Oral Argument Friday in ACLU Challenge to NSA Phone Spying Program

November 18, 2013 12:00 am

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NEW YORK – A federal court in Manhattan will hear argument Friday in the American Civil Liberties Union’s challenge to the constitutionality of the NSA’s mass call-tracking program. The lawsuit, which asks the court to end the program, argues that the NSA is violating the freedom of association protected by the First Amendment as well as the right to privacy protected by the Fourth Amendment. The suit also charges that the dragnet program exceeds the authority that Congress provided to the government through the Patriot Act.

"This kind of dragnet surveillance is precisely what the Fourth Amendment was meant to prohibit," said ACLU Deputy Legal Director Jameel Jaffer, one of two ACLU lawyers who will argue in court Friday. "The Constitution does not permit the NSA to place hundreds of millions of innocent people under permanent surveillance because of the possibility that information about some tiny subset of them will become useful to an investigation in the future."

The ACLU and the New York Civil Liberties Union filed the lawsuit in June, five days after The Guardian revealed the program on the basis of information provided by former NSA contractor Edward Snowden, whom the ACLU regards as a whistleblower. The ACLU is a customer of Verizon Business Network Services, which, as revealed in The Guardian, received a secret order from the Foreign Intelligence Surveillance Court compelling the company to turn over "on an ongoing daily basis" phone call details such as whom calls are placed to and from, and when those calls are made. The lawsuit argues that the government’s blanket seizure of the ACLU’s phone records compromises the organization’s ability to carry out its work and to engage in legitimate communications with clients, journalists, advocacy partners, whistleblowers, and others.

The ACLU's 2008 lawsuit challenging the constitutionality of the FISA Amendments Act, which authorized the NSA’s dragnet collection of Americans’ international communications, was dismissed 5–4 by the Supreme Court in February on the grounds that the plaintiffs could not prove that they had been monitored. (The court’s opinion relied on claims by the government that were recently revealed to be false.) In the current case, the ACLU argues that it has standing to sue because the FISA court order showed that its phone records were collected by the government.

In Congress, the ACLU supports the USA Freedom Act, which would end the bulk collection of Americans' communications records under the Patriot Act, and also amend the 2008 FISA Amendments Act to require court orders before the government could use American information collected during foreign intelligence operations.

Oral argument in ACLU v. Clapper on the ACLU’s motion for a preliminary injunction while the case is litigated and the government’s motion to dismiss.

ACLU Deputy Legal Director Jameel Jaffer, ACLU Staff Attorney Alex Abdo, and attorneys from the Justice Department will appear before Judge William H. Pauley III.

Friday, Nov. 22, 10:30 a.m.

U.S. District Court for the Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
Courtroom 20B
500 Pearl Street
New York, N.Y.

More information and all case documents are at:

Resources on NSA reform legislation and other legal actions are at:

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