Senators and Other Experts to Appeals Court: NSA’s Phone Records Program Is a Massive Invasion of Privacy

ANDREW CROCKER

Smith v. Obama, a challenge to the NSA’s warrantless collection of phone records, currently before the Ninth Circuit Court of Appeals, has received some high-profile support. In six amicus briefs filed yesterday, a range of groups add depth to our argument that the NSA’s activities are an extraordinary invasion of the privacy of innocent Americans.

Powerfully, Senators Ron Wyden, Mark Udall, and Martin Heinrich–members of the committee charged with overseeing the NSA–write that they “have seen no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through means that caused far less harm to the privacy interests of millions of Americans.” This echoes statements made by numerous officials, including President Obama himself, and it is crucial to countering the arguments in this case about the national security importance of the NSA’s program.

Other briefs expand on the problems with the government’s legal arguments in Smith and discuss how bulk surveillance causes specific harms to privacy and other constitutional values. In a brief filed by the Electronic Privacy Information Center (EPIC), a group of leading legal and technical experts discuss the history of information generated by telephone calls and the rise of modern call records, the “metadata” collected by the NSA. The brief thoroughly debunks the government’s claims that forty-year-old legal rules allowing limited collection of records can justify the highly revealing program at issue here. Briefs by the Reporters Committee for the Freedom of the Press, the National Association of Criminal Defense Lawyers and the PEN American Center respectively explore the specific harms to reporter-source relationships, attorney-client communications and the Sixth Amendment right to counsel, and the profound chilling effect on freedom of expression. Finally, a brief by the Center for National Security Studies explains that the statute used by the government, Section 215 of the USA PATRIOT Act, also cannot justify this program.

The court will consider these arguments as the briefing in Smith continues. A hearing is expected in November 2014.