http://www.wired.com/threatlevel/2013/07/spygate-snooping-standing/

NSA Phone Snooping Cannot Be Challenged in Court, Feds Say

BY DAVID KRAVETS
07.19.13
1:25 PM

National Security Agency headquarters, Fort Meade, Maryland. Photo: Wikipedia

The Obama administration for the first time responded to a Spygate lawsuit, telling a federal judge the wholesale vacuuming up of all phone-call metadata in the United States is in the “public interest,” does not breach the constitutional rights of Americans and cannot be challenged in a court of law.

Thursday’s response marks the first time the administration has officially answered one of at least four lawsuits challenging the constitutionality of a secret U.S. snooping program the Guardian newspaper disclosed last month. The administration’s filing sets the stage for what is to be a lengthy legal odyssey — one likely to outlive the Obama presidency — that will define the privacy rights of Americans for years to come.

The New York federal district court lawsuit, brought by the American Civil Liberties Union, demands a federal judge immediately halt the spy program the civil rights group labeled as “one of the largest surveillance efforts ever launched by a democratic government.”

The Guardian last month posted a leaked copy of a top secret Foreign Intelligence Surveillance Court opinion requiring Verizon Business to provide the National Security Agency the phone numbers of both parties involved in all calls, the International Mobile Subscriber Identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls.

The suit, brought on behalf of the ACLU’s employees, alleges breaches of the First Amendment and the Fourth Amendment and names Director of National Intelligence James Clapper, NSA Director Keith Alexander and FBI Director Robert Mueller, among others.

“… the alleged metadata program is fully consistent with the Fourth Amendment. Most fundamentally, the program does not involve “searches” of plaintiffs’ persons or effects, because the collection of telephony metadata from the business records of a third-party telephone service provider, without collecting the contents of plaintiffs’ communications, implicates no ‘legitimate expectation of privacy’that is protected by the Constitution,” (.pdf) David S. Jones, an assistant United States attorney, wrote U.S. District Judge William H. Pauley in a Thursday filing.

Because the Fourth Amendment is not breached, it follows that the First Amendment is not violated either, Jones wrote.

The government said that, despite it scooping up telephony metadata from “certain telecommunication service providers,” it only queried the database using “300 unique identifiers” searching for terrorist activity last year under a standard of “reasonable, articulable suspicion.” Because the ACLU cannot prove that any of its employees were surveilled under the program, they have no right to sue under a legal concept known as standing.

“Indeed, the chances that their metadata will be used or reviewed in a query are so speculative that they lack Article III standing to seek the injunctive relief requested in their July 2 letter,” the government wrote.

The law that has been authorizing the surveillance is the Patriot Act — adopted six weeks after the 2001 terror attacks — and greatly expanded the government’s power to intrude into the private lives of Americans.

The suit challenges one of the most controversial provisions of the Patriot Act — Section 215 — that allows the secret Foreign Intelligence Surveillance Court to authorize broad warrants for most any type of records, including those held by banks, doctors and phone companies. Lawmakers have repeatedly voted to prevent the act from expiring. The government only needs to show that the information is “relevant” to an authorized investigation. No connection to a terrorist or spy is required.

The government’s filing urged Judge Pauley to allow the spying to continue. “The requested injunction is irreconcilable with the public interest, and should be denied.”

The suit says the spying as outlined by the Guardian and confirmed by the government breaches the constitutional rights of ACLU employees. Among other things, it chills their First Amendment speech rights and breaches the Fourth Amendment because the secret court is authorizing the surveillance against Americans without particularized suspicion that they have engaged in any criminal, terrorist activity.

The government has publicly maintained that Americans have no constitutional privacy rights connected to their business records with the phone company.

The Obama administration’s filing comes days after a broad coalition of groups supporting everything from religion, drugs, and digital rights to guns and the environment sued the NSA in a San Francisco federal court on virtually the same allegations.

Other pending Spygate cases include one from the Electronic Privacy Information Center, which haspetitioned the Supreme Court to stop the surveillance program. Larry Klayman, the former chairman of Judicial Watch, has lodged a suit challenging the surveillance in a District of Columbia federal court.

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