A privacy and free speech advocacy group has filed a petition with the Supreme Court challenging the legality of the National Security Agency’s surveillance program using Verizon’s customer data.
The Electronic Privacy Information Center (EPIC) wants the Supreme Court to review the court order which approved Verizon to gather customer meta data and hand it over to the NSA, according to the petition filed Monday. EPIC wants the court to either overturn it and ban future orders, or review whether the Foreign Intelligence Surveillance Court had the authority to issue such an order in the first place.
The FISA court doesn’t have the authority to “require production of all domestic call detail records,” EPIC’s lawyers argued in the petition. The group is also going straight to the Supreme Court because regular state and federal courts don’t have oversight over the secretive court.
Early last month, The Guardian posted details of a top secret Foreign Intelligence Surveillance Court opinion ordering Verizon Business to hand over call metadata for all its customers to the NSA. The data included phone numbers of both parties involved in all calls, the International Mobile Subscriber Identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls, according to the report. While The Guardian didn’t have further information, the assumption is that the court is signing off on similar orders for other telecommunications companies.
Government officials have defended the order, and the NSA program, saying it was using the powers as granted by the Patriot Act, enacted shortly after the terror attacks in 2001. Section 215 of the Patriot Act allows the Foreign Intelligence Surveillance Court to authorize broad warrants for almost any kind of records. The government only needs to show that the information is relevant to an authorized investigation to request those records.
“It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation,” EPIC’s lawyers said.
Because all records cannot be part of an ongoing investigation, this level of surveillance is “beyond the authority granted by Congress to the FISC,” according to the petition.
The judge “lacked the authority to require production of all domestic call detail records,” Alan Butler, an EPIC lawyer told The New York Times.
In the past, the Supreme Court has refused to hear cases challenging the Foreign Intelligence Surveillance Act, claiming that while it was possible that the surveillance may have caused harm, there was no way to prove it. EPIC’s lawyers believe that by pointing out how extensive the Verizon order is would help determine harm in this suit.
“By ordering surveillance of all Verizon customers, the FISC permitted the NSA to gather the metadata of EPIC’s conversations with consumers, advisors and advisees, donors, other privacy advocates, Members of Congress, agency officials, and journalists,” the petition said.
While Congress has repeatedly renewed the act over the years, there seems to be some action towards limiting the scope of the law and enacting stronger privacy legislation. Sen. Patrick Leahy (D-VT) has proposals on the floor to make amendments to FISA and the Patriot Act expire faster. Other Senators plan to reform the Electronic Communications Privacy Act to make it harder for agencies besides the NSA to access email records.
The White House has defended the program, arguing that actual contents of the call was not collected, and that the collected information helped thwart potential threats.
Until then, many users are frustrated, since it’s not as if there is a way to opt-out of the surveillance. Sites such as prism-break.org are giving instructions on how to use Tor, various Internet software, and browser plugins to make it harder for online activity to be collected and monitored.
“Use a combination of Tor Browser and another free browser to surf the Web. Try to use Tor for everything. Browsing the Web may be a bit slower, but it’s far more secure,” the site recommends.