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Supreme Court Refuses To Hear EPIC Challenge To NSA Surveillance 227

Posted by samzenpus
from the we're-not-listening-to-you dept.
Trailrunner7 writes "The challenge to the NSA's domestic surveillance program filed with the Supreme Court by the Electronic Privacy Information Center ended Monday, with the court refusing to consider the challenge at all. EPIC had filed the challenge directly with the Supreme Court rather than going through the lower courts. EPIC, a non-profit organization involved in privacy policy matters, had asked the court to vacate an order from a judge in the Foreign Surveillance Intelligence Court that had enabled the NSA's collection of hundreds of millions of Verizon call records under the so-called metadata collection program. The challenge hinged on the idea that the FISC had gone outside of its authority in granting the order."
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Supreme Court Refuses To Hear EPIC Challenge To NSA Surveillance

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  • EPIC fail (Score:5, Funny)

    by sunsurfandsand (1959680) on Monday November 18, 2013 @03:42PM (#45456905)
    I hate it when that happens.
  • by bob_super (3391281) on Monday November 18, 2013 @03:43PM (#45456909)

    Sounds like we're going to need a reliable supplier of pitchforks soon.

    • by cold fjord (826450) on Monday November 18, 2013 @03:48PM (#45456983)

      No, what's needed is a source of sound legal advice and strategy. EPIC's strategy was fatally flawed from the beginning. Their failure should have been easily foreseen by just about anyone with a more than passing familiarity with the US legal system. It was a self-frag.

      • Since SCOTUS previously denied standing to people because they couldn't prove they had been spied upon, and the Govt is likely to keep asserting State Secrets Privilege, I'm still waiting to hear how the stolen Snowden stuff is going to be enough to get anything else than -at best- a 5-4 rejection.
        It's only metadata, those silly Framers forgot to put it as something worth protecting.

      • by Runaway1956 (1322357) on Monday November 18, 2013 @04:11PM (#45457191) Homepage Journal

        I hate to say it, but you're right. The judicial branch of government runs on precedent and tradition, unless and until it is convenient for them to counter precedent and tradition.

        IANAL, but I'm not aware of any cases being taken directly to the Supreme Court like Epic tried to do. Everything runs through the lower courts, even if the Supreme Court is the intended goal.

        • IANAL either, nor even an American. But for some reason I figured this quote

          The challenge hinged on the idea that the FISC had gone outside of its authority in granting the order.

          explains why they went (had to go?) straight to SCOTUS because the special nature, ahem, of the foreign intelligence court places it sort of outside the conventional framework of appeals and so on. Where do you suggest they might otherwise have started?

          • You start in the federal court of someone whose information was wrongfully collected. Which is apparently just about anybody.

            They will judge whether the government infringed their rights and whoever loses will appeal to a higher court. When that higher court rules it'll get passed up to the next appeal court. As long as a higher court is willing to hear the case it'll keep getting appealed until the SCOTUS lets the ruling stand or hears the case.

            • by Frobnicator (565869) on Monday November 18, 2013 @09:29PM (#45459793) Journal

              It isn't a matter of tradition. The US Constitution only allows two types of cases to start at the supreme court:

              "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction"

              This case did not involve the specified people, nor did it involve a state. Therefore it cannot originate in the supreme court.

      • You may be right, but I wonder if they were trying to go the cheapest route possible. As in, maybe they figured that trying to go directly to the supreme court wouldn't be a bad idea, compared to going through lower courts, paying lawyers along the way.

        I'm not a lawyer, so maybe that sounds dumb to someone that knows more than I do.
      • You are correct that it was doomed from the beginning, as any court observer would see.

        The Constitution is very clear on the matter, so much that even non-lawyers can understand it:

        "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction"

        There are only two kinds of cases that can start at the supreme co

    • Sounds like we're going to need a reliable supplier of pitchforks soon.

      Well, they've got pitchchopsticks over there I guess. But that'll do just fine, once you get the hang of it.

    • Reliable? Have you ever used a pitchfork made in China?

    • http://www.alibaba.com/product-gs/540042213/FORGED_PITCH_FORK_SPADING_FORK_IN.html [alibaba.com]
      $6 each, min order 100.
      This company claims to be able to supply 10,000 per month which isn't bad. Should we shop around a little more first?

    • by slick7 (1703596)
      Bought dog, bought dog,
      watcha gonna do, watcha gonna do then there's a noose for you.
  • No surprise (Score:5, Insightful)

    by cold fjord (826450) on Monday November 18, 2013 @03:44PM (#45456925)

    EPIC tried to jump the line - they didn't follow the proper appeals process. That is highly frowned upon by the legal system and rarely succeeds. No surprise in this outcome. And nobody should read anything into it either way. One of the existing or future challenges may succeed as it works its way through the court system.

    • Re:No surprise (Score:5, Interesting)

      by Daniel_Staal (609844) <DStaal@usa.net> on Monday November 18, 2013 @03:46PM (#45456955)

      Also: Congress is working on this issue. The Supreme Court really doesn't like to step on the toes of the other two parts of the government if it doesn't have to. Looking at the activity on this issue, it's likely they won't have to.

      • Re:No surprise (Score:5, Insightful)

        by Hatta (162192) on Monday November 18, 2013 @04:10PM (#45457183) Journal

        Congress is working on what exactly? Amending the Constitution? That's what it would take to make any of this generalized warrantless surveillance legal.

        • Re:No surprise (Score:5, Insightful)

          by Runaway1956 (1322357) on Monday November 18, 2013 @04:35PM (#45457435) Homepage Journal

          I thought it was obvious, but the majority of congress critters were unaware of how pervasive NSA spying is. A number of them were shocked to learn how powerful NSA has grown. It's not even really clear that the committee members responsible for national security understood.

          Some of those shocked congress critters are, indeed, exploring avenues to reign in the intel communities. Ineffectively exploring, for sure, but they are doing what their feeble little minds are capable of.

          But, there is a danger here, that we should all be aware of. Any congress critter who makes to much noise may be targeted by the NSA, and quietly blackmailed to shut the hell up. I really don't think the Secret Service can protect a congress person from the NSA and the rest of the intel apparatus. There is really no telling what has happened behind the scenes. Does kristallnacht ring any bells?

          • Re:No surprise (Score:4, Informative)

            by Antipater (2053064) on Monday November 18, 2013 @05:07PM (#45457759)

            There is really no telling what has happened behind the scenes. Does kristallnacht ring any bells?

            If you're referring to the murder of anti-Nazis within the German government, I believe you're thinking of the Night of the Long Knives [wikipedia.org], not Kristallnacht. Kristallnacht was a series of very public anti-Jewish riots.

            • Kristalnacht lasted for only a couple days, according to the wikipedia, and that incident led to the night of the long knives. For my purpose, that of warning against a possible coup, the two incidents can be rolled together into one larger incident. Ultimately, they led to the state rounding up and killing potential adversaries, and solidifying the government's position as supreme rulers over the people.

              • Re:No surprise (Score:5, Informative)

                by Antipater (2053064) on Monday November 18, 2013 @06:01PM (#45458281)
                Eh? The Night of the Long Knives took place in 1934, four years before Kristallnacht. Street violence from the brownshirts was a major factor leading to the Long Knives, sure, but at that time it was random and unfocused, just drunken brownshirts beating up anyone they saw. Kristallnacht was specifically focused against Jews.
          • I thought it was obvious, but the majority of congress critters were unaware of how pervasive NSA spying is. A number of them were shocked to learn how powerful NSA has grown. It's not even really clear that the committee members responsible for national security understood.

            I have no idea is they understood or not. Certainly what they say publicly doesn't mean anything either way.

            Some of those shocked congress critters are, indeed, exploring avenues to reign in the intel communities. Ineffectively exploring, for sure, but they are doing what their feeble little minds are capable of.

            If I am not mistaken though, their feeble little minds are mostly coming up with proposals to further delegitimize and undermine the whistleblower stature as safeguard against criminal overreach. It'd be uplifting to learn about more constructive legislation, however; have any links?

            But, there is a danger here, that we should all be aware of. Any congress critter who makes to much noise may be targeted by the NSA, and quietly blackmailed to shut the hell up. I really don't think the Secret Service can protect a congress person from the NSA and the rest of the intel apparatus. There is really no telling what has happened behind the scenes. Does kristallnacht ring any bells?

            Might want to look that last one up before you throw it around on the Interwebs. I get the police state vibe, but this c

          • by Hatta (162192)

            I thought it was obvious, but the majority of congress critters were unaware of how pervasive NSA spying is.

            I thought it was obvious, but Congress has been deliberately violating the 4th amendment since they granted retroactive immunity to telcos for violating wiretap laws in 2008. A bill which Senator Obama voted for.

            All three branches of government are conspiring against the Constitution. The rule of law is well and truly dead in America.

            • I thought it was obvious, but the majority of congress critters were unaware of how pervasive NSA spying is.

              I thought it was obvious, but Congress has been deliberately violating the 4th amendment since they granted retroactive immunity to telcos for violating wiretap laws in 2008. A bill which Senator Obama voted for.

              All three branches of government are conspiring against the Constitution. The rule of law is well and truly dead in America.

              I know Americans love to over-use hyperbole, but you do realize that we had Jim Crow? If American democracy can survive that particular travesty it can survive the NSA knowing that you have no life.

          • by icebike (68054)

            I thought it was obvious, but the majority of congress critters were unaware of how pervasive NSA spying is. A number of them were shocked to learn how powerful NSA has grown. It's not even really clear that the committee members responsible for national security understood.

            Actually, a larger number of them are out there backing the NSA Spying to the hilt. Any Congressman other than a first term greenhorn already voted for most of these measures and has an ass to protect.

            The rest of them don't want to have to deal with Pelosi. [cbslocal.com]

          • Maaan, I'd love to agree with you (and to a small extent, I do), but there's one thing that stops me from thinking that way, and that's the Utah data center. I mean, each dept of government has, ultimately, a budget. Whoever sets those budgets should be able to come to terms with why that dept needs that much money, no?
        • Re:No surprise (Score:5, Insightful)

          by ColdWetDog (752185) on Monday November 18, 2013 @05:14PM (#45457835) Homepage

          Congress is working on what exactly?

          Fucking things up. What else?

        • by spacepimp (664856)

          Actually, the 4th Amendment spells out the fact that generalized warrants are not legal.

        • Congress is working on what exactly? Amending the Constitution? That's what it would take to make any of this generalized warrantless surveillance legal.

          Technically it's not warrantless. The FISA Court grants warrants all the time. You're free to disagree with those warrants, but they do exist,

          The Courts may go along with the warrants, or they may not. I'd lean towards them going along with the warrants. FISA Court Judges are Federal Judges appointed by Roberts to the FISA Court. This means they almost certainly agree with Roberts on damn near everything, and Roberts leads a fiarly cohesive faction of 5 votes. The other faction includes multiple people appo

      • by sl4shd0rk (755837) on Monday November 18, 2013 @04:26PM (#45457337)

        Also: Congress is working on this issue.

        That's good to hear. I was afraid the issue may otherwise be left to a group of incompetent, self-serving asshats.

        • Also: Congress is working on this issue.

          That's good to hear. I was afraid the issue may otherwise be left to a group of incompetent, self-serving asshats.

          Those two statements, of course, are not mutually exclusive. ;)

      • by houghi (78078)

        The Supreme Court really doesn't like to step on the toes of the other two parts of the government if it doesn't have to.

        That sound like a problem to me. That means they are not independent, where I would think that they should not look at anybody else, but instead follow their own independent way that might agree with the other two, or might be the complete opposite of them.

        If not, why have multiple parts?

        • The Supreme Court is more of a check than an active force - but it is a very powerful check. History has shown that if they act without caution, they can easily make things worse than they were before. (See, for instance, Dred Scott v. Sandford, one of the causes of the Civil War...)

          They are willing to step on toes if they need to - lots of cases, recent and historic show that. But they prefer to avoid doing so unless they need to, because it can cause problems. If the other two parts of the government

        • It's a waste of their time to rule on a law which is in the process of changing. For instance they wouldn't have wasted their time on the Obamacare decision if congress was likely to make significant amendments and/or appeal it.

          The judicial branch is like government QA. If a new build is about to drop, it's a waste of time to do a big bug push.

      • The Supreme Court really doesn't like to step on the toes of the other two parts of the government if it doesn't have to.

        Well, that's historically the reasoning. The current sitting justices, however, love meddling.

    • Okay okay, sure it doesn't appeal to the whole process.

      But we are talking about something that seems, to me, like it would end up in the Supreme Court anyway. If true, why spend a bunch of time and money just stalling the inevitable.

      • Re:No surprise (Score:4, Insightful)

        by cold fjord (826450) on Monday November 18, 2013 @04:13PM (#45457219)

        Because the lower court cases establish the facts and legal questions at hand. They establish a record for the appeals courts to consider. It gives a change for more legal minds to consider it and provide input to the system. It also allows cases in multiple jurisdictions to more fully develop the issue. It also gives an opportunity for the political system to correct the problems - if there is one, without the court having to act. The case may resolve itself for various reasons.

        The thing to remember is that when the Supreme Court decides an issue, it is decided, for better or worse. You may not like the outcome, and the resulting precedent. That is why advocacy groups tend to pick their cases for appeal carefully, as well as their arguments. EPIC was reckless.

    • >>> EPIC tried to jump the line - they didn't follow the proper appeals process. That is highly frowned upon by the legal system and rarely succeeds.

      Isn't the NSA and secret courts circumventing the constitution and these people swore an oath to the protect the constitution So the regime can do what it wants but the people must jump through hoops.

      • Re:Which is funny (Score:5, Insightful)

        by Runaway1956 (1322357) on Monday November 18, 2013 @04:16PM (#45457237) Homepage Journal

        Yes - you're right. The intel community is indeed trashing the constitution. But - if we are going to defend the constitution, then we need to do it in a constitutional manner. File suit, and win - OR, file suit, be defeated, appeal, be defeated again, appeal again, THEN argue your case in front of the Supremes.

        Hey, I don't really like it. It's time consuming, and wasteful, as you suggest. The only other way to put the NSA in it's place, is to have congress just pass some laws defining what is legal, and start defunding the illegal activities.

        The remaining alternative is wasteful in terms of human life, as well as money and material. Revolutions can be like that.

    • Re:No surprise (Score:5, Insightful)

      by TubeSteak (669689) on Monday November 18, 2013 @03:59PM (#45457111) Journal

      From their petition:

      15
      The FISC and Foreign Intelligence Surveillance Court of Review ("Court of Review") only
      have jurisdiction to hear petitions by the Government
      or recipient of the FISC Order, and neither party to
      the order represents EPIC's interests. Other federal
      courts have no jurisdiction over the FISC, and thus
      cannot grant the relief that EPIC seeks.

      The only people that can appeal the order are the Feds and the people that the feds are ordering around.
      EPIC, despite having their metadata vacuumed up, have no standing under the law to appeal to the FISA court.

      It's easy for you and others to say "[Epic] didn't follow the proper appeals process"
      but AFAIK none of you have actually elucidated what the proper appeals process is under the law.

      EPIC has, with citations, laid out their case, starting on Page 14 [epic.org] (PDF)
      "Nuh uh" isn't an insightful or interesting rebuttal.

      • by Shakrai (717556) *

        "Nuh uh" isn't an insightful or interesting rebuttal.

        It is when the Supreme Court of the United States does it. Only takes four Justices to grant a writ of certiorari. They couldn't even meet that threshold, which should tell you all you need to know about their chances if they had managed to get the case heard. It was either declined for procedural reasons (improper venue most likely, SCOTUS doesn't have original jurisdiction here, lack of standing is also possible) or because the Justices are mostly in agreement about the issue at hand. If the latter yo

      • The only people that can appeal the order are the Feds and the people that the feds are ordering around.
        EPIC, despite having their metadata vacuumed up, have no standing under the law to appeal to the FISA court.

        It's easy for you and others to say "[Epic] didn't follow the proper appeals process"
        but AFAIK none of you have actually elucidated what the proper appeals process is under the law.

        This is a somewhat difficult question, especially since the Supreme Court has previously ruled that metadata is considered ordinary business records so the legal hurdle to get them is pretty low. Anyone that wants to challenge this is facing issues of venue, standing, and fighting to effectively overturn or modify an existing Supreme Court precedent. Before laying out what seem to be some possible legal strategies (INAL), it is worth remembering that even the courts acknowledge that some issues are better

    • by Shakrai (717556) *

      Exactly. They declined to grant a writ of certiorari. This is not the same thing as an endorsement of FISA. SCOTUS hears less than 2% of all cases that come before it. EPIC will have to go through the Circuit Courts first, and even then isn't assured of going before SCOTUS, unless the Circuits commit reversible error (rare) or issue contradictory rulings (usually ensures SCOTUS review).

    • by shentino (1139071)

      So, does jumping the line mean they get disqualified from the race altogether or do they just have to get back on course and appeal properly?

      • They aren't disqualified, but If they want to pursue the case they will have to start it just like everybody else at the lower court level.

        • by khallow (566160)

          but If they want to pursue the case they will have to start it just like everybody else at the lower court level

          And what court would that be? It appears EPIC's argument is that there is no such court.

          • If it's one thing that lawyers are good at, it is coming up with more arguments.

            In fact, they are rather professionally disposed to do so.

          • It appears EPIC's argument is that there is no such court.

            EPIC Catch-22.

    • Re:No surprise (Score:4, Insightful)

      by synapse7 (1075571) on Monday November 18, 2013 @04:54PM (#45457603)
      I'm sure we will have done away with that pesky constitution before this issue makes it through the proper channels.
    • Re:No surprise (Score:4, Insightful)

      by Charliemopps (1157495) on Monday November 18, 2013 @05:02PM (#45457695)

      OR... the NSA has their phones tapped (Actually that's a given fact at this point) and has all sorts of dirt on them.

      The problem is, this activity is so heinous, so contemptible, it threatens the very foundations that this country was built on. The fact that every branch of government isn't jumping all over this is highly suspicious to me. The NSA could be in the midst of a silent Coup d'état at the moment and none of us would know. That's how much power they wield. They could blackmail every member of government, every military leader, we'd have no idea. We cannot allow this to stand. It must stop immediately. It's sad that the supreme court values procedure over the constitution. It's like their house is on fire and they refuse to use the fire-extinguisher because the proper paperwork hadn't been filed.

    • by firex726 (1188453)

      So... Why would a lawyer try and jump the line like that?
      Getting a case in front of SCOTUS is hard enough, why set yourself up to fail by not following procedure? One would think of all people lawyers could follow directions.

    • Well, as I understand it (as an amateur watcher of the Court), EPIC wasn't so much attempting to "jump the line" as to force a decision on jurisdiction. There are other challenges to surveillance in other federal courts, but the government's position includes an argument that those courts have no jurisdiction to hear such challenges or to issue orders overturning/voiding actions of the FISC. EPIC's line of reasoning here is to try to constrain the government's position into arguing that no other court can
  • Citizens have rights.

    • Re: (Score:3, Informative)

      by cold fjord (826450)

      If you are still in college I recommend you take a course or two in the functioning of the judicial system. This was an easily predictable failure. You don't make your first filing with the US Supreme Court for just about any case an ordinary citizen could bring.

      Even citizens with rights have to follow procedure.

  • Proper Procedure (Score:4, Informative)

    by Frosty Piss (770223) * on Monday November 18, 2013 @03:51PM (#45457017)

    EPIC had filed the challenge directly with the Supreme Court rather than going through the lower courts.

    This is the issue. The Supremes like you to work your way up through the lower courts as it is the proper procedure. If they accepted even a fraction of cases that didn't work the system the way it was designed, they would have a HUGE case load that could have been solved at a lower level.

    EPIC will whine about this, but they should have been able to predict the outcome.

    • by EmagGeek (574360)

      A "solution" that is found in a lower court does not apply everywhere in the country.

      If the Ninth Circuit found the NSA wiretapping to be unconstitutional, it would only be unconstitutional in the Ninth Circuit.

      EPIC was hoping that the SCOTUS would see this as such an immediate, emergent issue that is imperative to be equal throughout the land, that they would hear it.

      EPIC was wrong, apparently.

      • by Wookact (2804191)
        I actually believe that the supreme court was wrong to deny the writ.
      • That's kinda how the system is designed.

        In many ways the Supremes actually need dueling lower Court rulings to do their jobs because with dueling lower court rulings they can see what both sets of Judge's did, and decided which works. It also generates a lot of paperwork (briefs, arguments, etc.) that the Supreme Court needs but has no experience creating on it's own.

  • God forbid SCOTUS make a decision that in any way matters, challenges the status quo in any way, or requires them to work late. Unless they're doing something to benefit the powerful corporations [wikipedia.org], best to just ignore the issue altogether and hope the lower courts aren't so lazy.

    • That "Citizens United" axe must be getting awfully sharp, people keep grinding on it over just about any excuse or topic.

      • Re: (Score:2, Insightful)

        by deanklear (2529024)

        According to a new report released Monday by the Sunlight Foundation, 78% of 2012 outside election spending can be attributed to the 2010 Citizens United ruling, which allows unregulated amounts of corporate and otherwise outside campaign donations.

        Citizens United made it easier to buy important political offices in the United States. When you have a bought Congress, not much is solvable, because the elected paradoxically owe nothing to those who voted them in. We're nobody, but the people who dropped billi

        • by khallow (566160)
          There was a simple solution here. Congress could have passed a similar law which didn't violate the US Constitution. They did their token bit to appear to reign in corruption and moved on.
        • by Shakrai (717556) *

          Citizens United made it easier to buy important political offices in the United States.

          I hate to break it to you, but Political Action Committees (PACs) were already allowed to accept limitless donations and to air their opinions whenever and wherever they wanted. All Citizens United did was remove the restraints on other corporations, which encompasses everything from Citizens United (the corporation that brought the suit) to the Sierra Club. Incumbent legislators hate this, because they were the ones who usually ran the PACs, and now they have to contend with speech they have no control o

    • Unless they're doing something to benefit the powerful corporations [wikipedia.org]

      You do realize that Citizens United [citizensunited.org] is a corporation that was created for the specific purpose of advancing political speech, right? It's no different than MoveOn.org, it was just a bunch of like-minded people that got together to advance something they believe in. The easiest way to band together in our political-legal system is to create a corporation. The NRA is a corporation. So is the Sierra Club. Labor Unions too, they're almost always incorporated. And let's not forget the press, the majority o

  • by CanEHdian (1098955) on Monday November 18, 2013 @03:55PM (#45457061)
    That's indeed how it works, like a Bruce Lee movie: you start with the lowest ranked minion, then work your way up. Except you're not working, a very expensive team of lawyers is. Ka-ching, Ka-ching and Ka-ching. You don't get to jump to the End Boss without racking up a huge, huge legal bill.
    • by steelfood (895457)

      I was going to say that it's kinda like the coins you gather along the way negated, but on second thought, it's more like the quarters you have to put into the arcade.

      The SCOTUS usually becomes involved when the appellate opinions differ between districts. The system itself is designed to be slow and painstaking. The fact that lawyers get to charge a thousand dollars an hour to go through the system largely speaks to more a problem with how lawyers are valued and less the system.

  • by BenEnglishAtHome (449670) on Monday November 18, 2013 @04:33PM (#45457423)

    The whole "working your way through the courts" process can be radically shortened if you're willing to play the game. To wit:

    1. File in Texas.
    2. Claim less than $25 in damages.
    3. Lose in small claims court.
    4. Texas law provides ZERO appeals for cases this small, so
    5. Go straight to the Supreme Court.

    The SC has previously heard at least one notable case that got there through this mechanism.

  • by danbuter (2019760) on Monday November 18, 2013 @07:08PM (#45458903)
    I wonder if any of the Supreme Court Justices had scary phone calls or mysterious meeting with NSA personnel in the recent past.

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