Foreign Intelligence

Supreme Court Denies Request To Review FISC Court Order.

by Erin Fleury, UMN Law Student, MJLST Staff

Last week, the Supreme Court denied a petition requesting a writ of mandamus to review a decision that ordered Verizon to turn over domestic phone records to the National Security Administration (“NSA”) (denial available here). The petition alleged that the Foreign Intelligence Surveillance Court (“FISC”) exceeded its authority because the production of these types of records was not “relevant to an authorized investigation . . . to obtain foreign intelligence information not concerning a United States person.” 50 U.S.C. § 1861(b)(2)(A).

The Justice Department filed a brief with the Court that challenged the standing of a third party to request a writ of mandamus from the Supreme Court for a FISC decision. The concern, however, is that telecommunication companies do not adequately fight to protect their users’ privacy concerns. This apprehension certainly seems justified considering the fact that no telecom provider has yet challenged the legality of an order to produce user data. Any motivation to fight these orders for data is further reduced by the fact that telecommunication companies can obtain statutory immunity to lawsuits by their customers based on turning over data to the NSA. 50 USC § 1885a. If third parties cannot ask a higher court to review a decision made by the FISC, then the users whose information is being given to the NSA may have their rights limited without any recourse short of legislative overhaul.

Unfortunately, like most denials for hearing, the Supreme Court did not provide its reasoning for denying the request. The question remains though; if the end users cannot object to these orders (and may not even be aware that their data was turned over in the first place), and the telecommunication companies have no reason to, is the system adequately protecting the privacy interests of individual citizens? Or can the FISC operate with impunity as long as the telecom carriers do not object?