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US Supreme Court takes pass on cyberspying petition

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Although the Supreme Court of the United States decided Monday, not to consider a petition challenging the legality of the National Security Agency’s surveillance activities, one cybersecurity expert at IU expects the issue will eventually come before the nine justices.

Indiana University Maurer School of Law professor Fred Cate said he was not surprised by the Supreme Court’s decision but was still disappointed.

The petition was filed by the Electronic Privacy Information Center after disclosures by whistleblower Edward Snowden revealed the federal government was collecting telephone data on all U.S. citizens. EPIC argued that the Foreign Intelligence Surveillance Court exceeded its legal authority when it ordered Verizon Business Network Services Inc. to turn over to the NSA all telephone records on all customers.

Cate was the lead author of an amicus curiae brief that supported the petition’s call for the Supreme Court to issue a writ of mandamus. After the petition was filed, Cate conceded the probability of the court granting the petition’s request for a writ of mandamus was slim. However, the petition argued, the court had to act because the NSA ignored Congress’s directives.

If the Supreme Court had granted the writ of mandamus, that would have prevented the government from overstepping its authority. Instead, the court sent the opposite message.   

“What the Supreme Court has said, by not saying anything, is ‘tough luck,’” Cate said.

The Obama administration argued the Supreme Court should deny the petition because it had not been considered by the district courts. The problem with that argument, Cate said, is that the district courts and the FISC are on equal footing and one does not have authority over the other.

Even so, a fair number of other petitions charging that FISC’s exclusive jurisdiction is unconstitutional are pending in district courts. A district court or appellate court agreeing with a petitioner would cause the administration to urge the Supreme Court to get involved, Cate said. Federal officials will likely contend the issue is one of national security.

The mere filing of these petitions will not be enough to get the NSA and the administration to rethink its actions, Cate said. In fact, the only thing that got their attention was the concern from industry and foreign leaders over the cyberspying by the United States.







 
 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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