Ap­peals court takes on NSA surveil­lance case

The Standard Journal - - SCIENCE & TECHNOLOGY - By PETE YOST

WASH­ING­TON ( AP) - Three fed­eral ap­peals court judges strug­gled last Tues­day over whether the Na­tional Se­cu­rity Agency’s phone data surveil­lance pro­gram is an in­tel­li­gence-gath­er­ing tool that makes the na­tion safer or an in­tru­sive threat that en­dan­gers pri­vacy.

The judges all ap­pointed by Repub­li­can pres­i­dents ex­pressed un­cer­tainty about where to draw the line be­tween le­gal surveil­lance and vi­o­la­tions of con­sti­tu­tional rights in the age of ter­ror­ism.

Since 2006, the FBI has ob­tained or­ders from the se­cret For­eign In­tel­li­gence Surveil­lance Court di­rect­ing phone com­pa­nies to pro­duce tele­phone “meta­data” out­go­ing phone num­bers di­aled and num­bers from in­com­ing calls to the gov- ern­ment.

The NSA con­sol­i­dates the records into a search­able data­base in the hunt for ter­ror sus­pects.

Dur­ing the hour-anda-half hear­ing, Judge David Sen­telle ques­tioned whether it is an in­va­sion of pri­vacy if the NSA sim­ply col­lects the data, stop­ping short of us­ing it.

Is it not an in­va­sion “with mere col­lec­tion?” asked Sen­telle.

It is not, replied Jus­tice Depart­ment lawyer H. Thomas By­ron.

Ar­gu­ing against the NSA pro­gram, ac­tivist at­tor­ney Larry Klay­man dis­puted By­ron, telling Judge Jan­ice Rogers Brown that “col­lec­tion is enough” to jus­tify pur­su­ing the law­suit against the gov­ern­ment.

It is Klay­man’s le­gal bur­den to show that he has been harmed by the pro­gram an is­sue that threat­ens to de­rail his law­suit and which clear- ly frus­trated him dur­ing the court pro­ceed­ing. The is­sue comes down to Klay­man hav­ing to prove that his phone company was a par­tic­i­pant in the NSA surveil­lance. Klay­man is a Ver­i­zon Wire­less cus­tomer, but the gov­ern­ment has ac­knowl­edged only that a sep­a­rate Ver­i­zon company turned over records to the gov­ern­ment.

“This is not an in­signif­i­cant mat­ter” with the “gov­ern­ment stand­ing over our shoul­der. I can’t talk on my phone with my clients,” Klay­man lamented.

Isn’t the sweep of phone num­bers in the pro­gram “vir­tu­ally univer­sal?” ap­peals judge Stephen Wil­liams asked By­ron, the Jus­tice Depart­ment lawyer. “And if that’s the case, is it safe to as­sume that Ver­i­zon Wire­less num­bers are brought in?”

“The gov­ern­ment doesn’t and never has ac­quired all or nearly all of the tele­phone call data records,” By­ron replied.

Klay­man won the first round in De­cem­ber when U. S. Dis­trict Judge Richard Leon, a Repub­li­can ap­pointee, ruled that the NSA’s surveil­lance pro­gram likely runs afoul of the Con­sti­tu­tion’s ban on un­rea­son­able searches. The gov­ern­ment is seek­ing to have Leon’s rul­ing thrown out. It could take months for the ap­peals court judges to rule.

For­mer NSA sys­tems an­a­lyst Ed­ward Snow­den re­vealed the phone data col­lec­tion ef­fort a year and a half ago, trig­ger­ing a de­bate over pri­vacy rights and surveil­lance.

In New York, the U.S. Court of Ap­peals for the 2nd Cir­cuit re­cently heard ar­gu­ments in an ap­peal of a judge’s opin­ion that found the surveil­lance pro­gram le­gal.

The three ap­peals judges in the Wash­ing­ton case have gen­er­ally come down on the gov­ern­ment’s side on na­tional se­cu­rity is­sues.

Sen­telle per­mit­ted the George W. Bush ad­min­is­tra­tion to with­hold names and other de­tails about hun­dreds of for­eign­ers de­tained in the months after the Sept. 11, 2001, ter­ror­ist at­tacks. Wil­liams up­held the mil­i­tary tri­bunals set up by the Bush ad­min­is­tra­tion to try ter­ror­ism sus­pects for war crimes. Brown ruled that four Bri­tish cit­i­zens had no right to sue Pen­tagon of­fi­cials over ac­cu­sa­tions that the de­tainees were tor­tured and their re­li­gious rights vi­o­lated while held at the U.S. de­ten­tion cen­ter at Guan­tanamo Bay, Cuba.

Sen­telle and Wil­liams were nom­i­nees of Pres­i­dent Ron­ald Rea­gan. Brown was nom­i­nated by Pres­i­dent George W. Bush.

The gov­ern­ment is us­ing a 35- year- old Supreme Court rul­ing as the le­gal un­der­pin­ning for the NSA’s phone data surveil­lance pro­gram. In Smith v. Maryland, po­lice asked a phone company to in­stall a de­vice to mon­i­tor num­bers that a rob­bery sus­pect had di­aled. The court ruled that the sus­pect had no ex­pec­ta­tion of pri­vacy for the di­aled phone num­bers.

The Smith case doesn’t fit to­day’s re­al­ity, Klay­man wrote in re­cently filed court pa­pers. The bulk col­lec­tion ef­fort cov­ers “ev­ery as­pect of our lives,” he wrote.

Klay­man is us­ing a re­cent Supreme Court opin­ion, Ri­ley v. Cal­i­for­nia, in his chal­lenge to the surveil­lance pro­gram.

In that unan­i­mous Supreme Court rul­ing in June, Chief Jus­tice John Roberts said po­lice gen­er­ally may not search the cell­phones of peo­ple they ar­rest with­out first get­ting search war­rants.

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