The U.S. National Security Agency’s mass collection of telephone records within the country is an unprecedented violation of privacy by the government, a lawyer challenging the surveillance program argued Tuesday.
A U.S. appeals court should hold up a lower court’s preliminary injunction against the phone records program as a way to stop U.S. residents from rising up against the government, conservative activist and lawyer Larry Klayman argued.
U.S. residents may resort to mass protests if judges don’t rule against the program, Klayman said. “This is the most outrageous abuse of power in our history,” he told the U.S Court of Appeals for the District of Columbia Circuit. “The American people look to you to protect them from a tyranny of the government.”
The NSA could create detailed dossiers about a target based on the telephone records, including who the suspect called and received calls from and the call routing information, Klayman said. The result is an “excessive” violation of privacy, he said.
The appeals court’s three-judge panel asked pointed questions of Klayman and of lawyers for the Electronic Frontier Foundation and the Center for National Security Studies, two groups that argued against the NSA program. Judge Stephen Williams questioned, as did a lawyer for the U.S. Department of Justice did, whether Klayman and other plaintiffs in the case had their privacy violated.
“Where’s the data in the record suggesting your calls have been examined?” Williams asked Klayman. “What is the phenomenon that you allude to?”
DOJ lawyer Thomas Byron attacked Klayman’s case on several fronts. Klayman and other plaintiffs don’t have standing to challenge the program because they have no proof their call records have been collected or analyzed, Byron said.
While Klayman is a customer of Verizon Wireless, the only phone records collection order that’s been made public covers customers of Verizon Business Services, he said. Critics of the program say Byron’s argument is a paradox—the DOJ says people can’t challenge the program in court when they have no proof of being targeted, but the government has released little information about the scope of the program.
Byron downplayed Klayman’s concerns, saying the NSA program, exposed by former NSA contractor Edward Snowden in mid-2013, isn’t a privacy violation because a surveillance court limits how the agency can use that data.
U.S. telephone customers can’t reasonably expect that call records held by telephone carriers are private, Byron said. He called on the appeals court to overturn U.S. district court Judge Richard Leon’s December 2013 injunction against the program, which he stayed pending appeals court review.
The Fourth Amendment to the U.S. Constitution protects residents of the country against unreasonable searches and seizures by the government, but the NSA’s large-scale collection of U.S. phone records doesn’t amount to a search of those records, Byron said.
The telephone records collection program is limited in scope because the Foreign Intelligence Surveillance Court has to reauthorize it every three months, and it limits the number of hops NSA analysts can take from a suspect’s telephone number to find other suspects, Bryant argued.
In addition, the NSA doesn’t collect the content of U.S. phone calls, he noted. The NSA program collects so-called metadata about telephone calls sent and received, including time and date, as well as some phone call routing information.
“The protections are very important to understand,” Byron said. The NSA program is “limited, and therefore, quite reasonable.”
The program’s scope eclipses any other law enforcement surveillance program that U.S. courts have had to deal with, argued Cindy Cohn, legal director at the Electronic Frontier Foundation. Cohn seemed to step back from Klayman’s assertions that the NSA program allowed the agency to determine a suspect’s location and other information collected in traditional wiretaps, but she emphasized the size of the NSA program, presumed to cover nearly all U.S. telephone records.
The program has collected the phone records of “millions of people over the period of many years,” she said.
Judges questioned why they should rule against the NSA program when there’s little difference in the information it collects, compared to traditional wiretap operations. Beyond that issue, telephone customers have “willingly transmitted” their call records to the carriers, added Judge David Sentelle.
The size of the program matters, Cohn said. “You can’t decide everybody is a suspect always,” she said. “The question is whether they have to find any kind of suspicion whatsoever.”