Supreme Court weighs NSA challenge

The Supreme Court is set to decide whether it will hear a legal challenge to a controversial National Security Agency surveillance program.  

The justices met Friday to consider a petition from the Electronic Privacy Information Center (EPIC) to overturn the NSA’s program to collect records on all U.S. phone calls.


The court is likely to announce on Monday whether it will take up the lawsuit. In most cases, four justices must vote to consider a case.  

Other civil liberties groups such as the American Civil Liberties Union and the Electronic Frontier Foundation are also mounting legal challenges to the NSA programs disclosed by Edward Snowden. But EPIC’s challenge is the only one to go directly to the Supreme Court. 

EPIC’s suit claims that the Foreign Intelligence Surveillance Court (FISC) overstepped its authority when it granted the NSA permission to collect the phone records in bulk.

Section 215 of the Patriot Act only authorizes the NSA to collect business records that are “relevant” to a terrorism investigation. 

By allowing the NSA to use that provision to collect records on millions of Americans without any ties to terrorism, the court acted outside of its own jurisdiction, EPIC argues in its suit.

“In this case, the only higher court we can go to is the Supreme Court,” said Alan Butler, EPIC's lead attorney on the case.

But EPIC faces a high bar to win. It must show that there are “exceptional circumstances” and that it can't obtain adequate relief from another court.

Even if the justices want to eventually rule on the legality of the NSA program, they may prefer to wait for the other lawsuits to wind their way through the federal court system.

Courts can be especially reluctant to make quick, bold rulings on national security issues. 

“We're confident that the court will take our challenge seriously,” Butler said. “This really is an exceptional circumstance where we have seven years of secret FISA court orders based on an interpretation of federal law that most people agree is not correct.” 

He noted that Rep. Jim SensenbrennerFrank (Jim) James SensenbrennerProtecting the fundamental right of all Americans to have access to the voting booth Republicans compare Ron Johnson to Joe McCarthy: NYT GOP puts pressure on Pelosi over Swalwell MORE (R-Wis.), the original author of the Patriot Act, has argued that he never intended to give the NSA the power to indiscriminately collect millions of U.S. phone records. He is now sponsoring legislation to end the program and tighten oversight of the NSA.

But a separate bill from Sen. Dianne FeinsteinDianne Emiel FeinsteinOvernight Energy & Environment — Starting from 'scratch' on climate, spending bill Senate panel advances bill blocking tech giants from favoring own products Eight senators ask Biden to reverse course on Trump-era solar tariffs MORE (D-Calif.) could derail the lawsuits by EPIC and the other groups. Her legislation would change certain NSA procedures to toughen privacy protections but would explicitly endorse the bulk phone record collection. 

Feinstein and intelligence officials argue the program is critical for “connecting the dots” and thwarting terrorist attacks.