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Rare Glimpse Inside Court Proceeding on NSA Surveillance (ACLU v. Clapper 2d Cir. Oral Arguments Re: Section 215 Phone Metadata Program)

In ACLU, Archive, FBI, NSA, Patriot Act, Surveillance on September 3, 2014 at 3:14 AM



Broadcast on CSPAN in a rare exception to normal court procedures, a panel of federal judges heard arguments today in a lawsuit brought by the American Civil Liberties Union (ACLU) that challenges the constitutionality of the National Security Agency’s (NSA) collection of American phone records.

Tuesday’s hearing at the Second U.S. Circuit Court of Appeals in New York marks the first time the NSA’s indiscriminate collection of Americans’ phone records is considered by an appeals court. Last December, the ACLU’s challenge was dismissed by a U.S. District judge, who considered the collection program necessary to protect U.S. national security.

Metadata of phone records collected by the NSA on daily basis includes the identities of callers, the duration of calls, when calls are placed and, in some cases, the physical locations of the callers themselves.

The secretive Foreign Intelligence Surveillance Court (FISC) has approved the program many times. Several district courts have already ruled on the program, with one calling it “almost Orwellian.” In their report on the program, the Privacy & Civil Liberties Oversight Board (PCLOB) called it illegal and ineffective, recommending it should end. In response to the President’s NSA Review Group report, the Obama administration released a proposal in March to “replace” the program.

The ACLU’s complaint charges that the NSA routinely violates the privacy of U.S. citizens, protected under the Fourth Amendment; that the collection program detrimentally impacts the First Amendment rights of free speech and association; that the collection program exceeds the authority of the law that enables it: Section 215 of the U.S. Patriot Act.

The phone-records program – under which the NSA collects a record of the calls made by millions of Americans every single day – is perhaps the most sweeping surveillance operation ever directed against the American public by our government. It raises profound questions about the role of government in a democracy and about the future of privacy in the digital era. And it threatens our constitutional rights in ways unimaginable by the founders of our country.

As ACLU argued in a brief to the court:

Each time a resident of the United States makes a phone call, the NSA records whom she calls, when the call was placed, and how long the conversation lasted. The NSA keeps track of when she called the doctor, and which doctor she called; which family members she called, and which she did not; which pastor she called, and for how long she spoke to him. It keeps track of whether, how often, and precisely when she called the abortion clinic, the support group for alcoholics, the psychiatrist, the ex-girlfriend, the criminal-defense lawyer, the suicide hotline, and the child-services agency.

The legal challenges are also significant for the simple fact that they have forced the government to defend its program in public. For over a decade, the government has thwarted all attempts at public judicial review of the legality of the surveillance programs it inaugurated in the aftermath of 9/11. It erected procedural barriers and invoked the state-secrets doctrine to have those challenges thrown out of court.

The existence of the NSA’s collection program was brought to light by journalist Glenn Greenwald at The Guardian newspaper in June 2013. His report, which relied on top secret documents provided by former NSA systems analyst Edward Snowden, revealed the NSA’s domestic spying activities. Specifically, it exposed a secret court order, issued by FISC, that required Verizon Business Network Services to provide the intelligence agency with access to otherwise private details about phone calls placed inside the U.S.

Well into today’s argument over ACLU v. Clapper, the ACLU’s challenge to the government’s phone dragnet, one of the judges — Robert Sack — pointed out the discussion we’re having all stems from documents the government was forced to release after the Edward Snowden leaks.

It was itself telling — not least because DOJ Civil Division AAG Stuart Delery at times proclaimed not to know the answers to the questions the judges posed, questions I know the answer to. For example, Delery claimed, at first, not to know of instances when the FISA Court ruled more harshly than the government; and when he ultimately did admit to those instances, he didn’t admit that some of them involved systematic abuses. He also dodged questions about whether the government could get financial records, which we know they do (and James Cole has testified they could).

It was all the more telling, however, given that two of the judges on the panel — Gerard Lynch and Sack — had ruled against the government in Amnesty v. Clapper, ACLU’s challenge to the Section 702 program. As you’ll recall, to get SCOTUS to overturn that ruling, DOJ lied to the Supreme Court about what kind of notice it gave to defendants under Section 702. Snowden’s leaks led to a change in DOJ’s notice policy to actually come closer – but not actually match –what DOJ had claimed before SCOTUS (they’re still not giving notice to all defendants). At one point, Lynch said something like, “We weren’t as familiar [with 702] as the Supreme Court thought we should have been.”

These judges have reason to be skeptical about DOJ’s claims about their own surveillance programs. Which is probably why Sack asked (after 1:36), “That’s what you’ve let us know. What else haven’t you let us know?”

h/t Dell Cameron/DailyDot/Alex Abdo/ACLU/Marcy Wheeler/Emptywheel

  1. […] when, and for how long. The ACLU sued the NSA over the program just days after it was revealed, and we took the case to the Second Circuit Court of Appeals after it was dismissed by a district […]


  2. […] Rare Glimpse Inside Court Proceeding on NSA Surveillance (ACLU v. Clapper 2d Cir. Oral Arguments Re:… […]


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