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.