Group to ask Supreme Court to stop NSA’s phone spying

James Risen / New York Times News Service /

Published Jul 8, 2013 at 05:00AM

WASHINGTON — A privacy rights group plans to file an emergency petition with the Supreme Court on Monday asking it to stop the National Security Agency’s domestic surveillance program that collects the telephone records of millions of Americans.

The group, the Electronic Privacy Information Center, says it is taking the extraordinary legal step of going directly to the Supreme Court because the sweeping collection of the phone records of U.S. citizens has created “exceptional circumstances” that only the nation’s highest court can address.

The group, based in Washington, also said it was taking its case to the Supreme Court because it could not challenge the legality of the NSA program at the secret court that approved it, the Foreign Intelligence Surveillance Court, known as the FISA court, and because lower federal courts did not have the authority to review the secret court’s orders.

In its petition, the group said the FISA court had “exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.”

The suit is the latest in a series of legal challenges to the NSA’s domestic spying operations that have been filed over the past month after disclosures by a former NSA contractor, Edward Snowden. Based on a document leaked by Snowden, The Guardian revealed early last month that the FISA court had issued an order in April directing Verizon Business Network Services to turn over all of the telephone records for its customers to the NSA. The secret court order was also published by The Guardian.

Within days of the disclosure of the court order, the American Civil Liberties Union filed suit in federal court in New York. Separately, Larry Klayman, a conservative lawyer who runs a group called Freedom Watch, filed a class-action lawsuit in federal court in Washington on behalf of Verizon customers.

Marc Rotenberg, the executive director of the Electronic Privacy Information Center, said his group’s lawsuit would be the first to directly challenge the legal authority of the FISA court to approve the phone records’ collection under the Patriot Act.

Alan Butler, a lawyer for the group, said the judge “lacked the authority to require production of all domestic call detail records.” He noted that the Patriot Act provision cited by the FISA court required that the business records produced be “relevant” to an authorized national security investigation. “It is simply implausible that all call detail records are relevant,” Butler said.

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