Could the Supreme Court stop the NSA?

Ordinarily, it takes years of litigation in lower courts before an issue can reach the nation’s highest court. But the Electronic Privacy Information Center has gone straight to the top, arguing in a court filing that the unusual structure of the Foreign Intelligence Surveillance Court gives victims of the National Security Agency’s program no other choice than to ask the Supreme Court to step in.

The Supreme Court has the power to issue an order called a “writ of mandamus” to deal with lower courts that overstep their legal authority. This type of order is only supposed to be used in “exceptional circumstances.” But EPIC argues that the NSA’s phone records program is exactly the kind of situation that merits the Supreme Court’s intervention. The phone records program is based on Section 215 of the Patriot Act, which is supposed to be used to obtain business records related to a terrorist investigation. The government argues that Verizon’s entire phone records database is relevant to counterterrorism efforts and can therefore be obtained with a single court order. EPIC says such a broad order is inconsistent with Congress’s intent. Much of EPIC’s request is focused on persuading the Supreme Court that the Foreign Intelligence Surveillance Court’s call records order is exceptional.