Supreme Court Shouldn't Review NSA Spying Case, US Gov't Says

Privacy watchdog EPIC doesn't have standing to ask the court to vacate a phone records order nor to review its legality, the DOJ says

A privacy group lacks legal standing to challenge a U.S. National Security Agency data collection program, and the U.S. Supreme Court doesn't have jurisdiction to grant the group's request for it to review the program's legality, lawyers for President Barack Obama's administration have argued.

The Electronic Privacy Information Center can't challenge the legality of the NSA's practice of collecting U.S. telephone records because the Patriot Act of 2001 only allows challenges from businesses that receive government orders to turn over business records or from the U.S. government, according to U.S. Solicitor General Donald Verrilli Jr. and lawyers with the U.S. Department of Justice, who made the argument in a brief filed Monday.

Because the law doesn't allow EPIC to challenge an NSA order directed at Verizon Communications, the Supreme Court "lacks jurisdiction" to act on EPIC's request, they wrote.

EPIC filed a motion in July asking the Supreme Court to vacate an order from the U.S. Foreign Intelligence Court requiring Verizon to turn over all its phone records. If the court decides against that course of action, EPIC asked it to review the legality of the program.

EPIC has argued that, as a Verizon customer affected by the NSA program, it has standing to challenge the phone records collection. The intelligence court "exceeded its legal authority and could not compel a telephone company to disclose so much personal information unrelated to a foreign intelligence investigation," EPIC said in a post on its website.

The Supreme Court shouldn't act on either EPIC request, Verrilli and the DOJ lawyers wrote. EPIC lacks legal standing under the Patriot Act to make either request, and the privacy group hasn't made the case that overturning the Verizon order is warranted, they wrote.

A court decision to vacate the order would be a "drastic and extraordinary remedy that is reserved for really extraordinary causes," the lawyers wrote, quoting a Supreme Court ruling on acting on so-called writs of mandamus vacating lower court orders.

Instead of appealing to the Supreme Court, EPIC should direct its efforts toward filing a lawsuit in federal district court, the DOJ lawyers argued. The DOJ, however, has even opposed requests by tech companies to publish the number of surveillance requests they get.

The Obama administration's response to EPIC's request came on the same day that the Washington Post reported that the NSA is collecting email address books and instant-messaging buddy lists from millions of Internet users worldwide.

White House spokesman Jay Carney defended the NSA, saying its programs were targeted at overseas terrorism suspects.

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