ACLU Files Lawsuit Challenging Constitutionality of NSA Phone Spying Program

The American Civil Liberties Union and the New York Civil Liberties Union today filed a constitutional challenge to a surveillance program under which the National Security Agency vacuums up information about every phone call placed within, from, or to the United States. The lawsuit argues that the program violates the First Amendment rights of free speech and association as well as the right of privacy protected by the Fourth Amendment. The complaint also charges that the dragnet program exceeds the authority that Congress provided through the Patriot Act.

"This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens," said Jameel Jaffer, ACLU deputy legal director. "It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy."

The ACLU is a customer of Verizon Business Network Services, which was the recipient of a secret FISA Court order published by The Guardian last week. The order required the company to "turn over on 'an ongoing daily basis' phone call details" such as who calls are placed to and from, and when those calls are made. The lawsuit argues that the government's blanket seizure of and ability to search the ACLU's phone records compromises sensitive information about its work, undermining the organization's ability to engage in legitimate communications with clients, journalists, advocacy partners, and others.

"The crux of the government's justification for the program is the chilling logic that it can collect everyone's data now and ask questions later," said Alex Abdo, a staff attorney for the ACLU's National Security Project. "The Constitution does not permit the suspicionless surveillance of every person in the country."

The ACLU's 2008 lawsuit challenging the constitutionality of the FISA Amendments Act, which authorized the so-called "warrantless wiretapping program," was dismissed 5-4 by the Supreme Court in February on the grounds that the plaintiffs could not prove that they had been monitored. ACLU attorneys working on today's complaint said they do not expect the issue of standing to be a problem in this case because of the FISA Court order revealed last week.

Yesterday, the ACLU and Yale Law School's Media Freedom and Information Access Clinic filed a motion with the FISA Court, requesting that it to publish its opinions on the meaning, scope, and constitutionality of Patriot Act Section 215. The ACLU is also currently litigating a Freedom of Information Act lawsuit, filed in October 2011, demanding that the Justice Department release information about the government's use and interpretation of Section 215.

"There needs to be a bright line on where intelligence gathering stops," said NYCLU executive director Donna Lieberman. "If we don't say this is too far, when is too far?"

Attorneys on the case are Jaffer and Abdo along with Brett Max Kaufman and Patrick Toomey of the ACLU, and Arthur N. Eisenberg and Christopher T. Dunn of the NYCLU.

An interactive graphic examining the secret FISA Court order revealed last week is available here.