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Ninth Circuit Tosses Challenge to NSA Spying

(CN) - The Ninth Circuit on Tuesday ruled against a nurse who challenged the National Security Agency's collection of her cellphone metadata, a program that ended last November.

Anna Smith, a nurse and mother of two, sued President Barack Obama and other high-ranking government officials in June 2013, 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. She challenged the collection of her metadata authorized by Section 215 of the 2001 USA Patriot Act.

"The government acknowledges that it is relying on Section 215 to collect 'metadata' about every phone call made or received by residents in the U.S.," her lawsuit states. "The practice is akin to 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."

U.S. District Judge Lynn Winmill in Coeur d'Alene, Idaho, dismissed Smith's lawsuit in June 2014, and she appealed to the Ninth Circuit. The Electronic Freedom Foundation and the American Civil Liberties Union joined her case on appeal.

"I have heard of other governments spying indiscriminately on their own citizens, but I naively thought it did not happen in America," Smith said in a statement through the EFF. "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."

Section 215 of the Patriot Act expired June 1, 2015, but was revived by the USA Freedom Act of 2015. The Freedom Act "prohibits any further bulk collection of tangible things pursuant to § 1861 after November 28, 2015," according to court records.

On Tuesday, the Ninth Circuit issued a six-page order remanding Smith's main claims for dismissal, finding that her allegations about the ongoing collection of her metadata are moot, apparently because collection by the NSA stopped last November.

The Freedom Act forced the government to change its methods of surveillance by keeping phone data in the custody of the private telecommunications companies instead of the NSA.

"We hold that Smith's claims related to the ongoing collection of metadata are moot and vacate and remand for their dismissal," the Fifth Circuit ruled Tuesday.

Smith also made a legal claim seeking the destruction of already collected metadata. The Fifth Circuit pointed to recent developments in the Foreign Intelligence Surveillance Court (FISC) in deciding to remand that claim for consideration by the lower court.

The FISC operates from an undisclosed room in Washington, D.C. Only government lawyers and a judge are permitted in the hushed proceedings.

On Nov. 24, 2015, the FISC approved the government's request to keep already collected metadata for two limited purposes, according to the Ninth Circuit ruling.

"First, for a period ending on February 29, 2016, the court authorized limited access to the metadata by technical personnel to verify the completeness and accuracy of call detail records produced under targeted production orders issued by the FISC after November 28, 2015," the unsigned ruling states. "Second, the court permitted the government to retain the metadata for litigation purposes after February 29, 2016, subject to conditions set out in an earlier order."

Then, on Jan. 8 of this year, "the government filed in the FISC a report expressing its view that, although the USA Freedom Act mooted claims for prospective injunctive relief (i.e., requests to halt bulk collection pursuant to § 1861), it did not moot claims for retrospective relief (i.e., inventory and destruction of already collected metadata)."

"As for Smith's remaining claims, including her request that the government purge all of her metadata collected pursuant to § 1861, we remand this case for the district court to determine whether they are moot and, if they are not, for the district court to resolve them in light of the intervening change in law," the Fifth Circuit ruled.

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