In 2008, the ACLU, on behalf of Amnesty International and several other groups, sued the U.S. government after learning of its warrantless wiretapping program, claiming their civil and constitutional rights violations. The case went all the way to the Supreme Court, which threw out the case in February 2013 on grounds that they lacked standing because there had been no proof that the government had specifically targeted them.
Then Edward Snowden arrived on the scene.
On June 5, 2013, the Guardian published a Foreign Intelligence Surveillance Court (FISC) order from the National Security Agency directing Verizon Business Network Services to provide daily records for a three month period of the “telephony metadata” for all telephone calls on its network. The order was part of thousands of documents stolen by Snowden while employed by a NSA contractor. In the months that followed, the government acknowledged it had been receiving this kind of data since at least 2006.
The meta-data included the numbers that made and received calls, and the date, time and duration of the call. The ACLU and millions of other Verizon customers now had proof they had been directly affected by the government’s surveillance program.
Several lawsuits were filed, with plaintiffs claiming violation of civil and constitutional rights by the government. On December 16, U.S. District Court Judge Richard Leon ruled that Verizon customer and former U.S. Department of Justice lawyer Larry Klayman, demonstrated a substantial likelihood of success of proving that his Fourth Amendment rights (protections against unlawful search and seizure) had been violated and would suffer irreparable harm without relief.
He did not rule that it was unconstitutional but that it was likely it would be proven so. He put a stay on the injunction against the program while the government appeals.
Eleven days later a ruling was entered on the Government’s motion to dismiss the new case brought by ACLU and several others, which was filed just days after the Guardian article. The plaintiffs also argued violation of Fourth Amendment rights and sought an injunction against the continuation of the surveillance. This time, New York U.S. District Judge William H. Paley ruled their claims did not have merit and that not only was the program lawful, but a necessary tool in protecting the nation’s security, granting the Government’s motion for dismissal.
Judge Paley agreed that as Verizon customers, the plaintiffs had standing — meaning they were directly affected by the government’s action — which was an issue that plagued their previous lawsuit. The published FISC order, and the government’s admission, proved that the plaintiffs’ numbers were included in the government’s surveillance.
Even though they had standing, however, it didn’t mean that their claims had any merit.
The ACLU alleged that Section 215 of the Patriot Act, which allows the telephony metadata collection, is in violation of another law, the Stored Communications Act (SCA). This law prohibits telecommunications companies from revealing subscriber data to the government without a warrant or other legal authorization (i.e., grand jury subpoena), and certification from the FBI Director. Paley states that there is nothing in Section 215 that violates the Stored Communications Act and, in fact, the legal requirements under the section work in concert with the SCA.
Interestingly, the Stored Communications Act and Section 215 were passed on the same day.
While previous rulings have indicated that customers have no legitimate expectation of privacy regarding the numbers they dial, the ACLU argued that the government’s data mining of these numbers can lead to seizure of personal information that is private, in violation of subscriber’s Fourth Amendment rights. Judge Paley found this claim unsubstantiated. He cited procedures in place to limit when, how and by whom the data is accessed. Furthermore there is no identifying information about the parties involved in the calls at the time of collection.
There was no evidence the data was used for anything other than its intended purpose of investigation of potential terrorist attacks. Furthermore, his ruling states, people willingly give up personal information daily to corporations for profit without a second thought information that goes far beyond anything collected in the bulk telephone metdata.
To assume that a lawful collection of the data with specific safeguards in place would lead to a massive violation of Fourth Amendment rights is “irrelevant conjecture,” Paley rules.
He agreed with government’s assertion that there are no violations of the First Amendment. Plaintiffs alleged harm to their organizations’ work because contacts would stop talking to them out of fear of being caught up in a government investigation. Paley ruled this as a speculative and unsubstantiated argument.
As for the injunction against the government from collecting the plaintiffs’ phone records. Paley points out the records don’t belong to the plaintiffs. Verizon is the one who is collecting the data and maintaining the records which they own. The government is not collecting anything that belongs to the plaintiffs.
Which brings us to an important point from Judge Paley: Even if there were merits to the plaintiffs’ claims, they still don’t have the right to challenge the data collection.
The targets of investigation never know they are the subject of the inquiry, an act of secrecy supported by precedent and necessity. Even if they did find out, Congress specifically tailored the law so that that only the recipient of any request to provide records has a right to challenge the request. The request goes to the company, not the target. With this in mind, Paley points out that the ACLU only discovered the records were being requested after the classified information was obtained illegally by Snowden. If they don’t have a right to challenge when the information is done so in accordance with the law, they certainly don’t have the right when they find out through spurious means.
Kind of like evidence seized without a search warrant.
There is nothing in the act that prevents bringing claims of constitutional rights violations, but, as stated before, Judge Paley ruled that the plaintiffs’ have not substantiated those claims (a requirement for the case to go forward).
Nevertheless, Paley acknowledges the need to revisit the law. He writes: “While robust discussions are underway across the nation, in Congress, and at the White House, the question for this Court is whether the Government’s bulk telephony metadata program is lawful. This Court finds that it is. But the question for whether the program should be conducted is for the other two coordinate branches of Government to decide.”
He continues, “This case shows how FISC decisions may affect every American and, perhaps, their interests should have a voice.”
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