- Apr 24, 2013
- 1,200
WASHINGTON—The National Security Agency’s collection of Americans’ phone records will face a fresh test this coming week when a Washington, D.C., appeals-court panel hears arguments over the surveillance program.
Tuesday’s arguments are just one of three federal appeals-court challenges to the NSA’s gathering of millions of Americans’ phone records—an issue that could eventually reach the U.S. Supreme Court. The cases, which include two separate lawsuits in New York and San Francisco, were prompted by former NSA contractor Edward Snowden ’s revelations last year detailing the scope of U.S. government surveillance.
Mr. Snowden’s disclosures touched off legal, political and policy battles over how much latitude the government should have to spy on its own citizens and people in other countries.
Tuesday’s case stems from a lawsuit filed last year by conservative legal activist Larry Klayman seeking to end the surveillance.
In 2013, U.S. District Court Judge Richard Leon found that the government’s program “almost certainly” violated the Constitution and noted government lawyers defending it couldn’t point to a single terrorism conspiracy stopped by the surveillance.
The Obama administration appealed Judge Leon’s decision, filing papers challenging Mr. Klayman’s standing to even bring such a case. The U.S. argued the simple act of government computers collecting his or anyone else’s phone records aren’t violations of the Constitution’s ban on unreasonable searches or seizures and, in its appeals-court filings, suggests such issues only come into play when a government employee looks at a specific person’s phone records.
“Even if plaintiffs have cognizable Fourth Amendment privacy interests in play here, those interests are minimal, especially given the remote likelihood that metadata about plaintiffs’ calls has been, or would in the future ever be, reviewed by a human being,’’ Justice Department lawyer Joyce Branda wrote in a September filing.
The NSA, citing Section 215 of the Patriot Act, gathers millions of Americans’ phone records, collecting the time, duration and numbers called, but not the actual contents of those conversations. Officials say compiling the vast library is necessary so when a terror suspect’s phone number is identified, the database can be searched to find any other suspicious contacts. Privacy advocates say that collection is a violation of the Fourth Amendment’s prohibition of unreasonable searches and seizures.
Patrick Toomey, a lawyer with the American Civil Liberties Union, which is challenging the legality of the phone-records program, said that over the past year, the president’s own privacy advisers concluded the government could track the calls of terror suspects without collecting the records of millions of innocent Americans.
“Against that background, I’m optimistic that the panel will find the program unconstitutional,’’ he said.
The Snowden revelations did more than spark a renewed public debate about surveillance—they also brought the issue outside the Foreign Intelligence Surveillance Court, which for years had secretly approved the program.
Even if an appeals court or the Supreme Court eventually declares the phone-surveillance program unconstitutional, it may not matter. The law authorizing the program is due to expire in June, and chances of renewal are uncertain, since some lawmakers have said they will oppose it in the face of public backlash.
Lawsuits from privacy advocates aren’t the only legal challenges to NSA surveillance. Suspects charged with terrorism have begun demanding prosecutors disclose how mass surveillance may have led to their arrests.
So far, no defendant has won such a challenge, but in New York, one was allowed to withdraw his guilty plea so he could fight the issue.
Tuesday’s arguments are just one of three federal appeals-court challenges to the NSA’s gathering of millions of Americans’ phone records—an issue that could eventually reach the U.S. Supreme Court. The cases, which include two separate lawsuits in New York and San Francisco, were prompted by former NSA contractor Edward Snowden ’s revelations last year detailing the scope of U.S. government surveillance.
Mr. Snowden’s disclosures touched off legal, political and policy battles over how much latitude the government should have to spy on its own citizens and people in other countries.
Tuesday’s case stems from a lawsuit filed last year by conservative legal activist Larry Klayman seeking to end the surveillance.
In 2013, U.S. District Court Judge Richard Leon found that the government’s program “almost certainly” violated the Constitution and noted government lawyers defending it couldn’t point to a single terrorism conspiracy stopped by the surveillance.
The Obama administration appealed Judge Leon’s decision, filing papers challenging Mr. Klayman’s standing to even bring such a case. The U.S. argued the simple act of government computers collecting his or anyone else’s phone records aren’t violations of the Constitution’s ban on unreasonable searches or seizures and, in its appeals-court filings, suggests such issues only come into play when a government employee looks at a specific person’s phone records.
“Even if plaintiffs have cognizable Fourth Amendment privacy interests in play here, those interests are minimal, especially given the remote likelihood that metadata about plaintiffs’ calls has been, or would in the future ever be, reviewed by a human being,’’ Justice Department lawyer Joyce Branda wrote in a September filing.
The NSA, citing Section 215 of the Patriot Act, gathers millions of Americans’ phone records, collecting the time, duration and numbers called, but not the actual contents of those conversations. Officials say compiling the vast library is necessary so when a terror suspect’s phone number is identified, the database can be searched to find any other suspicious contacts. Privacy advocates say that collection is a violation of the Fourth Amendment’s prohibition of unreasonable searches and seizures.
Patrick Toomey, a lawyer with the American Civil Liberties Union, which is challenging the legality of the phone-records program, said that over the past year, the president’s own privacy advisers concluded the government could track the calls of terror suspects without collecting the records of millions of innocent Americans.
“Against that background, I’m optimistic that the panel will find the program unconstitutional,’’ he said.
The Snowden revelations did more than spark a renewed public debate about surveillance—they also brought the issue outside the Foreign Intelligence Surveillance Court, which for years had secretly approved the program.
Even if an appeals court or the Supreme Court eventually declares the phone-surveillance program unconstitutional, it may not matter. The law authorizing the program is due to expire in June, and chances of renewal are uncertain, since some lawmakers have said they will oppose it in the face of public backlash.
Lawsuits from privacy advocates aren’t the only legal challenges to NSA surveillance. Suspects charged with terrorism have begun demanding prosecutors disclose how mass surveillance may have led to their arrests.
So far, no defendant has won such a challenge, but in New York, one was allowed to withdraw his guilty plea so he could fight the issue.
