(CN) – The National Security Agency asked a federal judge to defer ruling on a 7-year-old case challenging an NSA wiretapping program, citing media coverage of the government’s surveillance activities.
A class of phone service customers led by Carolyn Jewel challenged the NSA’s Terrorist Surveillance Program, calling it an abuse of executive privilege that spies on law-abiding customers.
They claimed the NSA’s implementation of the Terrorist Surveillance Program, signed into law after the Sept. 11, 2011 terrorist attacks, violates the Constitution and the Foreign Intelligence Surveillance Act.
The plaintiffs in October 2012 blasted Presidents Bush’s and Obama’s “unprecedented assertions of power without regard to the constitutional and statutory limits of its authority. [The government] has correspondingly sought to exclude the judiciary from adjudicating whether these exercises of executive power have stayed within the limits set by the Constitution and by Congress.”
The government sought dismissal under the state-secrets privilege, claiming that “privilege will only be asserted where necessary to protect against significant harm to national security.”
The 9th Circuit refused to dismiss the case in 2011.
On Friday, the NSA asked the San Francisco Federal Court to defer ruling on the parties’ cross-motions for summary judgment, after the English newspaper The Guardian revealed that the NSA had forced Verizon to hand over “all call detail records or ‘telephony metadata'” of U.S. customers placing international domestic and local calls.”
“In recent days there have been several media reports concerning alleged surveillance activities, including in particular concerning an Order of the Foreign Intelligence Surveillance Court. In response to these reports, the Director of National Intelligence directed that certain information related to the ‘business records’ provision of the Foreign Intelligence Surveillance Act be declassified and immediately released to the public,” Jewell said in the new motion.
Jewell et al. apparently have asked for copies of these records.
“In light of these developments, the government defendants request that the Court defer further consideration of the pending motions and grant the government time to consider the effect on the pending motions of the government’s decision to declassify certain information, and to consult with plaintiffs concerning the matter,” the motion stated.
The order from the U.S. Foreign Intelligence Surveillance Court, signed by Judge Roger Vinson, excludes the “substantive contents of any communication,” and the “name, address, or financial information of a subscriber or customer” from release to the NSA.
But Brett Kaufman, a national security fellow for the American Civil Liberties Union, told Courthouse News last week that these provisions would not protect callers’ identity.
“It is common for location data to be part of the metadata,” Kaufman said.
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