- - Thursday, June 12, 2014

When The Guardian newspaper disclosed last year that the United States government had obtained an order from the Foreign Intelligence Surveillance Court demanding that Verizon Business Network Services produce the phone records of all its customers under Section 215 of the Patriot Act, it opened the door to a year’s worth of startling revelations about the National Security Agency’s vast, global surveillance apparatus.

Just as significant, The Guardian’s publication of the Verizon order — one in a series of surveillance court orders served on major telecommunications service providers since 2006 — opened the door to courthouses across the country for plaintiffs seeking to challenge government surveillance. For decades, lawsuits claiming that the government was engaging in unlawful surveillance had been almost universally stymied — mostly by “standing” law, which determines who can sue, and by the government’s invocation of the state-secrets defense, which dead-ends litigation involving certain national security information. But with a court’s bulk surveillance order now part of the public record, plaintiffs had the smoking gun they needed to challenge government surveillance in court.

And challenge they did.

On June 6 — just a day after the first Guardian story — Larry Klayman, the conservative legal activist, filed a complaint on his own behalf challenging the bulk phone records program in federal court in Washington. Five days later, the American Civil Liberties Union did the same in the Southern District of New York on behalf of itself and its New York affiliate. In July, the Electronic Frontier Foundation, representing a broad-based coalition of 22 civil society groups, filed suit in California. Individual plaintiffs filed suits in Idaho and Texas. This year, Sen. Rand Paul, Kentucky Republican, filed a class-action lawsuit in Washington that seeks to represent all Americans whose phone records have been swept up in the program.

Each of these lawsuits has a different strategic focus, but all of them share a fundamental argument: The government’s indiscriminate collection of Americans’ phone records violates the Fourth Amendment’s warrant requirement and its prohibition of “unreasonable” searches and seizures. Some lawsuits, like the ACLU’s and the Electronic Frontier Foundation’s, also claim that the program violates the First Amendment’s guarantee of the right to freely associate. Some further contend that the program is not authorized by the text of Section 215, which the law’s author, Rep. F. James Sensenbrenner Jr., Wisconsin Republican, has forcefully made clear.

The mere fact that the government has been required to defend the program in public, adversarial litigation itself is remarkable.

For seven years, whenever the government has wanted to renew the program, government attorneys have gone to a secret room — housed for much of that time inside the Department of Justice — to meet privately with a Foreign Intelligence Surveillance Court judge, without anyone present who could challenge the government’s claims. Perhaps not coincidentally, the court has approved and reapproved the program every single time. Yet it was not until August, astoundingly, that the Foreign Intelligence Surveillance Court produced a judicial opinion — even a secret one — explaining its legal rationale. In that opinion, the court concluded that the call records of millions of Americans were “relevant to an authorized investigation,” a requirement of Section 215, and that the government’s bulk collection program passed constitutional muster. The court has published two other opinions addressing the program since.

In December, Judge Richard Leon, presiding over Klayman v. Obama in U.S. District Court for the District of Columbia, became the first judge to issue an opinion about the phone records program after hearing arguments from two sides in public proceedings — and his conclusion was very different from the Foreign Intelligence Surveillance Court‘s.

Judge Leon wrote that the government’s “almost Orwellian” program “almost certainly” violates the Fourth Amendment. He rejected the government’s primary defense of the program: that a 1979 Supreme Court case, Smith v. Maryland, foreclosed the plaintiffs’ argument that Americans have a reasonable expectation of privacy in their calling records. Judge Leon recognized that though Smith approved of the collection of phone records, it involved the records of merely a single criminal suspect over several days. In other words, Smith did not address dragnet surveillance of the kind authorized by the phone records program.

Judge Leon also underscored that an individual’s phone records — or “telephony metadata,” in the program’s terms — could reveal a great amount of sensitive personal information.

That finding has been backed up by President Obama’s own surveillance review group, the Privacy and Civil Liberties Oversight Board, and numerous academic studies. In holding that the program was unreasonable under the Fourth Amendment, Judge Leon pointed to the government’s failure to prove that the program even once helped prevent a terrorist attack.

Less than two weeks after Judge Leon’s ruling, in ACLU v. Clapper in New York, Judge William H. Pauley III rejected Judge Leon’s approach, swallowing whole the government’s argument that Smith “controls” the Fourth Amendment analysis of the bulk phone records program. He ruled that the program is constitutional.

In addition, a U.S. District Court judge in Idaho recently ruled for the government, but he did so reluctantly, calling on the Supreme Court to revisit Smith and side with Judge Leon on the constitutionality of the program.

As the Idaho judge suggested, these District Court rulings are not the end of the story. The government appealed the Klayman ruling to the D.C. Circuit, where procedural delays have stalled the case for months. In New York, the Clapper judgment is on appeal in the 2nd U.S. Circuit Court of Appeals, where a three-judge panel likely will hear oral arguments this summer. The Idaho plaintiffs also plan to appeal to the 9th Circuit.

Beyond the courts of appeals, it is conceivable that one of these cases could reach the Supreme Court as early as next term. Whether one does, and which one it is, will depend on a host of factors, not the least of which is whether pending legislative reforms end the bulk phone records program as implemented.

Whatever the outcome in the courts, it is encouraging to see the legal debate play out in public. For decades, government surveillance was effectively immune from judicial review because of standing and state secrets. For seven years, the debate over Section 215 hardly played out at all, and even then in secret before the Foreign Intelligence Surveillance Court.

Almost a year after The Guardian’s first NSA disclosure, even with much yet to be done, these lawsuits are a tangible sign of progress.

Brett Max Kaufman is a legal fellow with the American Civil Liberties Union’s National Security Project.

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