The Supreme Court is in no hurry to step into the fray when it comes to U.S. surveillance law.
Monday, the high court rejected a request to hear a direct challenge to the U.S. government’s bulk collection of communications data collection based on information leaked by former National Security Agency contractor Edward Snowden in June. The Electronic Privacy Information Centerhad appealed directly to the Supreme Court, arguing that it was the only judicial body with the authority to overrule the secret foreign intelligence surveillance court. The high court rarely grants expedited requests to hear cases that haven’t already made their way through the lower courts.
The Supreme Court has previously expressed reluctance to get involved when it comes to secret government monitoring of communications. In February, the court ruled that a group of activists, journalists, and human rights lawyers had no standing to challenge the law because they couldn’t prove that they had been affected. Justice Samuel Alito wrote that the plaintiffs’ complaints were “speculative and “hypothetical,” and that that had “no actual knowledge of the government’s targeting practices.” The reason they had no knowledge was because the way the government had been interpreting the law was a secret.
That rationale could have forestalled any and all challenges to the law absent concrete evidence that anyone was targeted. That evidence emerged in June when Snowden leaked a FISA court order granting an NSA request for the communications data of millions of Verizon customers. Shortly afterward, EPIC filed its challenge, which also asked the court to vacate the FISA court order.
There are other pending challenges to the law making their way through the courts, so absent changes by Congress the high court is likely to have to rule on the constitutionality of NSA surveillance eventually. Just not anytime soon.
Adam Serwer