ACLU Files Suit Challenging Legality Of NSA Data Mining

The American Civil Liberties Union is challenging the legality of the NSA’s telephone data collection. A PDF of the challenge is available here. The New York Times reports:

In a detailed legal attack on the National Security Agency’s collection of Americans’ phone call data, the American Civil Liberties Union argued in court papers filed Monday that the sweeping data gathering violates the Constitution and should be halted.

The A.C.L.U. cited the writings of George Orwell and the comprehensive East German surveillance portrayed in the film “The Lives of Others” in warning of the dangers of large-scale government intrusion into private lives. The new motion, elaborating on the A.C.L.U.’s arguments against the data collection, came in a federal lawsuit challenging the N.S.A. program that the group filed in June.

Intelligence officials have emphasized that the N.S.A. database does not contain the contents of any Americans’ calls, but only the so-called metadata — the numbers called and the time and duration of each call. They say the database is searched only based on “reasonable, articulable suspicion” of terrorism and is valuable for tracking terror plots.

The Justice Department is expected to ask the judge in the case, William H. Pauley III of the Southern District of New York, to dismiss it. The department declined to comment on the A.C.L.U.’s filing.

In a declaration in support of the A.C.L.U., Edward W. Felten, a professor of computer science and public affairs at Princeton, said that by gathering data on the three billion calls made each day in the United States, the N.S.A. was creating a database that could reveal some of the most intimate secrets of American citizens.

“Calling patterns can reveal when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath or makes a large number of calls on Christmas Day; our work habits and our social aptitude; the number of friends we have, and even our civil and political affiliations,” Mr. Felten wrote.

He pointed out that calls to certain numbers — a government fraud hot line, say, or a sexual assault hot line — or a text message that automatically donates to Planned Parenthood can reveal intimate details. He also said sophisticated data analysis, using software that can instantly trace chains of social connections, can make metadata even more revealing than the calls’ contents.

The N.S.A.’s collection of call log data is approved in general terms by the Foreign Intelligence Surveillance Court. But the information is collected without individualized court warrants, based in part on a Supreme Court ruling from 1979, Smith v. Maryland, that said call logs recorded in a criminal case were not subject to protection under the Fourth Amendment.

The A.C.L.U argues that the Smith ruling involves “narrow surveillance directed at a specific criminal suspect over a very limited time period.” The organization said the facts in the Smith case bore little resemblance to the mass collection of data on every call made in the country over the last seven years, which it said violated the Fourth Amendment’s guarantee against unreasonable searches and seizures.

The lawsuit also charges that the data collection violates the First Amendment’s free speech clause by imposing “a far-reaching chill” on the A.C.L.U.’s interaction with clients and sources.

The Washington Post had this on what is revealed from telephone metadata, from a legal brief filed in support of the ACLU’s position:

Certain telephone numbers are used for a single purpose, such that any contact reveals basic and often sensitive information about the caller. Examples include support hotlines for victims of domestic violence and rape, including a specific hotline for rape victims in the armed services.

Similarly, numerous hotlines exist for people considering suicide, including specific services for first responders, veterans, and gay and lesbian teenagers. Hotlines exist for suffers of various forms of addiction, such as alcohol, drugs, and gambling.

Similarly, inspectors general at practically every federal agency—including the NSA—have hotlines through which misconduct, waste, and fraud can be reported, while numerous state tax agencies have dedicated hotlines for reporting tax fraud. Hotlines have also been established to report hate crimes, arson, illegal firearms and child abuse. In all these cases, the metadata alone conveys a great deal about the content of the call, even without any further information.

Further examples are given regarding information which can be obtained from metadata obtained in bulk, including this example: “If a government employee suddenly begins contacting phone numbers associated with a number of news organizations and then the ACLU and then, perhaps, a criminal defense lawyer, that person’s identity as a prospective whistleblower could be surmised.”

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