The ACLU is arguing on its own behalf as a Verizon customer. Experts: NSA suit could be different

The American Civil Liberties Union says this time will be different.

That doesn’t mean the group is ready to guarantee its latest lawsuit, filed last week over the constitutionality of the Obama administration’s phone surveillance program, will translate into a splashy win for civil liberties advocates.


But experts say the new case is unlikely to face the same headaches that have sunk many of the group’s previous suits. They also say it’s possible that the government’s own defense could wind up undermining its efforts to keep details of its data-gathering programs under wraps.

And even absent a win, they say, the ACLU could still drag enough previously classified information into the public domain to make the case worthwhile.

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The suit filed Tuesday argues that the phone-tracking system detailed in The Guardian violates freedom of speech and privacy rights, with the ACLU arguing on its own behalf as a Verizon customer. The group wants the National Security Agency’s surveillance program stopped and all its records to be purged.

The case is aimed at the Supreme Court, where it would pose a challenge to a 1979 ruling that found no expectation of privacy when sharing information with a third party and would build on some of the doubts the court expressed in 2012 about that decision’s relevance in the current technological era.

“If this [NSA phone surveillance] came up to the Supreme Court with this Supreme Court, they would declare it unconstitutional,” Laura Murphy, director of the ACLU’s Washington legislative office, said Thursday at an event hosted by Sen. Rand Paul (R-Ky.), who is considering signing on to the group’s suit.

( Also on POLITICO: As Snowden speaks out, Obama goes silent)

Some outside experts are less certain. Geoffrey Stone, a University of Chicago law professor who worked at the school with President Barack Obama, said the ACLU’s position is “reasonable,” but he doesn’t see the court issuing a ruling that shuts down the phone surveillance program.

And based strictly on existing Supreme Court case law, says George Washington University law professor Orin Kerr, the group’s arguments are “weak.”

But even skeptics of the ACLU’s chances concede the potential for progress. Edward Snowden’s leaks to The Guardian and The Washington Post may not lead to a wholesale dismantling of the NSA’s dragnet surveillance efforts — but the revelations could force the high court to reevaluate its interpretations of privacy law.

( See full Edward Snowden coverage)

And this time around, says Kerr, “the ACLU’s goal is probably to get discovery” — to force the government to declassify more information about the programs — “not to win.”

The ACLU isn’t the only group to have taken legal action since the revelation of details of the phone-tracking and PRISM programs: Snowden’s leaks have translated into renewed support for legal efforts across the political spectrum.

Freedom Watch, a group led by former Justice Department official Larry Klayman, has filed two class action suits: one over phone surveillance and a second over PRISM, the NSA’s system of surveillance of the Internet activities of non-U.S. citizens abroad.

Paul has launched an effort to gather the support of Americans who would potentially want to sign onto a class action suit, and is working with lawyers to determine whether to sign on to the ACLU suit, join another existing suit or launch a new one.

“Right now, we are a portal for people to come and collect and say we are unhappy with what the government is doing with our privacy,” he said Thursday, joined by other libertarian-leaning members of Congress, as well as representatives from the ACLU, tea party group FreedomWorks and the Electronic Privacy Information Center.

Filing suit within days of the emergence of new information was “to some degree reflexive” for the ACLU, said Stephen Vladeck, a law professor at American University who successfully challenged the Bush administration’s use of military tribunals at the Guantánamo Bay detention facility.

“But I think they’re some of the brightest lawyers around, and they don’t file these things willy nilly,” he added. “It’s pretty clear off the bat what the issues are.”

Of course, a reliable playbook doesn’t necessarily translate to a successful one. In the past, the group has gotten tripped up by procedural challenges that could still block a substantive ruling on whether the executive branch has authority to access and analyze all Americans’ phone data.

One big reason for the ACLU’s rocky record in the post-Sept. 11 era has been the group’s struggle to convince courts it has enough of a stake in the outcome to allow it to file suit.

The Supreme Court issued a 5-4 ruling in February that the ACLU, Amnesty International and other groups could not show that they had been harmed by a 2008 law that expanded the government’s power to monitor phone calls and emails.

Five years ago, a case challenging the NSA’s Terrorist Surveillance Program also fell on those grounds, with the Sixth Circuit Court of Appeals ruling that the ACLU and other plaintiffs had not presented evidence showing them to be targets of the program.

The plaintiffs then argued it was a “well founded belief” that their communications had been monitored but faced the Justice Department’s argument that the release of sensitive information related to the case could threaten national security. Supreme Court rejected the ACLU’s request for them to hear an appeal.

But “this case doesn’t face the same hurdles” on those grounds that torpedoed previous suits, said Patrick Toomey, a national security attorney working on the case for the ACLU.

For one, among the documents published by The Guardian is a court order that indicates that the NSA is obtaining daily call data from Verizon Business Network Services, a division of Verizon of which the ACLU says it is a customer. “There’s already a court order that’s been disclosed,” Toomey said.

And since “the ACLU is a Verizon customer … we really do think that the privacy interest in this case is the ACLU’s, not Verizon’s. It’s the ACLU’s rights that have been invaded.”

Vladeck also sees the courts getting to the merits of the case. “No court could find with a straight face that the ACLU as a Verizon customer wasn’t affected by this order,” he said.

In addition, lawyers agree with the ACLU’s view that it will be able to use the leaked order in court proceedings for the new suit.

But Paul Rosenzweig, a former deputy assistant secretary for policy in the Bush-era Department of Homeland Security, pointed to another pending case that changed shape after a recent Justice Department admission. “On drones, official people from the president on down spoke about the program and the courts still didn’t hear the case, saying the program was still a state secret,” he said.

In this case, “it’s not a bunch of officials talking about it, it’s an unsanctioned leak, one that I’m sure that the government is going to prosecute to the fullest extent it can” — which may mean the government will try to argue that the program’s workings are still a state secret.

Still, as Obama, Director of National Intelligence James Clapper and other senior administration officials weigh in, “they could wind up talking about the program enough to get to a point where it’s not seen as classified.” Clapper’s declassification of the existence of the phone monitoring program could also be seen as enough evidence to move forward.

And if the courts do move forward, they will in part be looking to the precedent of the Supreme Court’s 1979 ruling in Smith v. Maryland. In that case, Justice Harry Blackmun wrote that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

With the development of new technology, some justices have begun to voice doubts about that decision. When the court ruled in 2012 that the government could not track a suspect using a GPS device attached to his car without getting a warrant, Justice Sonia Sotomayor wrote in a concurring opinion that the approach established by Smith “is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

“I’m not confident where the courts are going, especially after Sotomayor raised the issue,” said Ron Sievert, who spent 25 years as a Justice Department attorney working on national security and criminal cases, and believes the NSA’s phone surveillance program is constitutional.

If he were arguing for the government in the ACLU case, Sievert said he would be “pounding the podium how you can’t eliminate these basic screening tools.”

But because of the sophistication and widespread use of technology, “there may be a changing view of privacy in society,” Sievert said. A few decades ago, callers knew that others might hear them on a party line. Now, he says, many of his students at Texas A&M and the University of Texas School of Law are surprised to learn that law enforcement officials can access email records.

Stone, of the University of Chicago, said that while he agrees with Sotomayor’s view, it is “clearly pretty settled doctrine that you have no reasonable opportunity for privacy when in an agreement with a third party,” such as a phone company or Internet provider.

Plus, he said, “the very fact that the government’s doing it to everybody can be an argument of constitutionality,” just as it’s acceptable for police to stop every driver at a roadblock but not to pull over drivers without cause.

“I don’t think there are five votes that go any other way” than to keep the surveillance program in place, he added. “But it would be a landmark case if they did something else.”

“If I were a betting man, I would say the ACLU will lose,” said Rosenzweig. “But I wouldn’t be surprised if they win.”