ACLU Backs Bid to End NSA Surveillance of Americans | Courthouse News Service
Friday, December 1, 2023 | Back issues
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ACLU Backs Bid to End NSA Surveillance of Americans

MANHATTAN (CN) - The federal government's call-tracking program exceeds its statutory authority, the ACLU said, supporting its motion for an injunction that would block surveillance on "hundreds of millions" of Americans.

"The statute that the government relies on cannot be used to collect call records," the American Civil Liberties Union wrote in a reply brief Friday. "Even if it could be used for this purpose, the mass call-tracking program involves collection on a scale far beyond what the statute permits."

A second filing on Friday from the government supported its motion to dismiss the case. The government says its surveillance program "plays an important role in the government's ongoing efforts to defend the nation against the threat of terrorist attack," and that it "is authorized by statute, and lawful under the Constitution."

The ACLU sued in June 2013 after the program was revealed by former National Security Agency contractor Edward Snowden.

Uncle Sam counters that the ACLU's alleged injuries "are too speculative to satisfy the requirement of injury in fact.

But the nonprofit insists that the program "far exceeds the scope of collection that the government could conduct with a grand-jury or administrative subpoena, and the government cannot conceivably demonstrate, as the statute requires it to, that there are reasonable grounds to believe that all Americans' call records, over a seven-year period (and counting), are relevant to an ongoing investigation."

Even if the program was lawful as authorized by statute, it violates the Fourth and First Amendments, according to the ACLU's filing.

While the government once contended before the Foreign Intelligence Surveillance Court that the program was the "only effective means" of achieving its ends, it has since retreated from that claim, the ACLU says.

The government "could achieve its ends without assembling a comprehensive database of plaintiffs' call records," the ACLU's reply states.

"The government has no legitimate interest in infringing unnecessarily, and indefinitely, the constitutional rights of plaintiffs and hundreds of millions of others. Plaintiffs respectfully submit that preliminary relief is warranted."

The federal government called the ACLU's argument "inapt," adding that "metadata queries provide ANSA analysts with no information about the communications in which a subscriber engages unless they fall within one to three 'hops' of a targeted terrorist identifier." (Emphasis in original.)

Insisting that the spying program has a "chilling effect," the ACLU said its contacts and sources might be deterred from contacting it for fear of being spied on.

But the federal government says such arguments are "too speculative, and too dependent on the speculative concerns of third parties."

Section 215 of the Patriot Act establishes the secret process "to promote its effective functioning as a tool for counter terrorism," the government's motion states.

Under the statutory framework, third parties like the ACLU "are not even supposed to know of their existence, nor play a role in the process of testing their compliance with the statute," it added.

The federal government says the Foreign Intelligence Surveillance Court's interpretation of that law allows the government to compel the production of tangible things if there are "reasonable grounds to believe that they are relevant to an authorized investigation.

"The fact that plaintiffs learned about the Section 215 order they seek to challenge as the result of an unauthorized and unlawful disclosure does not change the essential fact of FISA's structure," its reply states.

"Allowing third parties to contest an order's compliance with Section 215's relevance and other requirements would potentially compromise the secrecy and efficiency of the process that Congress envisioned."

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