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CrimethInc. sticker on a telephone warning users of phone tapping by the U.S. government. (Photo: Lotus Carroll)

Challenge to Sweeping NSA Dragnet Reaches Highest Court Yet

Bulk collection of telephone metadata threatens constitutional rights in 'unimaginable' ways, says ACLU

Nadia Prupis

Lawyers for the ACLU on Tuesday presented arguments before a federal court as they challenged the U.S. government's claimed authority to bulk collect and search America's cell phone data, which the group argues is unconstitutional and exceeds Congressional authority provided by the Patriot Act.

“The government cannot demonstrate, as the statute requires it to, that there are reasonable grounds to believe that all Americans’ call records, over a twelve-year period (and counting), are ‘relevant’ to an ongoing investigation,” the ACLU wrote in its brief (PDF) to the court.

By hearing the case, ACLU vs. Clapper, the Second Circuit Court of Appeals becomes the highest level federal court yet to consider the Obama administration's claims that it can warrantlessly collect the phone records of tens of millions of Americans based on secret approval by the Foreign Intelligence Surveillance Court (FISC) or whether its interpretation of the 2012 FISA Amendment, which governs the court, comports with Congressional intent.

The NSA program, which the government has justified under the Patriot Act’s Section 215, collects records of calls and metadata — such as information about the callers, when calls were placed, and how long they lasted — made by millions of U.S. citizens every day. Phone companies like Verizon handed over the records by order of the FISA court, which required them to give up the data on an “ongoing daily basis.” Under 215, other companies could also be compelled to produce “any tangible thing” that is “relevant” to foreign intelligence or terrorism investigations.

In June 2013, the NSA files leaked by former agency contractor Edward Snowden were published, leading to widespread public outcry against the program and enabling the ACLU, as Verizon customers, and other surveillance targets to prove that they had been monitored.

“The phone-records program… is perhaps the most sweeping surveillance operation ever directed against the American public by our government,” Alex Abdo, ACLU staff attorney, said in a blog post. “And it threatens our constitutional rights in ways unimaginable by the founders of our country.”

Abdo continues:

The legal challenges are also significant for the simple fact that they have forced the government to defend its program in public. For over a decade, the government has thwarted all attempts at public judicial review of the legality of the surveillance programs it inaugurated in the aftermath of 9/11. It erected procedural barriers and invoked the state-secrets doctrine to have those challenges thrown out of court.

But today, we're one step closer to having a definitive ruling on the legality of at least one of those programs. We are optimistic that the court will agree with us that the bulk collection of sensitive information on millions of innocent Americans is unlawful.

Government officials have claimed the collection of their private data is not damaging to Americans, but ACLU argues that it is both unlawful and unconstitutional, involving “collection on a scale far beyond what the statute permits on its face, and far beyond what Congress intended.”

The lawsuit states:

[T]he program violates the Fourth Amendment. Phone records reveal personal details and relationships that most people customarily and justifiably regard as private. The government’s dragnet collection of this information invades a reasonable expectation of privacy and constitutes a search.

[T]he program violates the First Amendment. Government surveillance that substantially burdens First Amendment rights, as this program does, must survive “exacting scrutiny.” A program on this scale, however—one that involves the indefinite and dragnet collection of sensitive information about hundreds of millions of Americans—simply cannot survive that scrutiny.

In a previous court challenge to NSA warrantless surveillance brought by the ACLU in 2008, the U.S. Supreme Court dismissed the case as it ruled the rights group did not have standing. The ACLU, however,  does not believe the issue of standing will be a problem in ACLU v. Clapper because of the FISC order showing that the NSA is collecting the telephone records of all Verizon Business customers – which happens to include the ACLU.

Last week, in yet another challenge to NSA spying, the ACLU and the Electronic Frontier Foundation filed a brief in a separate lawsuit, Klayman vs. Obama, which charges that the NSA's bulk collection of both online and telephone metadata violates the First, Fourth, and Fifth Amendments of the Constitution.

"Dragnet surveillance is and has always has been illegal in the United States," Abdo said in the context of the Klayman. "As even the president himself has recognized, we can keep the nation safe without surrendering our privacy."

Tuesday's arguments in front of the Second Cicruit were streamed live on C-SPAN and may be viewable here.

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