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Spokane, Washington  Est. May 19, 1883

9th Circuit judges skeptical in Idaho case challenging NSA cell phone surveillance

A three-judge panel of the 9thh Circuit Court of Appeals was highly skeptical Monday of arguments on behalf of a Coeur d’Alene woman that NSA cell phone surveillance violates her constitutional right to privacy. Coeur d’Alene nurse Anna J. Smith contends that her Verizon cell phone is her primary means of communication with family, friends, her employer, her children’s teacher, her doctor, her lawyer and others, and that her communications are none of the government’s business – and have nothing to do with terrorism. U.S. District Judge Lynn Winmill found that Smith had standing to sue, but couldn’t prevail under current court precedents; he ruled against her in June. The 9th Circuit judges had sharp questions about her standing, along with the other arguments in the case. They questioned whether there was any proof the government had looked specifically at her phone records. “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’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.” 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.” When Coeur d’Alene attorney Peter J. Smith began his arguments Monday morning in Seattle, noting that the name of the plaintiff in the case is Anna J. Smith, 9thh Circuit Judge Richard Tallman interrupted him, saying, “Who’s your wife.” “That is correct, your honor,” Smith replied. “I think they were intrigued probably by just the way we filed this case,” Malek said, “just taking a client who we knew well and would be tolerant of the whole process.” Later, when Smith was arguing that a 1979 U.S. Supreme Court case regarding specific phone surveillance of a criminal suspect for several days, Smith v. Maryland, shouldn’t bar a privacy claim in this case of sweeping, bulk data collection over a decade, Smith said he wasn’t asking the judges to overturn that case. The judges burst out laughing. They said that’s not their place. The judges on the panel also included Judges Margaret McKeown and Michael Hawkins. 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.” In court documents, Anna Smith’s attorneys 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.” “What is novel here is not primarily the nature of the data collected, but the scale of the collection,” they wrote. “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.” Attorneys for the ACLU and the Electronic Frontier Foundation also are representing Anna Smith in the case. The Coeur d’Alene woman named the president, the director of national intelligence, the NSA director, the defense secretary, the U.S. Attorney General and the director of the FBI in her lawsuit over the NSA’s cell phone data surveillance, which was revealed by whistle-blower Edward Snowden. “The bulk collection of Americans’ call records is extraordinarily intrusive,” Smith’s lawyers wrote in their appeal to the 9th Circuit.