The American Civil Liberties Union filed a lawsuit Tuesday against top Obama administration officials over the “dragnet” collection of domestic phone call logs from Verizon Wireless. The suit contends that the program, revealed by whistleblower Edward Snowden last week, violated the First and Fourth Amendments.
"The practice is akin to snatching every American’s address book — with annotations detailing whom we spoke to, when we talked, for how long, and from where," said the ACLU in the complaint. "It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations."
In order to further justify their standing, the ACLU added that it “is likely to have a chilling effect on whistle-blowers and others who would otherwise contact” the organization for legal assistance.”
The suit was filed against Director of National Intelligence James R. Clapper, NSA Director Keith Alexander, Secretary of Defense Chuck Hagel, Attorney General Eric Holder, and FBI Director Robert Mueller III. According to the New York Times, similar cases in the past have been thrown out after the government was able to argue that “litigation over any classified program would reveal state secrets or that the plaintiffs could not prove they were personally affected and so lacked standing to sue.”
In this case the government has declassified the existence of the program collecting phone logs, and so that program can be challenged. However, it will be difficult for the ACLU to use any evidence directly pertaining to the Foreign Intelligence Surveillance Court that authorized the program since the Supreme Court ruling in Clapper v. Amnesty International USA says that Americans lack standing to challenge using confidential evidence, such as is the case for much of the FISA court’s rulings.
In 2008 the ACLU’s case against the government challenging the constitutionality of the FISA Amendments Act in 2008 was thrown out for that very reason. This time, the ACLU will argue that the Foreign Intelligence Surveillance Court ruling under section 215 of the PATRIOT Act that compelled Verizon to hand over phone logs constituted permitted illegal search and seizure, and so all of the data acquired should be purged.
The two most pertinent precedents for this case are Smith v. Maryland (1979) showing that people who have revealed information to companies such as phone providers should not have a reasonable expectation of privacy. On the other hand, the Supreme Court ruled in 2012 that GPS tracking, such the tracking that can be done using phone logs, may raise privacy issues.
The ACLU case has many supporters, including Rep. Jim Sensenbrenner (R-Wis.) who says, “The administration claims authority to sift through details of our private lives because the PATRIOT Act says that it can … I disagree. I authored the PATRIOT Act, and this is an abuse of that law.”
Much of the fear surrounding the NSA data-mining programs can be attributed to the justified fear that, although the data is currently used for counterterrorism, history has shown that powers granted to the government for one purpose are often abused for another purpose. This suit is important in that it will likely help clear up the legality of surveillance programs at the center of the privacy versus security debate.