The last time the American Civil Liberties Union challenged the power of the National Security Agency in court, the Supreme Court wound up dismissing the case, holding that the groups represented by the ACLU did not have “standing” to challenge the NSA’s warrantless wiretapping program, because they could not prove their communications were monitored.
On Tuesday, the ACLU filed a new lawsuit, on its own behalf, in response to the leak of a Foreign Intelligence Surveillance Court order issued in April requiring a Verizon subsidiary, Verizon Business Network Services, to turn over the metadata about calls made by all its subscribers over a three-month period. The advocacy group is confident this case won’t stumble where the last one did. The reason: the ACLU itself is a Verizon Business Network Services subscriber.
“The order directly affects us, and we can prove it,” Brett Max Kaufman, a national security fellow with the ACLU’s National Security Project, told TPM on Wednesday. “Standing should not be a problem here.”
According to The Guardian, which first published the top secret court order, the order covers the numbers of both parties on calls, along with location data, call duration, unique identifiers, and the time and duration of calls.
The lawsuit, filed in federal court in New York, challenges the government’s “dragnet acquisition of Plaintiffs’ telephone records under Section 215 of the Patriot Act,” a section of law also referred to as the Foreign Intelligence Surveillance Act’s “business records” provision. In its complaint — which names Director of National Intelligence James Clapper, NSA Director Keith Alexander, Secretary of Defense Chuck Hagel, Attorney General Eric Holder, and FBI Director Robert Mueller as defendants — the ACLU alleges that the program collecting the metadata is “likely to have a chilling effect on whistleblowers and others who would otherwise contact [the ACLU] for legal assistance.”
Arguing that the program is not authorized by Section 215, and is in violation of the First and Fourth Amendments, the ACLU is seeking a declaration that what it terms “mass call tracking” is unlawful, and a requirement that the government “purge from its databases all of the call records related to Plaintiffs’ communications collected pursuant to the Mass Call Tracking.”
In the complaint, the ACLU cites a recent statement made by Rep. Jim Sensenbrenner (R-WI), who wrote and introduced the PATRIOT Act to Congress in 2001. Sensenbrenner wrote in an opinion piece published Sunday that “based on the scope of the released order, both the administration and the FISA court are relying on an unbounded interpretation of the act that Congress never intended.”
Appearing on MSNBC on Wednesday, Jameel Jaffer, the director of the ACLU’s Center for Democracy, was asked about the government’s defense of the program, and asked to address in particular the fact that Congress had been briefed on it.
“Congress can’t sanction a violation of the constitution,” Jaffer said. “Even if Congress had authorized all of this, there is still the question of whether it’s constitutional. And that’s something for a court to decide.”
