NSA data program back in federal court

The government's bulk collection of Americans’ call records was brought before a U.S. appeals court for the third time in as many months on Monday. 

At least one member of the three-judge panel of the Ninth Circuit Court of Appeals in Seattle questioned the standing in Smith v. Obama.

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"The injury is in the collection of the data, your honor," said Peter Smith, husband and attorney to the plaintiff, Anna Smith, a neonatal nurse who brought the suit against the government last year following the disclosure that the National Security Agency (NSA) was collecting phone metadata on millions of customers. 

The appeal comes after a lower court ruled that the collection did not violate the Fourth Amendment. The Electronic Frontier Foundation and the American Civil Liberties Union are serving as co-council for the appeal.

The multiple cases surrounding the NSA program largely hinge on a decades-old precedent — Smith v. Maryland — which found that a person has no reasonable expectation of privacy with phone metadata since they already handed it over to the phone company. 

But Peter Smith argued that prior precedent does not apply because the duration and volume of information collected is so massive. 

Judge M. Margaret McKeown seemed more open to that idea when questioning the Justice Department lawyer. 

"So the question is then, [the prior case] doesn't talk about the duration and quantity but you still would have to determine whether — you'd have to go to your test to determine whether there is an objective expectation of privacy in this volume of data. Wouldn't you have to ask that question?" she asked.

Justice Department Lawyer Thomas Byron disagreed. He asserted that people must reasonably expect phone companies to retain their call information for long periods of time. He also said the scale of collection is not relevant, since the case surrounds only Smith's call records. 

"Because Fourth Amendment rights are personal, one cannot invoke the Fourth Amendment rights of others," he said. 

The case stems from the leaks by former NSA contractor Edward Snowden that revealed a government order to a Verizon subsidiary — Verizon Business — to hand over all of its call records, including numbers dialed, duration and frequency, but not the content of the conversations. 

While Smith is a Verizon Wireless customer, she is not a subscriber to Verizon Business. Judge Richard Tallman said the plaintiff would have to make a series of assumptions to assert standing. 

The identity of other carriers who received orders remains classified, according to the government, with the exception of Verizon Business.

"And that was only because it was leaked by Snowden," Judge Tallman said at one point during oral arguments.

Last month, Congress failed to advance a NSA reform bill, which would have ended the government’s bulk collection. While President Obama has supported the changes, the administration reauthorized the program on Monday for another 90 days.  

“The Administration welcomes the opportunity to work with the new Congress to implement the changes the President has called for,” the Justice Department and Office of the Director of National Intelligence said in a statement.