“We are just one of millions of Verizon customers and others who have made similar claims,” Rotenberg said.
The privacy group joins several other organizations that have filed lawsuits objecting to the NSA’s surveillance program. In addition to several cases filed by the American Civil Liberties Union at state and district levels, Google and Microsoft have both challenged gag orders that prevent them from disclosing what data they are forced to give the government under a separate surveillance program, called PRISM. The companies say that the gag order inhibits their First Amendment right to free expression.
On Monday, the ACLU, Electronic Frontier Foundation digital rights group, First Amendment Coalition and others filed an amicus brief supporting Google and Microsoft with the Foreign Intelligence Surveillance Court. In a copy of the brief obtained by The Washington Post, the group said that the firms have faced public criticism for disclosing data to the government and that it is “antithetical to the First Amendment to restrict the ability of a person to mount a defense against public accusations by responding with speech setting forth the truth about one’s own actions.”
While Google and Microsoft say that their cases relate to a constitutional violation, EPIC’s argues that this kind of order does not fall within the power granted to the court by a section of the Patriot Act that allows data sought in an order to be “relevant” to an authorized investigation. By requesting millions of records, the group says, it becomes difficult for the government to prove that the records were applicable to a particular case.
“The court does not have the authority under the text of the act to issue such a sweeping order,” Rotenberg said.
Rotenberg said that EPIC decided to file the petition with the Supreme Court — even though this case has not been filed in any lower courts — rather than with the Foreign Intelligence Surveillance Court of Review because only the government or companies given orders have standing in that court. Lower courts, he said, do not appear to have the standing to review rulings from FISC courts.
“We believe only the Supreme Court is allowed to review” the order, he said. “Therefore we believe we have right to bring this claim to the Supreme Court.
Others have also questioned how the Obama administration has used this section of the Patriot Act. In a letter to Attorney General Eric Holder last month, the author of the act, Sen. Jim Sensenbrenner (R-Wis.) said that he never intended the law to be interpreted in this way.
“As the author of the Patriot Act, I am extremely disturbed by what appears to be an overbroad interpretation of the Act,” he wrote.
Sensenbrenner said he purposefully included a sunset provision for this section — Section 215 — so that Congress would be able to assess whether it infringed on civil liberties. These provisions will sunset in 2015. In the letter, he said that if the current interpretation continues, he may recommend that that portion of the act not be reauthorized.
“Section 215 is an urgent tool and crucial to intelligence agencies, but if such abuses are not reined in, it will be very difficult to reauthorize these provisions when they sunset in 2015,” he wrote.
The Department of Justice, Rotenberg said, has maintained that its justification for these kinds of actions is classified and has not been disclosed.
He said that the Supreme Court will take 30 days to accept amicus briefs from interested parties — EPIC has already lined up three scholars to submit briefs — and that he doesn’t expect the court to consider this petition until October.