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NSA Spying Doesn't Reach Supreme Court Docket ... Yet

By William Peacock, Esq. on November 18, 2013 | Last updated on March 21, 2019

Though many of us would have liked to see the nation's High Court tackle the issue, the National Security Agency's domestic spying activities will have to wait for another day before reaching the Supreme Court. Earlier today, the Court declined to hear the case.

While it was a bit of a disappointing outcome, it was foreseeable. The case, brought by the Electronic Privacy Information Center, was seeking a writ of mandamus, a remedy rarely granted.

This Was About the Verizon Surveillance

Just to be clear, EPIC brought this case seeking to address the issue of the NSA-Verizon cell phone metadata collection program. EPIC alleges that they are customers of Verizon, yet were not made party to the secret court proceedings that resulted in a court order to turn over the call data.

A Writ Might've Been Their Only Way In

The Foreign Intelligence Surveillance Court doesn't allow customers to challenge FISA orders, nor does it allow appeals though the traditional court system. It is separate, secret, and pretty much inaccessible.

EPIC noted, in their petition:

[T]he FISA does not allow Verizon customers, including, EPIC to challenge the order or seek review of the order before the FISC or Foreign Intelligence Surveillance Court of Review ... Consequently, EPIC can only obtain relief with a writ of mandamus from this Court. Mandamus is an extraordinary remedy, but the Verizon Order carries extraordinary ramifications.

But, Really, They Had No Shot

Earlier this year, the Supreme Court decided Clapper v. Amnesty International, a case where the Court held that Amnesty International lacked standing to challenge the FISA because they could not prove that they had suffered an injury. Justice Alito called their fear of surveillance "highly speculative."

Obviously, this is a different case. That speculation has become certainty. Even still, the All Writs Act makes writs completely discretionary, and as we relayed when the petition was submitted, legal experts were speculating that despite the FISC's closed-and-separate nature, the language of the act would allow petitions for writs in that court, though without a right of appeal.

Discretion? And a possible alternate venue? This petition was almost certainly doomed from the start. We'll never know the real reason for the denial, however, as the Court's order did not elaborate beyond a single line order.

That being said, with the amount of litigation currently pending across the country regarding NSA surveillance, don't be surprised to see the issue finally reach First Street in a year or two, that is, if litigation doesn't moot the issue first.

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