ACLU joins fight against NSA phone surveillance

By Jon Campisi | Jun 14, 2013

NEW YORK (Legal Newsline) -- The American Civil Liberties Union this week joined the legal fight challenging the constitutionality of the National Security Agency's recently revealed domestic spying program involving what the group calls the "unprecedented mass surveillance of phone calls."

On Tuesday, the ACLU filed suit at the U.S. District Court for the Southern District of New York against various government officials over a once-secret program - recently made public by a whistleblower - in which the government collected the phone records of millions of Verizon customers in an apparent bid to weed out terroristic threats.

The NSA program has since become the subject of much controversy among both members of the public and elected officials, and it has particularly raised the ire of civil libertarians who contend privacy has already been eroded too much as it is.

The ACLU complaint challenges what it calls the federal government's "dragnet acquisition" of telephone records under Section 215 of the Patriot Act.

Government officials have acknowledged using this provision of the statute to collect "metadata" about "every phone call made or received by residents of the United States," the suit states.

"This 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," the complaint reads. "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."

The ACLU lawsuit follows a similar legal challenge filed at the federal court in Washington, D.C. recently by activist lawyer Larry Klayman, of the advocacy group Freedom Watch.

Klayman's class action suit, in which he names himself as a plaintiff, as well as a Philadelphia couple who lost their son to the war in Afghanistan and other class members, alleges similar constitutional violations.

The Philadelphia couple, identified as Charles and Mary Ann Strange, contend their phone records were targeted by the government because of their protest activities concerning American policies overseas.

Specifically, they claim they were targeted in the NSA phone records collection program because of their vocal criticism of President Obama, his administration and the U.S. Military regarding the circumstances surrounding the death of their son, Michael, a Navy SEAL who died after the helicopter in which he was riding was shot down by terrorists in Afghanistan two summers ago.

In the latest suit, the ACLU claims that it also was targeted in the NSA's phone records collection program, which has allowed the government to learn "sensitive and privileged information about their work and clients," and is "likely to have a chilling effect on whistleblowers and others who would otherwise contact Plaintiffs for legal assistance."

The surveillance that has been taking place is not actually authorized under Section 215 of the Patriot Act, the ACLU claims in its legal filing, and is a blatant violation of both the First and Fourth Amendments.

The plaintiffs in the case are the American Civil Liberties Union, the American Civil Liberties Union Foundation, the New York Civil Liberties Union, and the New York Civil Liberties Union Foundation.

Listed as defendants are National Intelligence Director James R. Clapper, NSA Director Keith B. Alexander, Defense Secretary Charles Hagel, U.S. Attorney General Eric Holder, and FBI Director Robert Mueller.

Unlike the lawsuit filed by Klayman, the ACLU suit does not name President Obama and U.S. Foreign Intelligence Surveillance Court Judge Roger Vinson as defendants.

The ACLU suit says that Section 215 of the Patriot Act, which is often referred to as the Foreign Intelligence Surveillance Act's "business records" provision, was originally designed to permit the FBI to apply to the Foreign Intelligence Surveillance Court for an order to obtain certain records pertaining to a "foreign power or an agent of a foreign power," although in its current form, the provision requires only that records or things sought to be "relevant" to an authorized investigation "to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities."

For the past several years, however, members of Congress have been warning the public that the Executive Branch was exceeding the limits of the Patriot Act, the ACLU notes.

It wasn't until last week, however, that the public learned through media reports that the NSA had been using Section 215 of the Patriot Act as justification for acquiring metadata for "every phone call made or received by customers of [Verizon Business Network Services] 'on an ongoing daily basis,'" the suit states.

The ACLU and the other plaintiffs, which collectively have more than 500,000 members, says that its employees routinely communicate by phone with each other in addition to journalists, current and potential clients, legislators and their staffers, and members of the public.

The communications are sensitive and often privileged, the suit states, especially because much of the discourse involves litigation and potential litigation.

The information collected by the government, the complaint states, could "readily be used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations, as well as those whom Plaintiffs contact in connection with their work.

"The fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact Plaintiffs."

The lawsuit seeks to have a judge declare that the NSA's mass call tracking program violates the law and the plaintiffs' constitutional rights.

The ACLU also seeks to have the defendants permanently enjoined from continuing the controversial program, in addition to purging from their possession all of the call records of the plaintiffs' communications.

Legal fees and costs are also sought.

Brett Max Kaufman, a legal fellow with the ACLU's National Security Project, wrote in an online post that the lawsuit was filed one day after the organization submitted a motion to the Foreign Intelligence Surveillance Court seeking the release of secret court opinions relating to the Patriot Act's Section 215.

The suit was filed by Jameel Jaffer, Alex Abdo, Brett Max Kaufman, Patrick Toomey and Catherine Crump, of the American Civil Liberties Union Foundation, as well as Arthur N. Eisenberg and Christopher T. Dunn, of the New York Civil Liberties Union Foundation.


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