consultants are sandburs

Friday, July 12, 2013

Microsoft and PRISM. And DuckDuckGo. [And a petition to the Supreme Court, per the UPDATE]

Guardian, here and here.

DuckDuckGo homepage, here. Plus, on a "Why use it" basis, this link and here.

This chart:

Source, Guardian, here.

Developments of EPIC proportions, here and here. As to FISA secret courts, and who/how private privacy advocates are to attain judicial review of their misdeeds, this excerpt gives some detail from the quite extensive post here (active links omitted).

EPIC's Petition

EPIC is seeking a writ of mandamus from the Supreme Court to vacate the Verizon Order. A writ of mandamus is a command by a higher court to a lower court or government official. Mandamus is appropriate when a lower court has exceeded its lawful authority. The United States Supreme Court has laid out three conditions that must be fulfilled before a writ of mandamus can be issued: (1) the party must have no other adequate means to attain the relief they deserve, (2) the party must satisfy the burden of showing that their right to issuance of the writ is clear and indisputable, and (3) the issuing court must be satisfied that the writ is appropriate under the circumstances.

"Mandamus relief is warranted because the FISC exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation." - EPIC petition to Supreme Court

In this case, EPIC cannot relief from any other court other than the Supreme Court. Normally, when a court issues an unlawful order, the adversely affected parties can intervene or appeal to a higher court. However, the FISC and Foreign Intelligence Surveillance Court of Review only have jurisdiction to hear petitions by the Government or recipient of the FISC Order. Neither party to the order represents EPIC’s interests. As EPIC is not a recipient of the order, it cannot challenge it in the FISC. Other federal and state trial and appellate courts have no jurisdiction over the FISC, and therefore cannot grant relief.

The FISC order exceeded the scope of the FISC’s jurisdiction under the FISA. The FISA requires that production orders be supported by “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. . .” However, we now know that the FISC issued an order requiring disclosure of records for all telephone communications “wholly within the United States, including local telephone calls.” It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation. Such an interpretation would eliminate the FISA’s core limiting principle and check on executive authority. A writ of mandamus is a proper judicial remedy to rectify the FISC’s exceeding of its statutory authority.

"To define the scope of the records sought as 'everything' nullifies the relevance limitation in the statute. If law enforcement has 'everything,' there will always be some subset of 'everything' that is relevant to something. At that level of breadth, the relevance requirement becomes meaningless." - EPIC petition to Supreme Court

The NSA surveillance has created extraordinary circumstances. The records acquired by the NSA under the FISC Order detail the daily activities, interactions, personal and business relationships, religious and political affiliations, and other intimate details of millions of Americans. Surveillance of all domestic telephone records exposes confidential and privileged associations. It chills free expression − political, associative, religious, or otherwise. And because the NSA sweeps up judicial and Congressional communications, it inappropriately concentrates power to the Executive Branch by allowing them to surveil the constitutionally mandated roles of the other branches of government.

EPIC's full post links to its 83 page mandamus Petition available as an online pdf document. It also publishes the 4 page underlying NSA phone surveillance order that Snowden disclosed publicly earlier through Guardian.

It is noteworthy that Larry Klayman in his "class action suits" for big-buck damages has simply ignored the question of how/whether regular courts have jurisdiction to intrude into our nation's secret court activities.

If I recall the Constitution correctly, Congress can legislatively restrict judicial review jurisdiction of specific things, and I do not know whether Patriot Act and FISA mischief was passed with an expression of clear legislative intent to constrain judicial jurisdiction regarding private party redress in executive declared secret court matters.

It seems new judicial ground is being broken because until recently we did not as a nation expressly tolerate courts acting in total secret with even the nature of docket filings/titles being secret from the public.

This EPIC move is a serious confrontation of all of these questions. Will the Supreme Court duck the issue? Ii will be interesting to see what ensues.

____________FURTHER UPDATE__________
Volokh Conspiracy, July 11, here.

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