MANHATTAN (CN) - Though kept in the dark as to how the government uses the information gleaned from its secret phone-tracking program, opponents insist that they have standing to sue.
The American Civil Liberties Union sued on June 11 after information about the program was revealed by former National Security Agency contractor Edward Snowden. It contends that the NSA's blanket tracking of phone calls exceeds statutory authority and violates the First and Fourth amendments to the Constitution. While the case proceeds, the ACLU wants an injunction barring the mass call-tracking program and requiring the agency to purge any records already collected.
In an earlier motion to dismiss, the government argued that the ACLU lacks standing because it lacks proof that the government's use of call records will "identify persons with whom plaintiffs speak," and that "others might refrain from communicating with plaintiffs because they fear disclosure of their association with plaintiffs."
The ACLU and its chapters on Tuesday called that argument "misguided."
"Plaintiffs' challenge is not limited to the NSA's use of plaintiffs' call records after collecting them but is also directed at the government's collection of those records in the first place," it said in an opposition brief. "The collection of plaintiffs' call records is itself an injury ... [and] constitutes a gross invasion of their privacy." (Emphasis in original.)
The government defended its interpretation of Section 215 of the Patriot Act, claiming that it allows the government to compel the production of tangible things if there are "reasonable grounds to believe that [they] are relevant to an authorized investigation."
But the ACLU says the government's use of 215 is a stretch and an abuse of power.
"The mass call-tracking program goes far beyond its authority," the ACLU wrote. "The notion that detailed information about every phone call made by a resident of the United States over seven years could be 'relevant to an authorized investigation' flouts precedent and common sense, as well as the larger statutory scheme."
Challenging the contention that Congress ratified the spying program when it reauthorized Section 215 in 2010 and 2011, the ACLU notes that some members of Congress have said they were never informed of the Foreign Intelligence Surveillance Court's secret interpretation of Section 215.
"The government implies that Congress had constructive knowledge of the FISC's interpretation because the government provided 'all members of Congress ... access' to information about the program," the ACLU wrote. "That contention is doctrinally inadequate."
Meanwhile the government also filed its opposition to the ACLU's demands for an injunction on Tuesday. Insisting that its surveillance of phone metadata aids national security, the U.S. government said that the ACLU's demand for an injunction relies on pure "conjecture."
"Targeted electronic searches of these data, based on telephone numbers or other identifiers associated with foreign terrorist organizations, can reveal communications between known or suspected terrorists and previously unknown terrorist operates, located in this country, who may be planning attacks on U.S. soil," the government wrote.
Robert Holley, assistant director of the FBI's Counterterrorism Division, said in a declaration also filed Tuesday that it is imperative" that the government be able to "rapidly identify any terrorist threat inside the United States."
The NSA's telephony metadata program achieves that end, he added.
