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Fight over NSA Spying Spills into U.S. Courts

The U.S. government argues there is no expectation of privacy for so-called metadata collected by the NSA. Credit: Zofeen Ebrahim/IPS

ATLANTA, Georgia, Jul 19 2013 (IPS) - A wide variety of individuals and organisations have filed lawsuits challenging the National Security Agency (NSA) and other federal agencies and officials for conducting a massive, dragnet spying operation on U.S. citizens that was recently confirmed by whistleblower Edward Snowden.

At least three ongoing lawsuits are challenging the NSA’s practice of indiscriminately collecting and storing information related to all phone calls to and from U.S. citizens – referred to as “telephony metadata” by the government – as in violation of several protections guaranteed under the constitution.

"Metadata is extraordinarily important. You could make a pretty clear map of your political views, your religious affiliations." -- Rebecca Jeschke of the Electronic Frontier Foundation

In addition, at least one lawsuit challenges the NSA’s PRISM programme, which collects a variety of multimedia communications of non-U.S. citizens that are handled by U.S.-based companies such as Facebook, Google, MSN and Yahoo.

Snowden, a former contractor for Booz Allen Hamilton, a computer technology consulting firm that works with the NSA, revealed the NSA programmes in interviews with several publications, including the Guardian newspaper in the United Kingdom, which was the first to begin publishing related documents on Jun. 6.

Snowden has been stuck at an airport terminal in Russia for several weeks and is currently seeking asylum there, as he has said he fears he would be wrongfully prosecuted, tortured, or even killed by the U.S. government.

One of the latest lawsuits to challenge the telephonic spying programme, First Unitarian Church of Los Angeles, et al., v. National Security Agency, et al., was filed on Tuesday.

The plaintiffs “are organisations with members with First Amendment rights to freedom of association,” Rebecca Jeschke, a digital rights analyst with the Electronic Frontier Foundation, told IPS. “CALGUNS [a California-based gun rights advocacy group] is scared people won’t call their hotline.

“We have the First Unitarian Church as a plaintiff. They are concerned people won’t use the services they have, because they’re afraid they’re going to be associated with other services they have. Metadata is extraordinarily important. You could make a pretty clear map of your political views, your religious affiliations,” Jeschke said.

The government admits the telephonic spying programme collects the phone numbers, time and date, and durations of all U.S. phonecalls.

The plaintiffs argue the programme is a violation of the First Amendment because it has a chilling effect on the rights to free speech, assembly, practice of religion, and to petition the government for a redress of grievances; the Fourth Amendment right to be free from unreasonable searches and seizures; the Fifth Amendment right to due process; and various federal statutes related to electronic surveillance.

The federal government has said it collects and stores the metadata for several years – in order to preserve it – but only uses it when it decides there is a national security reason to search the information.

The government also argues there is no expectation of privacy for metadata under the Fourth Amendment because it is owned by the phone companies.

“The Fourth Amendment question is in part going to turn on the scope of search and the reasonableness. Accessing metadata for persons for which some level of suspicion [exists] is one thing, accessing metadata for everybody is a different matter,” Prof. Gerry Weber, an adjunct professor at Emory School of Law specialising in constitutional law, told IPS.

“This is all an evolving technology area, where the Supreme Court has generally been hit or miss. They’re dealing with new electronic technologies as they come,” Weber said.

On Jun. 9, Larry Klayman, the former chairman of Judicial Watch, and two other citizens filed a federal class action lawsuit challenging the telephonic surveillance programme.

On Jun. 11, the American Civil Liberties Union (ACLU) also sued over the telephonic spying programme.

The ACLU had previously sued the NSA in 2008, challenging the constitutionality of the Foreign Intelligence Surveillance Act (FISA) of 1978 Amendments Act of 2008 – which the government has used as part of its secret legal justification for its programme – but their complaint was dismissed by the U.S. Supreme Court in February 2013 on the grounds that the ACLU could not prove it had been monitored by the government.

However, given the recent revelations, and given that the ACLU is a Verizon subscriber, the organisation should now have standing.

Verizon, a phone service provider, was subject to a previously-secret court order dated Apr. 25 by U.S. Foreign Intelligence Surveillance Court Judge Roger Vinson compelling it to turn over customers’ phone records to the NSA.

But advocates are confident that Verizon is not the only participant.

“The director of National Intelligence, James Clapper, acknowledged the Verizon order was part of a large programme from the NSA. It would be surprising if it were only Verizon. That’s [just] the document that’s leaked. We do have intelligence officials saying it was a wide-ranging programme… ‘broad in scope,’” Jeschke said.

Klayman has also sued over the multi-media eavesdropping programme, PRISM.

In addition, the Electronic Privacy Information Center (EPIC) filed a Petition for a Writ of Mandamus and Prohibition, or a Writ of Certiorari, with the Supreme Court on Jul. 8. The petition asks the court to vacate the Apr. 25 order by the FISA Court that had compelled Verizon to send telephony metadata to the NSA.

In addition to arguments similar to those made in the other cases, the petition also argues the NSA telephonic spying programme violates attorney-client privilege, and is a violation of separation of powers because the NSA is also collecting phone records of Congress and the judiciary.

Meanwhile, in separate, ongoing class action litigation the EFF has had against the NSA since 2008, Jewel v. NSA, a federal judge last week rejected a motion by the federal government to dismiss the suit. That case alleged ongoing, dragnet surveillance by the NSA on millions of U.S. citizens, even years prior to Snowden’s revelations.

“We’ve asked this case to be associated with Jewel v. NSA. There were other leaks. The fact that this programme was ongoing was something that many people were aware of before these leaks came out – it’s just the documents from the FISA Court confirmed it,” Jeschke said.

A whistleblower with AT&T, who had wired a room that he believed was for the government to track U.S. citizens’ phonecalls, came to EFF in 2006.

“He realised he was wiring up Big Brother and came to us,” Jeschke said.

Meanwhile, in a U.S. House Judiciary Committee hearing this week on the NSA spying programmes, members of Congress of both parties told representatives of the NSA and the Federal Bureau of Investigation that they believe the administration has abused the authority granted to it by Congress.

Rep. Jim Sensenbrenner, a powerful Republican from Wisconsin, warned that if the administration did not stop collecting the phone records of U.S. citizens indiscriminately, that a provision, Section 215 of the Patriot Act, known as the business records provision, will expire, and that there will not be enough votes in Congress to renew it.

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