Embattled NSA under fire in court

Critics of the National Security Agency’s most embattled program harshly condemned the spying in a top appeals court on Tuesday.

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Judges, however, seemed largely skeptical of their claims that the spy agency’s bulk collection of Americans’ phone records was unconstitutional.

Instead, they seemed to express a desire to reverse a lower court ruling nearly one year ago that called the NSA program “almost Orwellian."

While it is always risky to try and divine positions from their questions, judges repeatedly pointed to previous Supreme Court decisions that have declared that people’s right to privacy is decreased when data, such as phone numbers, are given to another company to complete a call or carry out another transaction.

Diverging from that standard could lead to murky territory, said Janice Rogers Brown, one of the three judges on a panel at the D.C. Circuit Court of Appeals, which heard arguments on Tuesday.

“I understand this a brave new world ... [but] if we make this the rule, then what does that do?” Brown asked. “What line would you draw?”

Tuesday’s arguments are a milestone for the contested NSA program, though the case itself might remain unresolved until it lands with the Supreme Court.

The NSA program, which was revealed by former NSA contractor Edward Snowden in 2013, allows the agency to collect metadata about the vast majority of Americans’ phone calls. Metadata includes the numbers people dial, the length of their calls and the frequency of their calls, but not the actual content of their conversations.

“This is exactly why we fought the revolution,” said Larry Klayman, the conservative legal activist who brought the case against the Obama administration over the NSA’s spying.

Had the agency’s phone records program been in effect 250 years ago, he said, the founding fathers “never would have made it to Philadelphia,” but instead would have been picked up and arrested along the way.

Justice Department lawyer Thomas Byron defended the collection as “an important government intelligence program” with “extensive oversight” that helps to track terrorists.

The program allows the NSA to collect millions of people’s records, though agents can only search those belonging to people the government has a “reasonable articulable suspicion” of being connected to terrorist activity, as well as people two connections out who have communicated with them.

The limits on what is searched are important, Byron argued, not what is collected.

“Mere collection alone is not sufficient” to be covered under constitutional privacy protections, he argued.

The mere act of collecting phone records “is not a search under the Fourth Amendment,” he added.

Senior Circuit Judge Stephen Williams seemed inclined to agree with that line of reasoning.

More than once he accused Klayman of “telescoping the process” by claiming that the government’s collection of his phone records is the same violation of his privacy as the government’s search of the records.

Much of the government’s arguments rested on a 1979 case, Smith v. Maryland, in which the Supreme Court ruled that the government was allowed to monitor the phone numbers a suspect dialed, since they were willingly giving that information up to a phone company.

The Smith case “draws that very clear line of, ‘Okay, you’ve given this up; you no longer have a reasonable interest in it,’ ” Brown said.

Critics told the judges that the 1979 case should not provide the last word on people’s privacy, especially when times and technology have changed so much over the last 35 years.

“The government is trying to cram a much larger program” into the legal confines of the Smith case, said Cindy Cohn, who argued on behalf of the Electronic Frontier Foundation and the American Civil Liberties Union. Both organizations filed friend-of-the-court briefs supporting Klayman’s case against the NSA.

“The Supreme Court doesn’t seem to think that it’s stuck in this little box of ‘If metadata, then done,’ ” she added.

Indications are that the high court might be inclined to support the NSA’s critics, should the case ever reach that level.

Earlier this year, the court handed down a unanimous landmark ruling that ordered police to obtain a warrant before searching a suspect’s cellphone. In recent years, justices have also hinted it might be time to revisit the sweeping nature of privacy doctrine that was largely established in the 1979 case.

While legislation to reform the NSA is still pending on Capitol Hill, the courts have been critics’ best hopes at reining in the spy agency.

In addition to the D.C. Circuit case, other cases against the NSA’s bulk collection are currently making their way through appeals courts in the 2nd and 9th circuits.

Before heading into arguments on Tuesday, many analysts suspected that the judges hearing the case would be inclined to side with the Obama administration, given their judicial records.

Whichever way the D.C. Circuit judges rule, they seem inclined to judge the phone records program based on its constitutionality, not whether or not it is authorized under the USA Patriot Act.

Though a lawyer from the Center for National Security Studies tried to make that argument on Tuesday, judges seemed to quickly cut it down.