How The Supreme Court Could Decide The Fate Of NSA Surveillance

CREDIT: AP/PATRICK SEMANSKY
CREDIT: AP/PATRICK SEMANSKY

An Idaho nurse is leading the latest charge against the Obama administration for the U.S. National Security Agency’s dragnet phone data surveillance program.

With legal help from the American Civil Liberties Union and the Electronic Frontier Foundation, neonatal intensive care nurse Anna Smith contested the government’s spy programs Monday in the U.S. Court of Appeals for the Ninth Circuit.

In Monday’s oral argument for Smith v. Obama, Smith’s attorney and husband, Peter Smith, asserted the government violated Smith’s privacy by searching and collecting data that reveals intimate details about her and her family without her permission. Smith argued that each time the NSA’s database was queried or restocked with new information violated the Fourth Amendment.

Smith built his case’s standing on the fact Verizon is America’s top telecommunications provider and the NSA’s program indiscriminately swept up swaths of customer data, which included and potentially revealed personal information about his wife’s business and life.

“When you can do the hops, and see the connections — you can see that Anna called her doctor, Anna called her mother…It can reveal a lot about a person. It can reveal relationships,” Smith told the judges.

The government’s attorney, Thomas Byron, maintained the NSA could collect phone record information — call length, numbers called and when the call was made — without a warrant thanks to almost 50 years of legal precedent. In the 1970s, the Supreme Court ruled in Smith v. Maryland that phone records could be collected without a warrant.

Judges Richard Tallman, Michael Hawkins, and Margaret McKeown drilled Smith with some skepticism on how the government’s bulk collection of phone data was constitutionally different from the routine practice of monitoring an individual’s phone activity over a set period, and whether one’s privacy extends to data given to a third party such as a phone company.

Tallman in particular seemed unconvinced that Smith was a victim of the dragnet surveillance, saying that Smith was merely speculating that Verizon Wireless’ call records were in fact included in the program and Smith’s records specifically were collected and stored.

Smith’s case is the third to reach the federal appellate courts since Edward Snowden’s 2013 NSA revelations. The Second Circuit Court of Appeals in New York and the D.C. Circuit Court of Appeals are hearing similar cases that argue Fourth Amendment violations, as people don’t know how revealing telephone metadata is. According to a metadata study, researchers were able to identify who made calls to and from organization that rely on confidentiality and anonymity, such as Alcoholics Anonymous, health clinics, divorce lawyers, pharmacies and gun stores.

These cases have yet to be finalized, but depending on their outcome, the Supreme Court could end up deciding the constitutionality of the NSA’s phone surveillance program. The Supreme Court tends to get involved in cases mainly where there’s a split decision among federal appeals courts — in this case with some courts ruling in the government’s favor and others against.

But challenging the government has proven to be an uphill legal battle. Civil liberties activists’ biggest obstacle is decades-old legal precedent. Smith v. Maryland established that law enforcement could collect the call records of an individual or small group of individuals suspected of a crime. The question is whether the sheer scale and volume of the NSA’s metadata program, which was technologically impossible in 1979, is protected under that same ruling.

Even if the legal standard wins out, the publicity of challenging the government’s actions could have a positive effect down the line; showing that taking the government to task can be done. There have been past cases where despite proof of being targeted for surveillance, courts have ruled in favor of the government. The Al-Haramain Islamic Foundation sued the Bush Administration for illegally wiretapping the charity’s leaders and lawyers based on a classified document accidentally disclosed in court documents. The court ruled in favor of the government because the information was classified.

After news of the NSA’s program broke, the legal fight went public two federal judges issued conflicting rulings on the legality of the NSA’s program. Judge Richard Leon of the D.C. district court ruled that the systematic collection and storage of Americans’ phone records breached the privacy protections afforded in the Fourth Amendment. A week later, New York’s Southern District Court decided the program was legal. Those decisions are now being considered by appeals courts.

Snowden’s revelations inspired public calls to action for comprehensive reform of U.S. intelligence programs. But in the year since, there’s been little movement toward policy changes. Obama rolled back some of the NSA’s spying power earlier this year saying intelligence agencies could still collect phone records but couldn’t store them, and accessing the database would be subject to a judge’s approval.

The House later passed a diluted version of a revised USA Freedom Act in May, causing tech companies, lobbyists, and privacy advocates to pull their support. The bill failed to muster enough support in the Senate, and its fate when Republicans take control next year is unclear.

Meanwhile, a federal judge for the FISA court reauthorized the NSA’s program Monday, keeping the NSA’s controversial metadata program intact until February 27, 2015. The extension is the fourth since Obama promised to reform the program in January.