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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. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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