Is the NSA Spying Scandal Headed to the Supreme Court? Case Likely Comes Down to Standing

While the U.S. Supreme Court is the highest court in the land, it can only consider cases that are properly before it. One of the biggest roadblocks for litigants is legal standing. In basic terms, a party must have suffered an actual injury in order to ask the Court for judicial relief.

Most recently, the federal government and the Electronic Privacy Information Center (EPIC) have been sparring over whether the Supreme Court can hear the privacy group’s legal challenge to the U.S. National Security Agency’s (NSA) controversial data collection program.

EPIC has filed a writ of mandamus requesting that the Supreme Court overturn an order by the U.S. Foreign Intelligence Surveillance Court that requires Verizon to turn its phone records over to the NSA. It alleges that the NSA has exceeded its authority by seeking such unfettered access to U.S. phone records, arguing that “even without the content of the calls, [phone records] can reveal an immense amount of sensitive, private information.”

In response to the petition, the federal government argues that EPIC lacks standing to bring the suit. It specifically points to the language of the Patriot Act, which only authorizes legal challenges by the U.S. government or entities that receive government orders to produce business records.

Overturning a ruling of the U.S. Foreign Intelligence Surveillance Court in response to a writ of mandamus would be a “drastic and extraordinary remedy that is reserved for really extraordinary causes,” the response brief states. Rather, the government argues that the proper avenue to seek legal redress is to file a suit in federal court, rather than appealing directly to the Supreme Court.

As previously discussed on this Constitutional Law Blog, similar claims failed last term. In Clapper v. Amnesty Intl. USA, the Supreme Court ruled that the plaintiffs, which included attorneys and human rights, labor, legal, and media organizations, lacked standing to bring a suit challenging the FISA Amendments Act of 2008, which authorized electronic surveillance targeting non-U.S. persons abroad. The justices specifically rejected the plaintiffs’ argument that they had suffered injury in fact because there was a reasonable likelihood that their communications with their foreign contacts will be intercepted under the wiretapping program.

Similarly, EPIC will have difficulty proving that the Foreign Intelligence Surveillance Court order will lead to surveillance of its individual phone records. Without a real stake in the case, the Supreme Court can deny the petition on the issue of standing alone.