Privacy rights group wants relief from NSA snooping

c.2013 New York Times News ServiceJuly 8, 2013 

WASHINGTON -- A privacy rights group plans to file an emergency petition Monday with the Supreme Court asking it to stop the National Security Agency's domestic surveillance program from collecting the telephone records of millions of Americans.

The Electronic Privacy Information Center announced it is taking the extraordinary legal step of going directly to the Supreme Court because the sweeping collection of the phone records of U.S. citizens has created "exceptional circumstances" that only the nation's highest court can address.

The group based in Washington also said it was taking its case to the Supreme Court because it could not challenge the legality of the NSA program at the secret court that approved it, the Foreign Intelligence Surveillance Court, and because lower federal courts did not have the authority to review the secret court's orders.

In its petition, the group said the FISA court had "exceeded its statutory jurisdic

tion when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation."

The suit is the latest in a series of legal challenges to the NSA's domestic spying operations that have been filed over the past month after disclosures by a former NSA contractor, Edward Snowden. Based on a document leaked by Snowden, The Guardian revealed early last month the FISA court issued an order in April directing Verizon Business Network Services to turn over all of the telephone records for its customers to the NSA. The secret court order was also published by The Guardian.

Within days of the disclosure of the court order, the American Civil Liberties Union filed suit in federal court in New York. Separately, Larry Klayman, a conservative lawyer who runs a group called Freedom Watch, filed a class-action lawsuit in federal court in Washington on behalf of Verizon customers.

Marc Rotenberg, executive director of the Electronic Privacy Information Center, said his group's lawsuit would be the first to directly challenge the legal authority of the FISA court to approve the phone record collection under the Patriot Act.

Alan Butler, a lawyer for the group, said the judge "lacked the authority to require production of all domestic call detail records." He noted the Patriot Act provision cited by the FISA court required any business records produced to be "relevant" to an authorized national security investigation.

"It is simply implausible that all call detail records are relevant," Butler said.

The new challenges come after the failure of a legal campaign against the NSA's domestic spying operations during the administration of President George W. Bush. A series of lawsuits were brought against an NSA program of wiretapping without warrants soon after the existence of the program was revealed by The New York Times in December 2005.

Those lawsuits were against the telecommunications companies that cooperated with the NSA program, but Congress later gave the companies retroactive legal immunity when it overhauled the nation's national security wiretapping law in 2008.

Those lawsuits also suffered in federal courts because it was difficult for the plaintiffs to prove that they had actually been spied upon by the NSA since domestic spying operations are secret and the courts refused to force the government to release any documents to reveal surveillance targets.

But the new lawsuits benefit from the publication of the secret court order concerning Verizon, providing evidence Verizon customer records have been collected. The ACLU in its lawsuit argues it has legal standing to bring its case because the group is a Verizon customer.

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