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US, UK watchdogs file legal moves to curb government surveillance

Privacy protectors petition Supreme Court, UK tribunal to rein in NSA, GCHQ

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Two privacy watchdogs, one in the US and one in the UK, have filed legal actions against their respective governments, petitioning them to curtail - or at minimum uncover - their domestic surveillance operations.

In the US, the Electronic Privacy Information Center (EPIC) has filed a petition (PDF) with the US Supreme Court, asking the Supremes to vacate what it alleges is "an unlawful order by the Foreign Intelligence Surveillance Court that enables the collection of all domestic phone record by the NSA."

The EPIC petition focuses specifically on an order by the Foreign Intelligence Surveillance Court (FISC) that permitted the FBI and NSA to obtain what EPIC characterizes as "vast amounts of telephone call data of Verizon customers." EPIC is a Verizon customer.

EPIC explains that it finds itself forced to petition the Supreme Court directly because it has no other recourse:

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.

So, to paraphase the ol' Ghostbusters meme, "Who you gonna call? The Supremes!" The EPIC petition requests the Supreme Court to halt the disclosure of details of Americans' telephone usage – specifically those disclosed by Verizon – alleging that the FISC did not have legal authority to compel Verizon to hand that metadata to the NSA.

According to EPIC, the FISC order exceeded the autnority granted to is under the Foreign Intelligence Surveillance Act (FISA), which states that such orders require "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation."

From EPIC's point of view, the FISC order overreaches. "It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation," they say.

In the UK, Privacy International filed a motion in the Investigatory Powers Tribunal (IPT) listing as defendants the secretaries of state for the Home Office and the Foreign and Commonwealth Office, the Secret Intelligence Service and Security Service, the Government Communications Headquarters (GCHQ), and the Attorney General.

Privacy International describes its action as addressing the UK governments action on two fronts:

Firstly, for the failure to have a publicly accessible legal framework in which communications data of those located in the UK is accessed after obtained and passed on by the US National Security Agency through the Prism programme. Secondly, for the indiscriminate interception and storing of huge amounts of data via tapping undersea fibre optic cables through the Tempora programme.

"One of the underlying tenets of law in a democratic society is the accessibility and foreseeability of a law," said Privacy International research head Eric King. "If there is no way for citizens to know of the existence, interpretation, or execution of a law, then the law is effectively secret."

Secret law is not legitimate law, said King. "It is a fundamental breach of the social contract if the Government can operate with unrestrained power in such an arbitrary fashion."

The Tempora programme to which Privacy International objects is allegedly as indescriminately sweeping as the FISC-ordered provision of telephone metadata to the FBI and NSA. According to the Guardian, 300 GCHQ staff and 250 US NSA analysts pore through vast amounts of private communications coursing through fibre-optic cables linking the UK to the rest of the globe.

"The Tempora programme by its very nature appears to violate the underlying requirement for interception," Privacy International contends, "which requires that surveillance is both necessary and proportionate under the Regulation of Investigatory Powers Act 2000 (RIPA)."

It is unlikely that either the US Supreme Court or the IPT will be quick to issue a stay on their respective governments' alleged monkeyshines, so you should have plenty of time to plow through Kafka's The Trial while you're waiting for their decisions. ®

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