MANHATTAN (CN) – Massive government collection of U.S. citizen telephone data is “certainly not a world that the Framers envisioned when they created the Fourth Amendment,” a lawyer for American Civil Liberties Union said Tuesday at a much-anticipated hearing before the 2nd Circuit.
The ACLU hopes to revive a lawsuit that it filed in June 2013, challenging then-fresh revelations of a top-secret order forcing Verizon to “turn over, every day, metadata about the calls made by each of its subscribers” to the government.
Judge Robert Sack, one of three members on the appellate panel, remarked early in the two-hour hearing that the lawsuit came “right after” Edward Snowden, a former contractor for the National Security Administration, blew the whistle on the program.
“There has been a fair amount of water under the bridge since then,” Sack added.
Since that time, Snowden received asylum in Russia to avoid prosecution for leaking an untold number of classified documents revealing the inner workings of the highly secretive U.S. intelligence agency. His leaks have sparked multiple federal lawsuits, proposed congressional legislation and massive public interest.
Such attention prompted the 2nd Circuit to let C-SPAN broadcast the ACLU’s appeal live, a rarity for this federal court.
“I don’t know if who is going to be watching, if anyone,” Judge Gerard Lynch remarked before describing judicial procedure for viewers who might have otherwise expected a more free-flowing debate.
Quipping that his wife would not likely watch the broadcast, Sack kicked questioning off by asking ACLU attorney Alexander Abdo whether government eyes would view his emails to his mistresses.
Abdo replied that the ACLU’s lawsuit challenges phone-metadata collection alone, but that the court could consider email privacy only in considering the “breadth of the government’s interpretation.”
The government asserts that its power to collect the phone data of millions of Americans stems, in part, from Section 215 of the Patriot Act, which allows it to get “any tangible thing” relevant to a terrorism investigation.
Under this standard, Sack noted: “If everything is ‘relevant,’ ‘relevance’ drops out. It just doesn’t exist.”
Sack, an appointee from the Clinton administration, also parsed how the term “reasonable” is used in the mass-surveillance debate.
“There are many ironies in this case,” Sack said. “It’s a little strange that after Mr. Snowden disclosed this program in the Guardian, we no longer have the reasonable expectation of privacy.”
In dismissing the ACLU’s case late last year, U.S. District Judge William Pauley found the mass-surveillance program necessary to combat the “bold jujitsu” of international terrorism.
Days before Pauley handed down his decision, U.S. District Judge Richard Leon in Washington found the program an “indiscriminate” and “almost Orwellian” invasion of privacy.
That disconnect did not escape Sack.
“There are now two district courts that have come to different conclusions within weeks of each other on the issues before us,” he said.
Affirmations from the 2nd Circuit here and from the D.C. Circuit, which is handling the appeal of Leon’s ruling, would likely lead to a Supreme Court battle, Sack noted.
Lynch said private companies could also use such metadata to commit the “parade of horribles” of which the ACLU warns. Verizon could, for example, use a phone call to a reproductive clinic for “purely commercial purposes” to share with “Abortions ‘R’ Us, or an anti-abortion group,” the Obama-appointed judge said.
Abdo countered that the private telecommunications companies have statutes regulating what they can do with their customer records.
The government contends the program has privacy safeguards because intelligence officials ostensibly cannot view the data without the approval from the Foreign Intelligence Surveillance Act court, known interchangeably as the FISA court or the FISC.
Neither the public nor the targets of government surveillance can appear at the FISC proceedings, which involve ex parte arguments between government lawyers and the judge alone in an undisclosed room of a Washington federal courthouse.
The secret court has declassified some of its rulings as a “political reaction” to the Snowden revelations, Sack commented at one point.
“The whole system would give us a warmer feeling inside if it were not all ex parte,” Sack said, referring to the FISC. “I would find this a lot more reassuring if it were subject to an adversarial process.”
Assistant U.S. Attorney Stuart Delery noted that the bill known as the USA Freedom Act proposed appointing a third party to advocate privacy interests.
President Barack Obama, who announced his support for that measure, proposed ending bulk data collection earlier this year.
The ACLU’s Abdo mentioned this fact earlier in the proceedings. “Even the president has concluded that the government’s objectives can be accomplished through less intrusive means,” he said.
This prompted to Lynch to then ask: “Why did he send his lawyers here to say that you should lose?”
Abdo replied that the Obama administration could be fighting a finding that the program is unconstitutional while conceding its defects.
Echoing this argument, Delery commented at one point: “It is certainly correct that the wisdom of this program is the subject of public debate and debate within Congress.”
Delery insisted, however, that the case should not have been brought because the program already had the approval of all three branches of government, through Obama, the Congress and the FISC.
Lynch pointed out that a few select members of Congress knew about the scope of the program.
Returning to this argument on rebuttal, Abdo accused Delery of playing “a game of gotcha with congressional intent.”
“Many members of Congress were not aware of the program,” Abdo said. “They were not given legal analysis of the program.”
Lynch grilled the government lawyer about what else could go into the “big government cloud” under that precedent. The government’s reasoning could also justify bank or credit card information, he said.
“Isn’t it at least as relevant to you if someone involved in terrorist connections used his credit card to buy a ton of fertilizer than whether he called his gym?” Lynch asked.
A former prosecutor, Lynch said that he recognized what he called the “burdens of doing it person by person,” but he added that the government was seeking an “extraordinarily sweeping” outcome.
Lynch and Sack were joined on the panel by U.S. District Judge Vernon Broderick, an Obama appointee sitting by designation from the Southern District of New York. They reserved decision on the matter.
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