EPIC is taking their case directly to the Supreme Court. Via Library of Congress
Edward Snowden's whistleblowing has caused a whole lot of pandemonium, but it's also produced results. For one, the top secret information Snowden leaked breathed new life into the ongoing legal fight against the NSA's dragnet surveillance.
This week, the Electronic Privacy Information Center filed an emergency petition with the US Supreme Court to sue the government for phone snooping, and several other privacy lawsuits are plowing forward.
So, who is suing who, and for what exactly? And do they have a snowball's chance in hell of winning? Let's break it down.
EPIC v. NSA
EPIC's been all over the surveillance issue for nearly a decade. It sued for information on the NSA and Google's relationship in 2010, fought and lost over warrantless wiretapping under Bush.
This time the group went straight to the top, to the Supreme Court. Directly asking the nation's highest court to sue the government is ballsy, and rare. Plus, it usually doesn't work. So why is EPIC doing it?
For one, these aren't common circumstances, the group says. For two, because of a pesky little problem called the Foreign Intelligence Surveillance Court, also known as FISC, also known as the "secret court" that signed off on the vast majority of NSA wiretap requests without public knowledge or opposition.
This court is ridiculous—a clear abuse of government power. Just ask the former secret court judge that lambasted the court this week, saying, "a court that hears only from one side—the government—is no longer suitable to the kinds of programs the court is charged with approving."
One of the programs it’s charged with approving is the one (leaked by Snowden) in which the feds tell phone companies to monitor and collect metadata from millions of Americans and then hand over that data to a secret court.
This is where EPIC has serious beef. The privacy group is saying the whole process is bananas, and also illegal, and also a clear violation of Americans' constitutional rights. It claims the court is going beyond its statutory jurisdiction, i.e., that sweeping domestic spying isn't sufficiently relevant to fighting terrorists.
ACLU v. NSA
Just five days after Snowden's leak, the American Civil Liberties Union filed its own lawsuit against the NSA. Again. "Suspicionless surveillance of every person in the country" violates the First and Fourth Amendments, the group wrote in a press release.
The ACLU has sued the NSA for unconstitutional domestic spying again and again, to no avail, ever since Bush’s post-9/11, terrorism-justified Patriot Act started wiretapping phones without a warrant.
"There is less difference than meets the eye between the Bush Administration's claims to broad surveillance powers and President Obama's,” Jameel Jaffer, the director of the group’s Center for Democracy, told the Atlantic. “Both administrations' surveillance activities exceeded the limits set by statutory law. Both administrations failed to inform the public of the civil liberties it was being forced to surrender in the name of national security.”
EFF's logo for its case against government spying, via Flickr
Jewel v. NSA (EFF)
The Electronic Frontier Foundation caught a break this week in its longstanding legal fight. The Jewel v. NSA lawsuit was filed years before Snowdengate, also taking on warrantless wiretapping as a violation of the First and Fourth Amendments.
The case was empowered by information from NSA whistleblowers of past, then smacked down by the government’s "can't reveal state secrets!" excuse. Snowden's leaks tipped the balance just enough for a US federal court to rule that the lawsuit can press on, state secrets be damned.
Will the Supreme Court ever hear the case? Will any of these groups emerge victorious?
The prevailing opinion is, probably. Eventually. But not for a while. Though EFF cleared a hurdle by getting past the state secrets block, it's not the only hurdle on this road. The groups need to produce evidence, and some of that information will still be top-secret stuff. As Find Law blog very rightly noted, it's quite hard to produce evidence of a secret spy program.
As for EPIC, experts say it's not likely the Supreme Court will accept the petition right off the bat. Probably it will kick it back to the lower courts, where it will climb its way back up, a process riddled with speed bumps.
Historically, it takes a long time for the Judicial Branch to catch up with contemporary culture, and this is only more true now that new technology is rapidly changing social norms. It could take years for this debate to play out in court, but it's worth watching along the way. If the Supreme Court hears a case centered on online privacy, that'll be an epic decision.