Appeal to 9th of NSA Spying Joined by EFF

     (CN) – The Electronic Freedom Foundation and the ACLU have joined an emergency neonatal nurse’s appeal over the National Security Agency’s domestic surveillance program.
     Anna Smith, a mother of two, sued President Barack Obama and the NSA just over a year ago upon the exposure of a program that collected metadata from every American’s phone records.
     Smith says the access of her records with Verizon – one of the companies from which the NSA culled data – violated her First and Fourth Amendment rights.
     U.S. District Judge Lynn Winmill in Coeur d’Alene, Idaho, dismissed Smith’s lawsuit last month, however, so Smith is now appealing to the 9th Circuit.
     “When I found out that the NSA was collecting records of my phone calls, I was shocked,” Smith said in a statement through the EFF.
     She is represented by her husband, Peter Smith IV, and Idaho state Rep. Luke Malek, R-Coeur d’Alene.
     “I have heard of other governments spying indiscriminately on their own citizens, but I naively thought it did not happen in America,” Smith added. “I believe who I call, when I call them, and how long we talk is not something the government should be able to get without a warrant. I sued because I believe the Constitution protects my calls from government searches.”
     Smith applauded the ACLU and the EFF for joining her cause. “What Americans can reasonably expect to remain private is an issue of monumental importance,” she said.
     The lawsuit likens the government’s use of Section 215 of the Patriot Act to spy on Americans with “having a government official monitoring every call to determine who plaintiff Anna Smith spoke to, when Anna Smith talked, for how long and from where.”
     In tossing the case, Winmill said Smith v. Maryland, a 1979 Supreme Court case about targeted surveillance, left him no choice and that the information the NSA culls is already readily available in the digital age.
     The decision nevertheless expressed concerns about Americans’ privacy rights and cited U.S. District Judge Richard Leon’s observation in last year’s Klayman v. Obama that “records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic – a vibrant and constantly updating picture of the person’s life.”
     Leon held the Klayman and the other opponents of the same surveillance were likely to succeed on their Fourth Amendment claim, and enjoined the NSA from collecting their phone records. That decision has been stayed, however, pending appeal.
     “Judge Leon’s decision should serve as a template for a Supreme Court opinion. And it might yet.” Winmill wrote. “Justice [Sonia] Sotomayor is inclined to reconsider Smith, finding it ‘ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.’ But Smith was not overruled and it continues … to bind this court.”
     The ACLU is advancing its own challenge of the NSA in Manhattan, as similar claims proceed in San Francisco.
     In tossing the Manhattan case, U.S. District Judge William Pauley called the metadata collection legal and crucial for anti-terrorism purposes.
     The dragnet spying program came to light last summer when former NSA contractor Edward Snowden leaked details about it to the media.
     In March this year, the EFF filed two briefs asking the 9th Circuit to block the government from issuing national security letters that let it spy on Americans. The briefs were sealed, however, because the government continues to contend that identifying the parties involved would be a threat to national security.
     The federal government has maintained that its spying activities are not only necessary to prevent terrorism, but are also buoyed by all three branches of the federal government.
     U.S. District Judge Susan Illston in San Francisco had found the national security letters unconstitutional in March 2013, and ordered the FBI to stop issuing them. Her decision, however, was stayed pending the appeal.
     Opening briefs in Smith’s case case are due Sept. 2.
     “The call records program needlessly invades the privacy of millions of people,” ACLU Deputy Legal Director Jameel Jaffer said in a statement. “Even the President has acknowledged that the NSA does not need to collect information about every phone call in order to track the associations of suspected terrorists. Dragnet surveillance on this scale is both unconstitutional and unnecessary.”
     Founded in 1990, the EFF works to protect civil liberties in the digital world.

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