Supreme Court refusal to block NSA data collection not surprising

With two cases pending in lower courts, justices probably wanted to defer decisions to them

Privacy rights advocates and legal experts this week said they were disappointed but not surprised with the U.S. Supreme Court's denial of a petition challenging the legality of the National Security Agency's phone metadata collection program.

The motion filed earlier this year by the Electronic Privacy Information Center (EPIC) had asked the high court to overturn an order by the Foreign Intelligence Surveillance Court (FISC) that required telecommunications giant Verizon to hand over all customer call records to the NSA.

In its brief, EPIC argued that the FISC had exceeded its legal authority in passing the order. "It is simply not possible that every phone record in the possession of Verizon is relevant to a national security investigation," EPIC stated in its argument.

The Supreme Court on Monday however declined to hear the case without explanation or comment.

"Obviously, we are disappointed by the Supreme Court's decision," said, Marc Rotenberg, president of EPIC. "The surveillance order was clearly unlawful. There is simply no way to establish relevance for the collection of all telephone records on all U.S. telephone customers for an intelligence investigation," he said in a statement.

EPIC is one of several groups that have challenged the legality of the NSA's blanket collection of phone records in the U.S. Two other cases similarly challenging the data collection are pending in federal district courts in New York and Washington D.C.

Former NSA contractor-turned-fugitive Edward Snowden leaked details of the program to several news media services earlier this year. The documents showed that the NSA has been systematically collecting call records from phone companies over the past several years.

The NSA has defended the practice by saying the data is essential to its ability to detect and deter those seeking to harm the U.S. The agency also claimed that it has the legal authority to collect the data under provisions of the U.S. Patriot Act.

Stephen Vladeck, a law professor at the American University Washington College of Law who filed a friend-of-the-court brief in support of the EPIC petition, said the ruling is not unexpected.

"It's not terribly surprising, especially given the ongoing challenges to the NSA's metadata collection currently proceeding in the D.C. and New York district courts," Vladeck said. "Indeed, I suspect that the justices would far rather wait to see what happens in the lower courts before deciding whether to weigh in as opposed to jumping the queue," he said.

Fred Cate, a law professor at the Indiana University Maurer School of Law, said that a writ of the sort filed by EPIC is always a long shot. "But I am disappointed because [the decision] effectively means that NSA surveillance is, at least for the moment, unreviewable by courts," he said.

Historically, courts have played a significant role in protecting civil rights and guarding against overreach by the government. "This week's decision undercuts that role since Congress gave exclusive authority to the Foreign Intelligence Surveillance Court and Review Court to hear cases involving domestic surveillance," he noted. "But only the government is empowered to appear before either court or bring cases before them."

This article, Supreme Court refusal to block NSA data collection not surprising, was originally published at Computerworld.com.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan or subscribe to Jaikumar's RSS feed. His e-mail address is jvijayan@computerworld.com.

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