NSA Tracking Challenge Dismissed in Idaho

     BOISE, Idaho (CN) – Despite his reservations about applying precedent in the “digital age,” a federal judge dismissed a challenge to the government’s broad cellphone surveillance.
     Anna Smith, a nurse in Coeur d’Alene, brought the lawsuit last year against President Barack Obama, Director of National Intelligence James Clapper, National Security Agency Director Keith Alexander, Secretary of Defense Charles Hagel, U.S. Attorney General Eric Holder and Federal Bureau of Investigation Director Robert Mueller.
     Rep. Luke Malek, R-Coeur d’Alene, and Smith’s husband, Lukins & Annis attorney Peter Smith, filed the case for Smith on June 12, 2013, just days after former NSA contract Edward Snowden leaked a secret court order that forces 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 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.,” the complaint states, referring to the Patriot Act. “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.”
     The complaint continues: “The government now possesses information about plaintiff Anna Smith, including but not limited to her associations and public movements, revealing a wealth of detail about her familial, political, professional, religious and intimate associations.”
     Smith said the practice constitutes unreasonable searches under the Fourth Amendment.
     U.S. Judge Lynn Winmill nevertheless dismissed the complaint Tuesday and refused to grant Smith an injunction based on precedent from the 1979 Supreme Court decision in Smith v. Maryland, which says “a person using the telephone ‘voluntarily conveys numerical information to the telephone company’ and ‘assumes the risk that the company will reveal to police the numbers he dialed.'”
     Winmill raised questions, however, concerning cellphone technology and the ability to track a person’s precise location and to determine specific information, such as whether a person is walking or driving a car.
     The NSA has long denied it is paying attention to those details.
     “While there is speculation that the NSA is tracking location, there is no evidence of that, and the agency denies it,” Winmill said. “Under these circumstances, the court will not assume that the NSA’s privacy intrusions include location tracking.”
     Today’s technology makes detailed information readily available, the judge conceded.
     Citing U.S. District Judge Richard Leon’s decision last year in Klayman v. Obama, Winmill observed 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.”

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