The American Civil Liberties Union has filed suit against Director of National Intelligence James Clapper, the director of the National Security Agency, the Secretary of Defense, and the Attorney General, following confirmation that the NSA is collecting phone call data from a division of Verizon. This could be a significant threat to the programs, as civil libertarians suddenly find themselves in new territory.
Just a week ago, the NSA and the other elements of the government's surveillance infrastructure had fended off years of legal threats and popular outrage at its nebulous components. People knew, or suspected, how the agency's data collection systems might work, but no one could prove it. And then, Snowden.
The Wall Street Journal speculated that the revelations leaked to The Guardian could aid civil liberty groups. And Tuesday saw a rash of activity, including at least one (questionable) lawsuit filed against the NSA by the family of a Navy SEAL killed in 2011.
The ACLU's effort is far stronger. "The lawsuit," the organization writes, "argues that the program violates the First Amendment rights of free speech and associationas well as the right of privacy protected by the Fourth Amendment." Furthermore, the program "exceeds the authority that Congress provided through the Patriot Act," a point with which the Patriot Act's main sponsor agrees.
What makes the ACLU's lawsuit more viable than that of the parents of the Navy SEAL, though, is not just its rhetoric or that the organization is primarily staffed by attorneys. In order to file such a lawsuit, a complainant needs legal standing, meaning (loosely) that the person or organization must have been affected by the behavior in the complaint. Your friend can't sue the driver of a car that sideswiped you, for example, unless he suffered some negative affect.
While reports have generally indicated that customers of most phone companies had their call metadata similarly seized by the NSA, the leaked document deals only with Verizon's business department. Of which the ACLU is a customer, giving it standing. Last week, the ACLU might have had trouble proving that. This week, after the government partially declassified the program's existence, they won't.
In addition, the ACLU claims a sharply negative effect. The full lawsuit, which is at the bottom of this article, includes an explanation of the sensitivity of its records in particular.
Plaintiffs frequently place or receive phone calls from individuals relating to potential legal representation in suits against the federal government or state governments. Often, the mere fact that Plaintiffs have communicated with these individuals is sensitive or privileged.
If the court agrees with the ACLU's complaint, the organization recommends the following, among other responses:
3. Declare that the Mass Call Tracking violates the First and Fourth Amendments to the Constitution;
4. Permanently enjoin Defendants from continuing the Mass Call Tracking under the VBNS order or any successor thereto;
5. Order Defendants to purge from their possession all of the call records of Plaintiffs’ communications in their possession collected pursuant to the Mass Call Tracking ...
And, of course, pay the ACLU's legal fees.
Despite being cited in that Journal article as a likely outlet for a new lawsuit, the Electronic Frontier Foundation has taken another tack. The EFF joined 85 other organizations in demanding that legislators move to curtail the NSA's programs. (Several senators are already trying to do so.) It is also encouraging individuals to join that call by signing up at StopWatching.us.
We cannot mention the letter at the heart of the EFF's demand without noting that it comprises perhaps the most diverse collection of groups in the modern history of American politics. Among the groups and businesses that are signatories to it are: 4Chan, Freedomworks, BoingBoing, CREDO Mobile, Greenpeace USA, Mozilla, reddit, Sunlight Foundation, Taxpayers Protection Alliance, and California's The Utility Reform Network. You can see the thread that ties these organizations together, but it's a thin one. Not included in the list, the EFF's most prominent recent supporter, a guy named Edward Snowden.
As we noted last week, there exist methods for halting the NSA's surveillance systems in each branch of the government. To date, the ACLU's action presents perhaps the strongest effort to do so. Which of course doesn't necessarily mean it will work.
Update, Wednesday: On a busy day when Snowden (and teenage photos of him) resurfaced along with other whistleblowers (and Glenn Greenwald resurfaced to talk to The Atlantic Wire about the next wave of leaks), and literally as a key NSA general was finishing up his testimony before a testy Senate committee amidst an agency PR campaign based on little more than metadata, the EFF scored a remarkable — and remarkably timely — legal victory.
Here's the full ACLU suit:
Photo: A sad-looking Director of National Intelligence James Clapper. (AP)