How Can The Constitutionality of NSA Spying be Challenged? Even the Big Guys Don’t Know.

When the NSA’s domestic spying scandal broke last month, I wanted to sue the NSA so badly. I have standing, I have the legal understanding required to generate a colorable complaint, and I’m genuinely pissed to know that the government has my phone records. But, as I presently have four lawsuits in federal court already, in addition to a day job, I decided I wouldn’t be able to start a fifth without taking time away from the other four.

Instead, I created My NSA Records, a site where you could either request your records under FOIA or send a motion to the FISA court demanding the deletion of your records, the latter of which would be the route I would have used to initiate a court challenge to the spying. Under the FISA court rules, “a party” may move or petition that court and, foolishly for the government, there is no filing fee whatsoever. Were the motion or petition denied, it could be appealed to the FISA Court of Review, and then to the U.S. Supreme Court.

Not so, says the Electronic Privacy Information Center. Apparently interpreting “a party” to mean “a party named in a FISA court order” rather than to mean “anyone” (as I read it), EPIC filed a motion for a writ of mandamus with the U.S. Supreme Court. In it, they argue that the U.S. Supreme Court is the only court that may tame the rogue FISA court, stating that “the rules of the FISC bar EPIC from seeking relief before the FISC” and that “lower federal courts have no jurisdiction to hear EPIC’s appeal.”

Not so, says the American Civil Liberties Union! Their view, apparently, is that challenging the FISA court’s order isn’t necessary. Just challenge the constitutionality of the NSA’s actions, instead of directly challenging the order that allowed for those actions, and you’re good to go in those pesky “lower federal courts.” Their collateral attack on the FISA court order was filed in U.S. District Court for the Southern District of New York.

So, which court really has jurisdiction to stop the NSA? Only time will tell, but one thing is for sure: the NSA is being challenged on every front possible.