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ACLU, a Verizon Customer, Sues Government Over Spying
New Case May Have Much Better Chance Than Last One
by Karl Bode 12:34PM Wednesday Jun 12 2013
The ACLU has filed a lawsuit against the United States government as a customer of Verizon, claiming the government's domestic spy program violates the First Amendment rights of free speech and association, as well as the right of privacy protected by the Fourth Amendment. The ACLU is requesting a Judge order the immediate shut down of the program and a purging of all pertinent program data.

Historically, such lawsuits have been squashed by the government on the grounds that litigation would expose national security secrets. You might recall that the ACLU's other lawsuit over NSA and carrier spying was dismissed by the Supreme Court back in February, the court dissenters claiming that the ACLU couldn't show specific proof of harm.

This complaint and lawsuit could face a better chance of survival, given the government has declassified much of this program, the ACLU is an actual customer of Verizon Business Network Services, and last week's leaks clearly show Verizon handing over call log data for millions of Americans who have not been accused of any crime.

"The crux of the government's justification for the program is the chilling logic that it can collect everyone's data now and ask questions later," said Alex Abdo, a staff attorney for the ACLU's National Security Project. "The Constitution does not permit the suspicionless surveillance of every person in the country."

That doesn't mean the government won't engage in the same old obfuscation they have previously, but the ACLU's chances of making progress in this fight should improve slighlty.

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Jason Levine
Premium
join:2001-07-13
USA

Show Harm

Sadly, I can see this being tossed out on the same grounds. You can't see the data that was collected because NATIONAL SECURITY so you don't know that your data was being collected. If you don't know your data was collected, you can't demonstrate harm and sue.

In other words, they make the program sue-proof by slapping a "National Security - Keep Secret" label on it.
--
-Jason Levine
navalpatel

join:2003-07-28
Richardson, TX

Re: Show Harm

You can't see the data that was collected, but the data itself was collected. All of the records from Verizon Business were sought and pursuant to the order, Verizon Business complied.

The basis for the claim is that the collection of the data is being done outside the scope of the Patriot Act and is therefore illegal. The harm is the violation of their constitutional rights.

vpoko
Premium
join:2003-07-03
Boston, MA

Re: Show Harm

Probably not constitutional rights. The US Supreme Court ruled in 1967 (Katz vs. United States) that the government obtaining phone logs, but not the contents of the actual calls, was not a search and seizure per the 4th amendment. The issue here (unless the ACLU can convince the courts to revisit that decision) is that the government didn't comply with the statute, which requires some individual suspicion of wrongdoing.
mdurkin

join:1999-08-11
San Bruno, CA

Re: Show Harm

I just read the Katz decision in response to your claim, and it doesn't even mention phone logs. It's about the FBI placing a microphone on the outside of a public phone booth to record one side of a target's phone conversations without a warrant, and the court ruled they needed to have a warrant. Says nothing at all about phone logs or meta data.

vpoko
Premium
join:2003-07-03
Boston, MA

Re: Show Harm

My apologies, the case was Smith v. Maryland (1979), which used the "reasonable expectation of privacy" test established in Katz. The holding was that since someone dialing a number was voluntary providing the number being dialed to the phone company for the purpose of connecting the call, they did not have a reasonable expectation of privacy for the number.
CXM_Splicer
Looking at the bigger picture
Premium
join:2011-08-11
NYC
kudos:2

2 edits

1 recommendation

The biggest problem with the Smith decision argument is that title III of the Electronic Communications Privacy Act of 1986 specifically strengthens the protection of this data by requiring a court order. The ECPA was amended by the Patriot Act but a court order is still required and it is only to help with foreign intelligence. The current 'legal justification' for metadata collection of citizens is based in a secret court opinion and the fact that a court order was issued by the FISA court. The ultimate question of legality and constitutionality is based in whether or not the FISA court has the authority to issue blanket orders covering all American citizens. I don't think it does (nor should it) but I would bet they assume they have the power as long as the data 'assists with foreign intelligence.'

The FISA court could have just as easily issued an order allowing the accessing of the content (listening to everyone's calls) since that is also 'legal' with a court order but I think there would have been a much larger backlash had they been caught doing that.

Edited for decision name

vpoko
Premium
join:2003-07-03
Boston, MA

1 recommendation

Re: Show Harm

You're right, but I was making a constitutional vs. statutory distinction. Even without the FISA court order, obtaining phone records would be illegal, but not unconstitutional since they don't have 4th amendment protections. I.e., if the ACLU gets a favorable ruling, Congress can just pass a new law. Not so with an actual wiretap.
Rekrul

join:2007-04-21
Milford, CT
said by navalpatel:

You can't see the data that was collected, but the data itself was collected. All of the records from Verizon Business were sought and pursuant to the order, Verizon Business complied.

Yes, but the court likely can't acknowledge the fact that data was collected because the document showing that it was is classified.

Just like a few years ago when one guy was accidentally sent proof that he was being spied on, but the government said it was a mistake and that it was still classified. So, without being able to use it as evidence that he was being spied on, the court had to dismiss the charges.

vpoko
Premium
join:2003-07-03
Boston, MA

Re: Show Harm

Courts have procedures to review classified materials in closed session. The question is whether they'll have the inclination to do so, or if they'll chicken out like they so often do on faux national security issues.
mrwiggles

join:2013-06-10
Sherman, TX
What about a financial institution who had used Verizon Business services, filing suit. Couldn't they claim that any breach of their security could be considered a national security issue and target their filing at the risk of unauthorized access to their data?

aciddrink

join:2000-08-26

Tax Payers

Taxes pay for the court system that will be used to sue. If found guilty, damages will be payed out using money collected by taxes. Round robin.

vpoko
Premium
join:2003-07-03
Boston, MA

Re: Tax Payers

Damages against the US government are severely capped by the Tort Claims Act. The endgame here is an injunction, not a payout.

aciddrink

join:2000-08-26

Re: Tax Payers

True. TBH I don't know a whole lot about our legal system. I do know that it has its bottlenecks and flaws though.

I also suspect nothing will come of this for "national security" reasons.

amarryat
Verizon FiOS

join:2005-05-02
Marshfield, MA
Reviews:
·Verizon FiOS
said by aciddrink:

Taxes pay for the court system that will be used to sue. If found guilty, damages will be payed out using money collected by taxes. Round robin.

I don't think the point of the lawsuit is to get money for the victims. I think the point of the suit is to end the practice.
slckusr
Premium
join:2003-03-17
Greenville, SC
kudos:1

I dont get it.

ATT comes out of all this unscathed, yet they've been letting agencies spy the longest. (longest is questionable but you get the point).

A non Y Mous

@sbcglobal.net

Catch terrorists, yeah right!

These numbnuts can't even figure out who calls my cell phone 10 times a day.

CrazyFingers

join:2003-10-01
Columbia, MO

Re: Catch terrorists, yeah right!

Oh, they know.
They just don't care.
Yet.
--
Burrow owl...burrow owl...
Happydude32
Premium
join:2005-07-16
kudos:1

1 recommendation

Oh man....

I turned on my laptop just now, I noticed my wifi wasn't connecting, and I brought up the list of networks I can connect to and...



Damn for once I wish I lived in a more populated area. The reactions would be priceless. Too bad I live in the middle of nowhere and no one will ever see my attempt and humor. I think I'll call the SSID on the other phones mobile hotspot 'DHS Surveillance'.
--
4/17/13 - A Beautiful Day For Freedom, Thank You United States Senate!
Message to Anti-Gun Liberals: HA HA!
Hussein Obama 0 – American Public 1
“the right of the people to keep and bear arms shall not be infringed”
Repeal Obamacare Now!
SilentMan

join:2002-07-15
New York, NY

Sue the hell out of them!

Every Verizon customer should file a lawsuit against Verizon. If there were an avalanche of lawsuits against them, the move would teach them a lesson about respecting customer's rights to privacy. But, man! The dumbing down of people in this country is so bad that a dictatorship could be imposed and nobody, except maybe a few hotheads, would do anything about it and continue living in their own bubble. Sheesh!

DaDawgs
Premium
join:2010-08-02
Deltaville, VA

Traffic Analysis - The study of message externals...

POINT) When a federal agency decides to collect meta-data about every US and foreign subscriber on the Verizon network, and Verizon goes along, you may rest well assured that Verizon is also getting something in the bargain.

POINT) I don't have to have content to know what the communication was about. For example, you call the local hardware store, twenty minutes later you purchase a drop cloth used by painters. You are probably painting something. You receive a call from your doctor. You then call your insurance provider and an obstetrician. Let me guess, your wife is pregnant. Oh wait, you get a call from an HIV clinic, you call your insurance provider and your doctor... It is more about who you talk to than about what you say. This kind of access to privacy information is not making us more free or more secure. This is killing flies with sledge hammers.

It is time that we decided that we refuse to allow terrorists and their ilk to make us into the kind of country they live in. We are free because we choose to be free. If you choose to be a sheep, you deserve the consequences.
--
Once we IPv6 enable every device on the Internet we will have toasters, baby monitors, and security cameras joining the bot nets which today are populated only by idiots that can not refrain from clicking, "Yes I would like to see those titties..."
BosstonesOwn

join:2002-12-15
Wakefield, MA
Reviews:
·Verizon FiOS

Re: Traffic Analysis - The study of message externals...

Funny part is that look at the processing power of an IBM Netezza Apppliance for analytics and think of what 500 of these suckers could do ! Yet alone a whole datacenter of them !
--
"It's always funny until someone gets hurt......and then it's absolutely friggin' hysterical!"
demontop

join:2001-08-21
Chicago, IL

a little puzzled *this* is the route ACLU opted for...

I would think ACLU would jump at the more obvious and more damaging issue of a program such as PRISM divulging privileged information - such as conversations protected as Attorney-Client, or between "persons of interest" and their spouse or physician, etc.
The high court also seems particularly concerned with economic interests the past few sessions, so I'm surprised the issue of "trade secrets" hasn't come up. Whether the rank and file public, lawmakers or the courts trust the NSA and their contractors with this type of info is one question, but whether the mode of transmission and storage of this info is trusted and secure is another matter entirely. A whistleblower with some legal savvy could leak privileged communications pertaining to an already-decided court battle, for instance, as a proof-of-concept for the harm a system like this could potentially unleash.