June 13, 2013
Last week, U.K.-based newspaper The Guardian announced that the U.S. government has been obtaining millions of phone records from major telecom company Verizon.
The information collected allows the government to know the identity of every person whom a Verizon customer contacts, how long they spoke, and their respective locations at the time of the call.
I wrote a post on the topic that contains more details on the information collected, and, additionally, whether this practice is constitutional.
My conclusion was that this isn’t constitutional, but, despite the inevitable lawsuits over it, the government is likely to get away with it.
One such “inevitable” lawsuit has already been filed by the American Civil Liberties Union (ACLU). The suit is directed against James R. Clapper, the Director of National Intelligence, along with other intelligence agencies heads (such as Director of the National Security Agency Lt. Gen. Keith B. Alexander, Secretary of Defense Chuck Hagel, and Attorney General Eric Holder).
The complaint provides some interesting pieces of information that confirmed conjectures I made in my previous post.
First, the complaint states that several members of the congressional intelligence committees have stated since the initial leak that this has been going on for seven years.
In addition, according to news reports that have come out since the initial leak, the government has been obtaining records not only from Verizon, but also from AT&T and Sprint.
The complaint seeks an injunction against the government’s call tracking practices, to declare that the practices are not authorized by Section 215 of the USA PATRIOT Act, and that they violate the First and Fourth Amendments.
As I discussed in my previous post, there’s likely very little question that these activities run afoul of all three laws stated. However, the problem for the ACLU is not whether its legal claims are sound, but whether the federal court in which its complaint has been filed has jurisdiction to hear it.
I actually don’t believe that the problem with the ACLU’s standing will be from a failure to allege a particularized injury.
Although it’s likely that the simple fact that the ACLU’s members’ constitutional rights are being trampled upon by the government phone tracking, the complaint goes into much greater detail about how the ACLU members’ rights are particularly affected.
Plaintiffs frequently place or receive phone calls from individuals relating to potential legal representation in suits against the federal government or state governments. Often, the mere fact that Plaintiffs have communicated with these individuals is sensitive or privileged.
The complaint goes on to state that the “fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact Plaintiffs.”
So basically, the ACLU is alleging that they have been particularly injured by this government intrusion because this snooping allows the government to know who is contacting the ACLU (and for how long, from where, how often, etc), and the fact that these contacts occurred at all is often “sensitive or privileged.”
But if there’s no issue with the ACLU’s injuries, where’s the jurisdictional problem?
It lies with whether the district court will actually want to hear the case. There’s certainly sufficient legal authority to support a court decision to accept jurisdiction over the case; but there’s also enough legal authority to allow the district court to claim it doesn’t have jurisdiction.
This case is obviously so unique because it deals with an order issued by the Foreign Intelligence Surveillance Court (FISC). A court may easily state that, if the ACLU wishes to challenge an order by FISC, it has to do so within that court.
Such a decision would, of course, be a catch-22, since the ACLU would have no jurisdiction to appeal the FISC order in FISC itself (there’s a long, complicated explanation why, but, in short, FISC appeals are effectively designed to only entertain appeals from government actors whose requests were denied).
If the federal court does decide to exercise jurisdiction over the ACLU’s lawsuit, though, things are going to get interesting.
Considering the risks to the individual judge finding jurisdiction, however, I don’t know how likely it is that this case will actually move forward.
Nonetheless, we can always hope.