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Lawsuit Challenges NSA’s Bulk Phone Data Grab

A lawsuit disputes a new interpretation of the Patriot Act allowing routine, bulk collection of phone data by the NSA
July 16, 2013

A little over a month ago, leaked documents revealed that the U.S. National Security Agency collects records of every phone call made using Verizon’s service (see “A Broader Interpretation of the Patriot Act”). Today a diverse group of 19 organizations including the Electronic Frontier Foundation, Greenpeace, and the First Unitarian Church of Los Angeles filed a court challenge to the program (here’s a PDF of the documents).

The plaintiffs claim that:

“The bulk collection of telephone communications information without a valid, particularized warrant spported by probably cause violates the First, Fourth, Fifth Amendments, as well as statutory prohibitions and limitations on electronic surveillance.”

The program being challenged was revealed by a court order from the secret Foreign Intelligence Surveillance Court leaked to British newspaper the Guardian. The order used a section of the Patriot Act to require Verizon to hand over all records of calls to the NSA “on an ongoing basis.”

Section 215 of the Patriot Act had been previously interpreted as allowing demands only for specific, existing data with good reason. A statement last month from director of national intelligence James Clapper indicated that intelligence agencies now think it allowable to collect data in bulk in advance because until data is actually queried by an agent it hasn’t really been accessed. Specific records amongst those vacuumed up in this way, said Clapper, would only be “queried when there is a reasonable suspicion.”

This approach concerns many civil rights campaigners, because, as Cato Institute research fellow Julian Sanchez told me last month, allowing indiscriminate data collection provides “a lot more potential for abuse.” The order served to Verizon requires it hands over details of every call made, including the time, duration and other “identifying information”, which could include the location of a mobile handset. The order covered a period of three months, set to expire this week, but is believed to have been regularly reissued for some time.

In a statement released today, EFF legal director Cindy Cohn referred to a 1958 Supreme Court case that blocked the state of Alabama from subpoenaing membership lists from the National Association for the Advancement of Colored People.

“Telephone records, especially complete records collected over many years, are even more invasive than membership lists, since they show casual or repeated inquiries as well as full membership.”

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