NSA phone program faces key court test

The National Security Agency (NSA) is getting its day in court.

On Tuesday, a closely watched case over the spy agency’s most controversial program heads to the D.C. Circuit Court of Appeals, considered the second most powerful federal bench in the country.

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Along with other high-profile court cases challenging the constitutionality of the NSA’s spying, civil liberties advocates are sensing that the wind is at their backs, even as Congress has failed to push legislation past the finish line.  

“We want [the court] to reach the constitutional issues because it has to be decided now, for the sake of the future,” said Larry Klayman, the conservative lawyer whose case against the Obama administration is before the Circuit court. “And all we’re really asking is that the NSA adhere to the law.”

Klayman’s case challenges the constitutionality of the NSA’s bulk collection of Americans’ phone records, a program revealed by Edward Snowden last summer.

Under the program, the agency collects virtually all “metadata” about people’s phone calls — including the numbers they dial, how long the calls last and how frequently people make the calls — but not the actual content of their conversations.

While supporters say the program can be critical to tracking potential terrorists, critics say that metadata can be extremely revealing, and note that there is no proof that the program has ever effectively stopped an attack or caught a terrorist.

“Tellingly and ironically, if the NSA’s program was working, they should have picked up what was happening in Canada,” Klayman said, referring to the recent shooting in Ottawa.

In a court filing, the government claimed that collecting the phone records, “at most, minimally intrudes on constitutional privacy rights and serves the paramount government interest of combating terrorism.”

“[C]arefully crafted safeguards” protect people’s privacy, the Justice Department added, citing oversight from the secretive Foreign Intelligence Surveillance Court.

Klayman’s case was filed just days after Snowden’s leaks about the NSA and argues that the metadata program violates the constitutional protections against free association, privacy and fair legal process.

Tuesday’s arguments in the D.C. Circuit come months after a lower court gave a decisive win for Klayman and other critics of the spy agency.

Last December, District Court Judge Richard Leon called the NSA’s bulk records collection program likely unconstitutional and “almost Orwellian,” in a massive blow to the Obama administration. 

The American Civil Liberties Union (ACLU), Electronic Frontier Foundation and the Center for National Securities Studies have all weighed in supporting Klayman’s argument.

Klayman’s case is not the only legal avenue for the NSA’s critics, and the issue could well land in the Supreme Court.

Days after Judge Leon blasted the metadata program, a second judge in a similar case stood by the government, calling the program a “counterpunch” against al Qaeda. That case, ACLU v. Clapper, is on appeal, and lawyers made arguments before a panel of the Second Circuit Court of Appeals in September. Judges at the time gave few hints about their possible leanings.

A third case, Smith v. Obama, is on its way to the Ninth Circuit Court of Appeals, and oral arguments have been set for December.

Many of the arguments over the metadata program hinge on Smith v. Maryland, a 1979 Supreme Court case that helped to establish the so-called “third party doctrine.” That notion maintains that people do not have the same Fourth Amendment privacy protections on data as they do in other situations.

In the 1979 case, the high court ruled that police could order a phone company to track the numbers a suspect dialed without getting a warrant, since the suspect was handing away some of their privacy to the phone company.

The government said in a court brief that the NSA’s records program “is squarely controlled” by the precedent established by the Smith case.

But the times have changed dramatically since 1979, critics say, and the vast amounts of data obtained by sweeping up everybody’s phone records is much different than tracking one suspect’s phone calls for a few days.  

“The facts are wildly different from the 1970s,” said Peter Swire, a law professor at the Georgia Institute of Technology who specializes in privacy and was a member of President Obama’s review group on intelligence, formed after the Snowden disclosures last year.

“There has been an explosion of data in our lives since Smith v. Maryland. When the facts change, the law gets a different answer,” he added. “And the facts here have changed decisively.”

If the issue does reach the Supreme Court, the nine justices could be skeptical of the government’s claims.

In a 2012 case about warrantless use of GPS devices on cars, Justice Sonia Sotomayor wrote that it “may be necessary to reconsider” the premise established by the Smith v. Maryland case.

Just this year, the Supreme Court handed down a unanimous landmark ruling that ordered police to obtain warrants before they search a suspect’s cellphone, which also gave NSA critics hope.

Klayman’s case against the NSA is just like the high court case on cellphone privacy, he said, except that the spy agency’s program is “even broader.”

While there may be activity in the courts, legislation to rein in the NSA is still under debate in Congress and faces multiple hurdles in the narrow lame duck window after the election.

Critics of the spy agency say they’ll take their victories wherever they get them, whether on Capitol Hill or in the nation's courtrooms. 

“Our view is that Congress should act to reform our surveillance laws without further delay,” said Patrick Toomey, a staff attorney at the ACLU.

“But whatever path Congress takes, the courts also have a crucial role to play in deciding whether these sweeping surveillance programs are lawful.”