In re Electronic Privacy Information Center

The Foreign Intelligence Surveillance Act (FISA) is a United States federal law which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens and permanent residents suspected of espionage or terrorism).[1] The Act created the FISC to oversee the FISA requests. The FISC is a secret court populated with judges appointed by the Chief Justice of the Supreme Court of the United States. The secret nature of the court means that all proceedings are behind closed doors and all decisions are classified. Concerns about the government's surveillance efforts and its use of the Patriot Act were present for years before the case. Two members of the Senate Intelligence Committee, Senator Ron Wyden (D-OR) and Senator Mark Udall (D-CO), had been warning the public about this issue, although they were unable to go into detail because of the confidential nature of the information. In 2012, they wrote an open letter to Attorney General Eric Holder about this issue, saying, "We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted Section 215 of the Patriot Act."[2][3]

On June 6, 2013, The Washington Post and The Guardian published a classified FISC order leaked by Edward Snowden.[4] The leaked order compelled Verizon to produce telephony metadata records on an ongoing daily basis to the NSA. This disclosure of the bulk telephony metadata collection initiated public debate about the constitutionality of NSA's surveillance program and brought forth the question of whether the FISC court had exceeded its statutory authority in granting the Verizon order. EPIC, the petitioner in this action, is a public interest research center focused on First Amendment and other constitutional issues of privacy, open government, free speech, and other civil liberties.[5]

The Federal Bureau of Investigation (FBI) filed an application with the FISC to compel Verizon to produce telephony metadata from its customers' calls for 90 days. According to the FISA order, telephony metadata includes "comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer."[6]

On April 25, 2013, the FBI was successful in getting the FISC to grant a FISA order compelling Verizon to produce the metadata of its entire customer base for 90 days and provide it to the National Security Agency (NSA). Judge Roger Vinson presided over the proceeding. This particular FISA order came to light as part of the uncovering actions taken by Edward Snowden.[7]

There were four amicus briefs filed with the Court: (1) brief amici curiae of Professors of Information Privacy and Surveillance Law;[13] (2) brief amici curiae of Professors James E. Pfander, and Stephen I. Vladeck;[14] (3) brief amici curiae of Former Members of the Church Committee, and Law Professors;[15] and (4) brief amicus curiae of Cato Institute.[16] All four briefs were in support of the Petitioner EPIC.

On November 18, 2013, the Supreme Court denied EPIC's petition, likely on procedural grounds.[17][18] In its October 11, 2013 response to EPIC's petition, the government had also argued that the proper procedure would be to first file an action in a federal district court.[19]

By denying EPIC's petition, the Supreme Court avoided having to wrestle with the privacy issue at hand. There are, however, other cases addressing the same or similar issues in the pipeline, such as ACLU v. Clapper, that the Supreme Court may choose to hear arguments for and write a full opinion.