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9th Circuit judges skeptical in Idaho NSA surveillance case

A three-judge panel of the 9th Circuit Court of Appeals was highly skeptical this morning of arguments on behalf of a Coeur d’Alene woman that NSA cell phone surveillance violates her constitutional right to privacy; you can read my full story here at spokesman.com. When Coeur d’Alene attorney Peter J. Smith began his arguments, noting that the plaintiff in the case is Anna J. Smith, 9th Circuit Judge Richard Tallman interrupted him, saying, “Who’s your wife.” “That is correct, your honor,” Smith replied. Later, when Smith was arguing that a 1979 U.S. Supreme Court case regarding specific phone surveillance of a criminal suspect for a three-day period, Smith v. Maryland, shouldn’t bar a privacy claim in this case of sweeping, bulk data collection, Smith said he wasn’t asking the judges to overturn Smith v. Maryland. The judges burst out laughing. They said that’s not their place.

In their questioning of attorneys on both sides, the judges, who also included Judges Margaret McKeown and Michael Hawkins, had sharp questions over whether the Coeur d’Alene woman has standing to bring the case. U.S. District Judge Lynn Winmill earlier ruled that she did, but held that she couldn’t prevail under current high-court precedents, including the 1979 case.

“We knew that we’d be faced with a lot of skepticism, and we knew that standing was going to be a big issue,” said Idaho Rep. Luke Malek, R-Coeur d’Alene, who is among Smith’s attorneys in the case. “I think they were intrigued probably by just the way we filed this case, just taking a client who we knew well and would be tolerant of the whole process.” He added, “I’m very excited. This case is a long way from being done, because this issue is a long way from being done. There’s a lot to be decided on privacy in the digital age.”

Thomas Byron, attorney for the U.S. Department of Justice, told the court that Winmill correctly applied the law in his earlier dismissal of the case. When Hawkins asked him, “By an individual popping open their cell phone and typing … that’s voluntarily giving up that information… (and the) expectation of privacy?” Byron responded, “That was the court’s finding in Smith v. Maryland.”

The Idaho case has attracted widespread attention, including friend-of-the-court briefs filed by U.S. Sens. Ron Wyden, Mark Udall and Martin Heinrich, the Center for National Security Studies, the Electronic Privacy Information Center and 33 technical experts and legal scholars, arguing the bulk data collection is unconstitutional. The three senators, all members of the Senate Intelligence Committee, argued that they've 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.”

Idaho case challenging NSA cell phone surveillance goes before 9th Circuit today

The 9th Circuit Court of Appeals will hear oral arguments in Seattle this morning in an Idaho case in which a nurse from Coeur d’Alene sued the president and other top national officials over the bulk collection of cell phone data by the National Security Agency.

In legal briefs submitted to the court, attorneys for Anna J. Smith wrote, “To decide the Fourth Amendment issue here, the Court must answer a question that the Supreme Court has never confronted—whether the government’s long-term collection and aggregation of call records invades a reasonable expectation of privacy. … It does.”

U.S. District Judge Lynn Winmill dismissed the case in June, writing that existing U.S. Supreme Court precedents hold that data collection doesn’t violate the U.S. Constitution’s Fourth Amendment, but that the court could – and very likely might – change that precedent. Smith appealed.

“What is novel here is not primarily the nature of the data collected, but the scale of the collection,” wrote her lawyers, who include state Rep. Luke Malek, R-Coeur d’Alene; Coeur d’Alene attorney Peter J. Smith IV, the woman’s husband; and attorneys for the ACLU and the Electronic Frontier Foundation. “Technological advances have vastly augmented the government’s surveillance power and exposed much more personal information to government inspection and intrusive analysis. If courts ignored this reality, the essential privacy long preserved by the Fourth Amendment would be eliminated.”

They argue that years-old court precedents came long before the ubiquitous use of cell phones by Americans. “When collected in bulk, call records reveal religious, familial, political, and intimate relationships; sleeping and work habits; health problems; and business plans,” the lawyers wrote. The government could do targeted surveillance of suspects in terrorism cases without bulk-collecting data from all Americans, they wrote, and still accomplish its goals. “The bulk collection of Americans’ call records is extraordinarily intrusive,” they wrote.

Smith contends that her Verizon cell phone was her primary means of communication with family, friends, her employer, her children’s teacher, her doctor, her lawyer and others, and that her communications were none of the government’s business – and had nothing to do with terrorism. Winmill found that Smith had standing to sue, but couldn’t prevail under current court precedents.

Federal judge in Idaho criticizes NSA cell phone data surveillance

A federal judge has dismissed a lawsuit filed by a Coeur d’Alene woman against President Barack Obama over NSA collection of cell phone information, while raising questions about the practice.

U.S. District Judge Lynn Winmill, in his eight-page decision issued today, found that under current U.S. Supreme Court precedents, the NSA’s collection of cell-phone data doesn’t violate the 4th Amendment’s prohibition of unreasonable searches. However, he also noted that another case in Washington, D.C. found otherwise, and it may yet make its way to the higher court; that ruling was stayed pending appeal. That decision “should serve as a template for a Supreme Court opinion,” Winmill wrote; you can read my full story here, and Winmill’s decision here.

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Betsy Z. Russell covers Idaho news from The Spokesman-Review's bureau in Boise.

Named best state-based political blog in Idaho for 2013 by The Fix

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