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Supreme Court won’t say if NSA phone tracking is legal – yet

The U.S. Supreme Court has rejected an effort to put blinders on the National Security Agency’s prying eyes.

On Monday, the Supreme Court revealed (pdf) that it would not hear a complaint that challenges the constitutionality of the NSA’s collection of millions of Verizon phone records, including those of millions of Americans.

The complaint, brought forth by the Electronic Privacy Information Center (EPIC), argued that the NSA exceeded its legal authority by ordering Verizon to turn over telephone “metadata” – which includes numbers, times, call duration, and other data related to phone calls – because much of this data pertained entirely to calls made within the United States. The NSA’s activities are meant to target only foreign communications.

EPIC’s plea is the first challenge to the NSA’s activities to reach the Court since Edward Snowden’s leaks were first published in June. The Court did not explain its reasons for rejecting the case, though it is not surprising that it did so. As SCOTUS Blog reports, EPIC’s strategy was “unusual” due to the fact that it did not try to bring the complaint before lower federal courts before heading to the Supreme Court.

The reason for this, according to EPIC, is that no other court has the authority to overturn decisions by the Foreign Intelligence Surveillance Court (FISC), which grants NSA court orders, like the Verizon order, in secret. The Department of Justice said EPIC could bring its plea before lower courts, and the Obama administration fought back against EPIC’s efforts to have the Supreme Court hear its case.

Numerous legals scholars have concluded (pdf 1, 2) that the NSA’s collection of Verizon phone metadata violates the Fourth Amendment’s protection against unreasonable searches and seizures. As for the EPIC complaint, it will likely restart through lower courts in an attempt to make it to the Supreme Court.