vacuumed up, have no standing under the law to appeal to the FISA court.

It's easy for you and others to say "[Epic] didn't follow the proper appeals process"
but AFAIK none of you have actually elucidated what the proper appeals process is under the law.

EPIC has, with citations, laid out their case, starting on Page 14 (PDF)
"Nuh uh" isn't an insightful or interesting rebuttal.

Re:No surprise

[Hatta]

Congress is working on what exactly? Amending the Constitution? That's what it would take to make any of this generalized warrantless surveillance legal.

Re:No surprise

[cold fjord]

Because the lower court cases establish the facts and legal questions at hand. They establish a record for the appeals courts to consider. It gives a change for more legal minds to consider it and provide input to the system. It also allows cases in multiple jurisdictions to more fully develop the issue. It also gives an opportunity for the political system to correct the problems - if there is one, without the court having to act. The case may resolve itself for various reasons.

The thing to remember is that when the Supreme Court decides an issue, it is decided, for better or worse. You may not like the outcome, and the resulting precedent. That is why advocacy groups tend to pick their cases for appeal carefully, as well as their arguments. EPIC was reckless.

Re:No surprise

[sl4shd0rk]

Also: Congress is working on this issue.

That's good to hear. I was afraid the issue may otherwise be left to a group of incompetent, self-serving asshats.

Re:No surprise

[Runaway1956]

I thought it was obvious, but the majority of congress critters were unaware of how pervasive NSA spying is. A number of them were shocked to learn how powerful NSA has grown. It's not even really clear that the committee members responsible for national security understood.

Some of those shocked congress critters are, indeed, exploring avenues to reign in the intel communities. Ineffectively exploring, for sure, but they are doing what their feeble little minds are capable of.

But, there is a danger here, that we should all be aware of. Any congress critter who makes to much noise may be targeted by the NSA, and quietly blackmailed to shut the hell up. I really don't think the Secret Service can protect a congress person from the NSA and the rest of the intel apparatus. There is really no telling what has happened behind the scenes. Does kristallnacht ring any bells?

Re:No surprise

[ColdWetDog]

Congress is working on what exactly?

Fucking things up. What else?

Re:No surprise

[Antipater]

Eh? The Night of the Long Knives took place in 1934, four years before Kristallnacht. Street violence from the brownshirts was a major factor leading to the Long Knives, sure, but at that time it was random and unfocused, just drunken brownshirts beating up anyone they saw. Kristallnacht was specifically focused against Jews.

Re:Which is funny

[Runaway1956]

Yes - you're right. The intel community is indeed trashing the constitution. But - if we are going to defend the constitution, then we need to do it in a constitutional manner. File suit, and win - OR, file suit, be defeated, appeal, be defeated again, appeal again, THEN argue your case in front of the Supremes.

Hey, I don't really like it. It's time consuming, and wasteful, as you suggest. The only other way to put the NSA in it's place, is to have congress just pass some laws defining what is legal, and start defunding the illegal activities.

The remaining alternative is wasteful in terms of human life, as well as money and material. Revolutions can be like that.

Re:See, you really are Serfs

[lagomorpha2]

"Even citizens with rights have to follow procedure."

So what you're saying is in order to remove all our rights all the government has to do is make the procedures difficult and esoteric enough that no one could follow them? I hate to bring up Kafka in situations like this but this seems a bit too like something out of Kafka.

Re:Which is funny

[bill_mcgonigle]

Why is it that you can get arrested for smoking a joint, but when it comes to violating the constitution it seems that the worst punishment is "we'll cut your funding"?

Because the CIA funds its black ops with money from drug running, so it has to remain very illegal to keep the prices up.

Who do you think is really controlling things, the Congress or the permanent bureaucracy that makes the outcomes of elections largely meaningless?