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Eye On Boise

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 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.”

Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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