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article imageJudge rules against U.S. Gov't in lawsuit over NSA surveillance

By Rabeh Soofi     Dec 18, 2013 in Politics
A federal judge in Washington, D.C. has issued the first ruling on the issue of mass-surveillance conducted on Americans’ telephone records by the U.S. National Security Agency.
The opinion comprises the first judicial ruling on the issue of the lawfulness of the NSA’s data-collection activities, and represents a significant setback for the NSA and Obama administration’s justifications for the activities.
The decision came down on December 16, 2013 by Judge Richard Leon, who presides over the first of the lawsuits brought against NSA in connection with its mass-spying of Americans. According to his opinion, the NSA’s activities were “almost Orwellian” in scope and unnecessarily intruded into the privacy of Americans. The judge, who was a judicial appointee of former President George W. Bush, commented that the United States’ founding fathers would be “aghast” at the breadth and depth of the NSA’s spying.
The ruling after the Plaintiffs requested emergency relief that that the U.S. government be barred from continuing its data-collecting activities. The Plaintiffs claimed that they were subject to the NSA’s unlawful spying of their telephone and Internet records simply by being subscribers to services with Verizon, AT&T, and Sprint. They asked the Court to prohibit the NSA from collecting their phone and Internet records during the pendency of the lawsuit, and order the NSA to destroy all of their records already collected.
After considering the evidence, the Court affirmatively ruled in favor of the claimants, ordering that NSA should be barred from continuing to collect and analyze their telephone records.
The immediate reactions to the ruling have thus far been largely positive. The American Civil Liberties Union, which is litigating a similar legal challenge in New York, commented that the Judge’s decision “concludes, absolutely correctly, that the NSA’s call-tracking program can’t be squared with the Constitution.” “We hope that Judge Leon’s thoughtful ruling will inform the larger conversation about the proper scope of government surveillance powers, especially the debate in Congress about the reforms necessary to bring the NSA’s surveillance activities back in line with the Constitution,” said Jameel Jaffer, Deputy Legal Director of the ACLU.
Some politicians have been calling on the U.S. Supreme Court to resolve the question of constitutionality. “Only the Supreme Court can resolve the question on the constitutionality of the NSA’s program,” said U.S. Senator Diane Feinstein, who is chairman of the U.S. Senate Intelligence Committee. “I welcome a Supreme Court review since it has been more than 30 years since the court’s original decision of constitutionality, and I believe it is crucial to settling the issue once and for all. In the meantime, the call records program remains in effect.”
The first lawsuit against the NSA was originally initiated by Larry Klayman, a conservative lawyer who founded Freedom Watch, a public interest organization, and Charles Strange, the father of an armed forces cryptologist who was killed in Afghanistan in 2011. In the days following the filing of their lawsuit, other individuals and entities filed a similar suit alleging similar violations of constitutional rights and the rights to privacy.
The first Klayman lawsuit was brought against President Barack H. Obama, U.S. Attorney General Eric H. holder, Jr., director of the U.S. NSA General Keith B. Alexander, a U.S. federal court Judge, Roger Vinson, as well as Verizon Communications and its Chief Executive Officer, in connection with the NSA’s surveillance of telephone records. The second lawsuit, also brought by Klayman and Strange, was brought against the same government defendants but also included Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, and Apple, this time in connection with the NSA’s surveillance of internet records. Klayman and Strange asserted that the NSA’s activities violated their U.S. constitutional rights under the First, Fourth, and Fifth Amendments, and further violated the U.S. Administrative Procedures Act by exceeding its authority to conduct surveillance for foreign intelligence purposes pursuant to the U.S. Foreign Intelligence Surveillance Act (“FISA”).
The U.S. government’s defense of the lawsuit provided key insight as to what the NSA’s surveillance activities have actually involved over the past seven years. According to the court documents filed by the NSA, starting in 2006 U.S. Government developed a “counterterrorism program” under the FISA by which it collected, compiled, retained, and analyzed telephone records, including what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted. The NSA attempted to use this information purportedly to discern connections between terrorist organizations and previously unknown terrorist operatives in the U.S. After obtaining the telephone records and telephone metadata from telecommunications companies, the NSA consolidated the records into a single database.
The NSA’s analysis of the telephone records permitted them to identify much deeper levels of relationships between individual telephone communications. For example, the NSA would access all calls a phone number, i.e., (123) 456-7890, called or received in the last five years (for example, 100 calls), as well as all numbers called or received by those 100 numbers, as well as all numbers called or received by those 10,000 numbers, as well as all calls made or received by those 1,000,000 numbers. The information included not only calls made or received by individuals to “terrorist organizations,” but to their families, doctors, pet stores, pizza shops, employers, and all recipients that ordinary citizens might call from day to day (as well as all calls made by those individuals or entities, as described above).
For seven years, the metadata program was approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court (FISC), the judicial tribunal empowered with the authority to determine the legality of such surveillance and authorize its implementation. U.S. Department of Justice successfully persuaded those courts and judges that collecting information through the telephone surveillance program was not a legitimate “search” under U.S. law requiring the protection of the Fourth Amendment, because the information was purportedly already available to telephone companies for billing purposes.
However, during the course of the Klayman lawsuit, it was revealed by the U.S. Government’s court documents that NSA admittedly failed to comply with the procedures required by FISA in lawfully acquiring the surveillance. For example, the U.S. Government admitted that in 2009, the NSA conducted improper and unapproved searches of the bulk telephone metadata. In ruling on the NSA’s prior requests for judicial authorization to conduct its data-collection, at least one other federal court judge, Reggie Walton, concluded that the NSA had engaged in “systematic noncompliance” with the appropriate procedures, and repeatedly made misrepresentations and inaccurate statements about its telephone surveillance program to judges. In October 2011, another federal court judge, John Bates, in response to additional authorizations sought by the NSA, commented that the Court was “troubled” from the revelation that there were three identified instances in less than three years in which the NSA made a “substantial misrepresentation regarding the scope of a major collection program.”
In reviewing whether the plaintiffs had a constitutional right of privacy in their telephone records, the Court ruled in the affirmative. From the Court’s perspective, the issue was whether a right of privacy is violated “when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing,” “retains all that metadata for five years,” and then searches, analyzes, and investigates that data without judicial approval. The Judge remarked that if he had to reach the merits of that question, he would rule in the Plaintiff’s favor.
The U.S. Government’s arguments asserted in the NSA’s defense were largely unpersuasive. There was apparently not a single piece of evidence proving that the NSA’s bulk telephone surveillance actually stopped an imminent terrorist attack (an “utter lack of evidence” in the Judge’s words). “I am not convinced at this point in the litigation that the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations,” the Judge’s opinion wrote (emphasis added). “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval.”
Ultimately, though the Court ruled in favor of the Klayman plaintiffs, the ruling has been stayed in order to permit an appeal by a higher court of appeals. Nonetheless, the Court’s opinion added that in the next six to nine months of appeal, the U.S. Government would have ample time to accept an inevitable defeat, and encouraged them to begin the process of removing the plaintiffs’ telephone numbers from their record-databases. The Court cautioned that if the U.S. Government attempted to request an extension of time to do so, months from now, it would not be well-received and that he would consider sanctions. In the meantime, the case will slowly make its way through a panel of three judges in the Court of Appeals, and will undoubtedly end up before the U.S. Supreme Court.
For privacy-rights groups, the ruling represents a symbolic victory. “Judge Leon’s decision today marks a milestone in the fight against unchecked government surveillance, a fight PEN has waged for years,” said Suzanne Nossel, executive director of PEN American Center. “Judge Leon’s decision today gives us hope that that courts will do their job of restoring respect for personal privacy, protection of creative freedom, and reestablishment of trust in the role of government. We urge the courts to uphold future challenges to unjustified bulk surveillance.”
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