MANHATTAN (CN) – The Department of Justice filed what seems to be its first legal defense of the National Security Agency’s controversial data-collection practices since Edward Snowden leaked details of the secret operation.
“It is limited to telephony metadata, such as originating and terminating telephone numbers and the date, time and duration of each call,” U.S. Attorney Preet Bharara said in a letter to filed in federal court in Manhattan.
The letter is the initial salvo from the government in its defense against a complaint filed by the American Civil Liberties Union last month.
The ACLU likened the NSA’s “dragnet” collection of phone records for the secret surveillance program “to snatching every American’s address book – with annotations detailing whom we spoke to, when we talked, for how long, and from where.”
“It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations,” the complaint continues.
Such comprehensive access tramples on First Amendment guarantees of free association and Fourth Amendment protections against unreasonable search and seizure, the ACLU said.
Snowden brought the existence of the NSA program to light by sending 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 the three-month period ending on July 19, 2013.”
The ACLU said the government confirmed the authenticity of that order from the Foreign Intelligence Surveillance Court (FISC). Uncle Sam also allegedly indicated that the “order is part of a program that has been in place for seven years and that collects records of all telephone communications of every customer of a major phone company, including Verizon, AT&T, and Sprint.”
Though the Patriot Act radically expanded surveillance powers of law enforcement agencies, the ACLU noted that the law still mandates a relevance showing for records targeted by an authorized investigation.
Echoing recent congressional testimony from the directors of the FBI and NSA, as well as public statements by President Barack Obama, the U.S. attorney told U.S. District Judge William Pauley that the government is not actually listening to or recording “just anyone’s phone calls.”
The secret court orders stipulated that the recorded information “cannot include cell-site location data or the names, addresses or identities of the parties to any communication,” Bharara wrote Thursday.
When “specific facts” support “a reasonable, articulable suspicion” that a phone number in question is “associated with a specific foreign terrorist organization previously identified to and approved by the court,” NSA analysts then query the database and provide “leads to the FBI or others in the Intelligence Community for counterterrorism purposes,” according to the letter.
Bharara described the program as an “intelligence gap” that was “repeatedly reauthorized by multiple judges” as lawful, adding that the program is “highly sensitive and, in many respects, still classified.”
The special court for foreign surveillance that approved the seizures of data was created as part of the Foreign Intelligence Surveillance Act, enacted 35 years ago after congressional investigation by committees chaired by Sen. Frank Church and Rep. Otis Pike.
The ACLU notes in its complaint that those investigations showed that the executive branch of the government “had engaged in widespread warrantless surveillance of United States citizens” – including journalists, activists, and members of Congress – “who engaged in no criminal activity and who posed no genuine threat to the national security.”
The complaint also points out that the ACLU itself is a customer of Verizon Business Network Services, meaning that its phone records have been gathered and tracked by the government through secret orders seizing Verizon records, along with those of other U.S.-based telecommunications companies.
“This surveillance violates the First and Fourth Amendments,” the ACLU said. “Plaintiffs bring this suit to obtain a declaration that the Mass Call Tracking is unlawful; to enjoin the government from continuing the Mass Call Tracking.”
In his letter defending the program, Bharara urged the court to dismiss the complaint because “the requested injunction is irreconcilable with the public interest.”
Though an answer to the complaint is not due until Aug. 23, Bharara asked to file a combined motion to dismiss sooner than Sept. 16.
“We make this request because the presentation of our arguments may be influenced by an ongoing, multi-agency declassification review that will determine whether and, if so, to what extent additional pertinent information about the metadata program may become available,” the letter states.
Bharara said he expects the review to be completed by Sept. 3.
Pauley agreed Tuesday to discuss the government’s anticipated motion to dismiss at a July 25 conference he scheduled about a week and a half earlier. Pauley will address the briefing schedule at the Thursday conference as well.
The ACLU meanwhile had hoped to use that conference to lay out their demands for an injunction, while Bharara’s letter to the judge laid out the future battle lines of the case.
The U.S. attorney defended the govenrment’s surveillance in broad terms, describing it as both legal and in the service of the public interest.
“These data allow the government to make connections related to terrorist activities over time and can assist counter-terrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, including persons and activities inside the United States,” he wrote.
If the data were not collected, “it may not be possible to identify telephony metadata records that cross different telecommunications networks,” Bharara added.
As part of their First and Fourth Amendment claims under the U.S. Constitution, the ACLU said the tracking covers calls made by the ACLU and its foundation, as well as “the numbers of their contacts, the time and duration of every single call they placed or received, and the location of Plaintiffs and their contacts when talking on mobile phones.”
“This information could readily be used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations, as well as those whom Plaintiffs contact in connection with their work,” the complaint said.
As other government officials have done since the mass surveillance was revealed, Bharara defended the data collection as limited and unintrusive.
“Most fundamentally, the program does not involve ‘searches’ of plaintiffs’ persons or effects, because the collection of telephony metadata from the business records of a third-party telephone service provider, without collecting the contents of plaintiffs’ communications, implicates no ‘legitimate expectation of privacy’ that is protected by the Constitution,” he wrote.
Snowden, the former CIA contractor responsible for the leak, has been holed up at a Moscow airport for weeks. Federal prosecutors have indicted him under the Espionage Act of 1917.