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Challenge to NSA’s Mass Surveillance Inches Way Up Court System

Alex Abdo,
Former Senior Staff Attorney,
ACLU Speech, Privacy, and Technology Project
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September 2, 2014

This morning, we’re heading back to court to challenge the NSA’s phone-records program, this time in the Second Circuit Court of Appeals in New York.

Several district courts have already ruled on the program, with one calling it “almost Orwellian.” And, of course, the secretive Foreign Intelligence Surveillance Court has approved it many times. But one consequence of the excessive secrecy surrounding the program is that it has never been reviewed by the Supreme Court or even by a federal appeals court. Until now.

Our lawsuit and the several similar lawsuits that have been filed around the country are significant for many reasons. The phone-records program – under which the NSA collects a record of the calls made by millions of Americans every single day – is perhaps the most sweeping surveillance operation ever directed against the American public by our government. It raises profound questions about the role of government in a democracy and about the future of privacy in the digital era. And it threatens our constitutional rights in ways unimaginable by the founders of our country.

As we argued in a brief to the court:

Each time a resident of the United States makes a phone call, the NSA records whom she calls, when the call was placed, and how long the conversation lasted. The NSA keeps track of when she called the doctor, and which doctor she called; which family members she called, and which she did not; which pastor she called, and for how long she spoke to him. It keeps track of whether, how often, and precisely when she called the abortion clinic, the support group for alcoholics, the psychiatrist, the ex-girlfriend, the criminal-defense lawyer, the suicide hotline, and the child-services agency.

The legal challenges are also significant for the simple fact that they have forced the government to defend its program in public. For over a decade, the government has thwarted all attempts at public judicial review of the legality of the surveillance programs it inaugurated in the aftermath of 9/11. It erected procedural barriers and invoked the state-secrets doctrine to have those challenges thrown out of court.

But today, we’re one step closer to having a definitive ruling on the legality of at least one of those programs. We are optimistic that the court will agree with us that the bulk collection of sensitive information on millions of innocent Americans is unlawful.

Stay tuned for our update after the hearing or watch it on C-SPAN here.

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