MANHATTAN (CN) – The ACLU on Monday asked a federal judge to stop the National Security Agency’s mass phone call-tracking program and quarantine its data until the trial of its lawsuit against the government begins Nov. 1.
The federal government defended its spying and asked the judge to dismiss the complaint.
U.S. District Judge William Pauley had ordered both parties to submit motions by Monday after the ACLU sued Uncle Sam in June.
The ACLU seeks to bar as unconstitutional the NSA spying uncovered in May by Edward Snowden, who leaked to The Guardian and The Washington Post a secret court order that forced Verizon to “turn over, every day, metadata about the calls made by each of its subscribers over a three-month period ending on July 19, 2013.”
In its new request for an injunction, the ACLU painted a much broader picture than ever before of widespread federal spying on Americans.
It claims the federal government collects information about every telephone call made by every American, the time the call started and the length of each conversation.
“The NSA keeps track of when she called the doctor, and which doctor she called; which family members she called; and which she didn’t; which pastor she called, and for how long she spoke to him,” the ACLU claims in its 48-page memorandum of law in support of its motion for a preliminary injunction.
“It keeps track of whether, how often and precisely when she called the abortion clinic, the support group for alcoholics, the psychiatrist, the ex-girlfriend, the criminal-defense attorney, the fortune teller, the suicide hotline, the child-services agency, and the shelter for victims of domestic violence.”
The NSA then uses that data to create a “rich profile of every citizen as well as a comprehensive record of citizens’ associations with one another,” the ACLU said in the memo.
The ACLU claims the spying program will chill its work with whistleblowers and others who might call it with a civil rights issue.
“Often, even the mere fact that plaintiffs have communicated with these individuals is sensitive or confidential,” the ACLU said in the memo. “Plaintiffs regularly receive calls from, among others, prospective whistleblowers seeking legal counsel and government employees who fear reprisal for their political views.”
The ACLU claims the NSA not only invades its privacy, but “threatens to dissuade potential clients and others from contacting them, and compromises their ability to serve their clients’ interests and their institutional missions.”
It claims the government’s mass call-tracking violates Section 215 of the Patriot Act’s core requirements, including its “relevance” requirement, and that the government spying violates the 4th Amendment because the surveillance is warrantless and unreasonable.
The spying also violates the 1st Amendment, the ACLU says.
“Indeed, the mass call-tracking is perhaps the largest surveillance operation ever carried out by a democratic government against its own citizens,” the ACLU claims.
It claims the government’s aggregation of telephone metadata goes far beyond the law.
“The mass call-tracking program is the product of statutory alchemy,” the ACLU says. “There is simply no way to justify it without rewriting the statute altogether.”
The billions of call records acquired under the mass call-tracking program every day are not relevant to an authorized investigation and are therefore unconstitutional, the ACLU says.
“Most of the records swept up by the program – in fact, almost all of them – are what would ordinarily be called ‘irrelevant,'” according to the ACLU memo. “Thus, the program guts the concept of relevance of its usual meaning – indeed, of any meaning.”
The whole program “renders the concept of irrelevance irrelevant,” the ACLU says.
The government’s use of Section 215 to cull telephonic metadata amounts to an “end run around other FISA provisions that specifically address – and limit – the circumstances in which the government can engage in prospective surveillance of telephony metadata,” according to the ACLU.
Section 15 “effectively reassigns to the executive a task that Congress assigned to the judiciary,” the ACLU claims.
“The program not only fails to differentiate between individuals that the government has a legitimate interest in monitoring and those that it does not, but it draws no distinction between metadata that is relevant to an investigation and metadata that is not.”
The government has said that the program intended to discover networks of particular terrorist suspects. But the ACLU claims the program “sweeps far more broadly than necessary to achieve the government’s stated interest.”
“The government need not collect everyone’s call records in order to discover information about a discrete number of individuals,” the ACLU said in the memo.
The ACLU also late Monday filed declarations of support from Steven R. Shapiro, legal director of the ACLU; Christopher Dunn, legal director of the New York Civil Liberties Union; Michael German, senior policy counsel on National Security, Immigration and Privacy at the ACLU; Edward W. Felten, a computer science and public affairs professor and director of the Center for Information Technology Policy at Princeton University; and attorney Patrick Toomey, an ACLU attorney who represents the plaintiffs in the underlying lawsuit.
Also Monday, the NSA filed a 52-page motion to dismiss on the grounds that the Southern District of New York lacks jurisdiction to hear the case.
Lead defendant James R. Clapper, director of National Intelligence, cited five reasons for the lawsuit to be dropped:
that the ACLU failed to establish standing to bring the lawsuit;
two claims that the government’s is authorized to collect the data under Section 215;
that the government’s collection of the data does not violate the 14th Amendment; and that the ACLU has not plausibly alleged that the government’s collection of the data violates the 1st Amendment.
Clapper and the NSA also claim their programs defend the country from terrorism.
“National security investigations often have remarkable breadth, spanning long periods of time and multiple geographic regions to identify terrorist groups, their members, intended targets and means of attack, many of which are often unknown to the intelligence community at the offset,” the government wrote in its memorandum of law in support of motion to dismiss the complaint.
“National security investigations thus require more far-reaching means of information-gathering to shed light on suspected terrorist organizations, their size and composition, recruitment, geographic reach, relation to foreign powers, financial resources, past acts, goals and capacity for carrying out their plans. …
“Limiting the reach of Section 215 to specific records bearing directly on known terrorist threats and operatives would inhibit the use of this authority for its intended purposes – detecting unknown terrorist threats – and frustrate the will of Congress.”
The government claims that the ACLU’s activities will not be chilled by the spying.
“Plaintiffs’ allegations that records of their calls could be used to glean sensitive information about their work and clients, and that persons with whom they collaborate could be ‘chilled’ by that prospect from contacting them, are wholly conjectural,” the NSA claims.
It added: “The government’s collection of telephony metadata is lawful under FISA and the Constitution, and the complaint states no plausible claim to the contrary. As the FISC repeatedly has found (as recently as last month), telephony metadata are relevant to authorized counter-terrorism investigations, and their collection by the Government is authorized by FISA. Plaintiffs also fail to state a Fourth Amendment claim. There has been no search or seizure of their property or effects, and, as the Supreme Court held in Smith v. Maryland (1979), telephone subscribers have no protected privacy interest in the type of information at issue here. In addition, even if the government’s conduct implicated a protected Fourth Amendment interest, the bulk collection of telephone metadata would be ‘reasonable’ and permissible in light of the strong national interest in preventing terrorist attacks, and the minimal intrusion on individual privacy. Finally, plaintiffs fail to state a First Amendment claim, because intelligence-gathering conducted in a manner consistent with the Fourth Amendment, for purposes unrelated to the suppression of protected speech or association, does not violate the First Amendment. For these reasons, elaborated below, the court should reject plaintiffs’ effort to preclude the use of this important intelligence tool.”
In sum, the NSA claims: “The bulk collection of telephony metadata is necessary to enable discovery of otherwise hidden connections between individuals suspected of engaging in terrorist activity and unknown co-conspirators with whom they maintain contact in the Untied States. The metadata records are therefore relevant to FBI investigations whose object is to thwart the plots in which these individuals are engaged before they come to bitter fruition.”
Section 215 of the Patriot Act expanded the government’s power to track tangible things upon showing reasonable grounds to believe they are relevant to an authorized investigation.
Sens. Ron Wyden and Mark Udall, both of whom sit on the Senate Select Committee on Intelligence, stated publicly in 2011 that the government had adopted a “secret interpretation” of Section 215, and predicted that Americans would be “stunned,” “angry” and “alarmed” when they learned of it.
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