The NSA’s mass collection of telephone call detail records violates the Fourth Amendment, Anna Smith, the plaintiff in Smith v. Obama, told the Ninth Circuit yesterday, in the third challenge to the so-called section 215 program to reach a court of appeals. The opening brief concludes: “The surveillance imposed on Americans by the call-records program is anathema to this country’s constitutional tradition, and the privacy intrusions the program works are unprecedented in our history.”
Mrs. Smith filed her lawsuit in Idaho federal court on June 12, 2013, after The Guardian published irrefutable proof that the NSA is collecting telephone records of millions of innocent Americans, purportedly under the authority of section 215 of the USA PATRIOT Act. Reluctantly, the district court dismissed her claims on June 6, 2014, explaining that it felt “constrained” because of a 1979 case, Smith v. Maryland, involving the recording of the phone numbers dialed by a criminal suspect over the course of a few days.
Mrs. Smith has appealed to the Ninth Circuit, and her original counsel, Peter J. Smith and Luke Malek, were joined by EFF, the ACLU and the ACLU of Idaho.
"The opening brief presents a clear argument as to why the daily collection of a record of who Anna calls, who calls Anna, and how long she talks violates a reasonable expectation of privacy,” said Peter Smith. “Anna is grateful for the hard work that EFF and ACLU are doing to protect her constitutional rights."
The brief urges the Ninth Circuit to reject Smith v. Maryland as controlling precedent for the NSA’s mass collection of Americans’ telephone records given the tremendous differences between that thirty-five year old case and the government’s current practices. It notes that here, unlike Smith and similar cases, the government is collecting masses of data about the millions of people who use telephones rather than collecting targeted information about a single person suspected of criminal activity. The government collects this data about people like Ms. Smith, who has never been suspected of criminal or terrorist activity, over many years rather than just a few days. The government then aggregates that data to give a much more invasive picture of both individuals and groups.
The brief also notes that the Supreme Court has just confirmed in Riley v. California that analog-era precedents, such as those involving primitive pen registers in Smith, should not be mechanically applied to digital-era surveillance. This is especially true where, as in the searches of cellphones at issue in Riley, the consequences of government access are so much more invasive—allowing the government to tell when people are awake and asleep, when and how often they talk to clergy, doctors, lawyers, family, political contacts and lovers. As the brief explains, “The National Security Agency’s call-records program bears no resemblance to the targeted and narrowly circumscribed surveillance that the Supreme Court upheld in Smith. Indeed, the idea that Smith tacitly authorized the government permanently to impose a system of pervasive and intrusive surveillance on hundreds of millions of innocent Americans is beyond untenable.”
The government’s opposition is to be filed by October 2, 2014. A hearing is anticipated for November 2014. The Second Circuit heard oral argument in the ACLU’s other challenge to the telephone records collection, ACLU v. Clapper, on September 2, 2014, and the D.C. Circuit has set hearing in the third case, Klayman v. Obama, for November 4, 2014.