On Tuesday, the American Civil Liberties Union (ACLU), together with the New York Civil Liberties Union (NYCLU), filed a lawsuit in the U.S. District Court in New York which claims that the National Security Agency's (NSA) surveillance of millions of Verizon customers is unconstitutional. The suit (see embed below) lists key members of the Obama administration's national security team as the defendants, including Director of National Intelligence James Clapper, NSA Director Keith Alexander, Secretary of Defense Chuck Hagel, Attorney General Eric Holder, and Federal Bureau of Investigation (FBI) Director Robert Mueller. It argues that the phone surveillance program violates both the First Amendment rights of free speech and association, and the Fourth Amendment's protections against unreasonable searches and seizures.
The lawsuit is the second to challenge the legality of the NSA's surveillance programs since Edward Snowden leaked details of them to reporters. On Sunday, Larry Klayman, the former chairman of Judicial Watch, filed a suit arguing that the Verizon program violates both the Constitution and federal laws. Given the widespread outrage surrounding the revelations about the goverment's surveillance practices, these lawsuits probably just represent the tip of iceberg in terms of efforts to challenge the legality of the programs.
The ACLU lawsuit "challenges the government's dragnet acquisition of Plaintiffs' telephone records" under the Patriot Act, calling it "akin to snatching every American's address book." In a statement, Jameel Jaffer, ACLU deputy legal director, argued that the program "is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens." The lawsuit argues that the collection of telephony metadata from Verizon customers "is not authorized by Section 215 [of the Patriot Act] and violates the First and Fourth Amendments. The ACLU is seeking a ruling that the practice, which the suit calls "Mass Call Tracking," is unlawful, an order requiring the government to cease the practice, and for the government to delete all call records relating to the plaintiffs' communications from its databases.
The ACLU is currently a Verizon customer, and the NYCLU used to be. In the lawsuit they claim that because the government is monitoring the ACLU's communications, and likely still has metadata from NYCLU communications on its databases, this information "could readily be used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations" and that this is "likely to have a chilling effect on people who would otherwise contact Plaintiffs." The ACLU argues that many people may now "reasonably think twice" about communicating with them given the government's surveillance practices.
The ACLU and Yale Law School's Media Freedom and Information Access Clinic have also recently filed a motion with the Foreign Intelligence Surveillance Court (FISC) which seeks the "release of secret court opinions that permit the government to acquire Americans' phone records en masse." The ACLU points out that the public has a right to know the supposed legal justification by which the phone records of millions of people are being spied upon, regardless of whether they as suspected of any wrongdoing or not.
The fact that the ACLU lawsuit, and Klayman's before it, have been filed is testament to the invaluable public service that Snowden has carried out by leaking the information about the surveillance programs. It has sparked a national debate about the government's practices and the legal challenges so far are hopefully just the beginning of effort to challenge the constitutionality of what the NSA is doing.
As Alex Abdo, a staff attorney for the ACLU's National Security Project, argues, "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." However, he continues, "the Constitution does not permit the suspicionless surveillance of every person in the country." Although the government is already pushing back against claims that its surveillance practices are unconstitutional, at least now it is being forced to defend them amidst greater public and legal scrutiny. Watch this space.