Smith is the plaintiff in one of six legal challenges that have been filed over the government’s far-reaching collection of telephone and Internet records. Her attorney is her husband. She doesn’t understand the legal technicalities and worries that the case could distract from her job and parenting duties.
But the Idaho native knows how she feels about the prospect of anyone tracking calls from her cellphone: She’s outraged. “It’s none of their business what I’m doing — who I call, when I call, how long I talk,” Smith, 32, said in a telephone interview. She added, “I think it’s awesome that I have the right to sue the president. I’m just a small-town girl.”
Smith’s lawsuit, filed June 12 in federal court in Idaho, names President Obama “in his official capacity as President of the United States of America,” along with other top officials. Like most of the other cases, it urges a judge to declare unconstitutional a National Security Agency program that scoops up the telephone records of millions of Americans from U.S. telecommunications companies.
The revelation of that program last month by former NSA contractor Edward Snowden — along with his disclosure of a separate program aimed at collecting the online communications of foreign targets from major Internet companies — has fueled the increasing number of legal challenges.
But Smith’s suit is
in many ways the most unusual of the recent cases — and it arguably best exemplifies ordinary Americans’ anxieties about government surveillance. Nearly three-quarters of Americans say the NSA is infringing on personal privacy, according to a new Washington Post-ABC News poll.
The other suits were brought by what may be considered heavyweight activists: the American Civil Liberties Union; two digital rights organizations; and two suits by Larry Klayman, who founded the conservative group Judicial Watch. Smith just happens to have a cellphone and a point of view.
Her husband, Peter, is a commercial litigator who has never handled a constitutional or national security case. His co-counsel, Lucas Malek, worked briefly as a prosecutor and is a Republican state representative and part-time lawyer.
“We grew up in northern Idaho, for goodness sakes,” said Peter Smith, 35. “This is probably the biggest thing we will ever do.”
The case faces major obstacles. Since 2005, nearly all such lawsuits have been thrown out on national security or other grounds. Meantime, Smith’s suit — one of hundreds the president faces each year — comes with an additional hurdle.
When the British newspaper the Guardian revealed the phone-records program, it published a classified court order to Verizon Business Network Services in which the NSA directed the company to turn over customers’ records. Smith is a customer of Verizon Wireless, not Verizon Business Network Services.
Her eight-page lawsuit says she believes a similar secret court order went to Verizon Wireless. If Smith cannot prove she was a target of surveillance, her lawsuit will face problems: The Supreme Court in February narrowly dismissed an earlier such case, ruling that those challenging surveillance could only “speculate” about what the government was doing.
“It’s a potential weakness,” Peter Smith acknowledged. “If we’re going to get shut down by a court that says you don’t even have a right to know if the order exists, we’re toast.”
But he and his wife are pressing their case, saying Anna Smith’s fear that her records are being monitored reflects the anxiety that millions of Americans with no connection to terrorism feel about the NSA’s activities.
Government officials have argued that the agency’s programs have been approved by Congress, overseen by a federal court and operated within rigorous guidelines. They emphasize that under the records-collection program, analysts are not listening to Americans’ calls. And they say the program has proved vital to disrupting terrorist plots in the United States and overseas.
For the Smiths, that’s not enough.
“It’s kind of the American way to stand up to authority when you feel something is wrong. I don’t live in Russia or China, where I’d probably disappear if I did this,” Peter Smith said. “Why would anyone care about Anna’s phone records? She’s a mom, has two kids, lives in Idaho. She engages in normal mom activities.”
For Anna Smith — a neonatal intensive care nurse at Providence Sacred Heart Medical Center & Children’s Hospital across the state’s border in Spokane, Wash. — those activities have rarely included politics or public policy. She said she did not follow the debate about surveillance and privacy that followed the disclosure in 2005 of warrantless wiretapping by the George W. Bush administration.
Even now, she said, she’s not familiar with the concept of “metadata,” the term being widely used to describe the types of information the government is collecting, such as phone numbers dialed and the length of calls but not their content.
“I follow the news very little,’’ Smith said. “I work full time and have two young kids. . . . To be honest, I don’t fully understand the law aspect of it and maybe not even the political aspect.”
But her interest was piqued when her husband brought up Snowden’s revelations one night in their home in an upscale neighborhood overlooking Coeur d’Alene, a resort town in northern Idaho on the other end of the state from Boise.
“I said, ‘Did you hear about how the government is collecting data on phone calls?’ ” Peter Smith recalled. “ ‘It seems like they’re collecting everyone’s data. They’re probably watching you, Anna.’ ”
“She said something like, ‘Well, they can watch me all they want because I’m not doing anything.’ ”
Anna Smith said she recalled feeling “disturbed that they’re doing surveillance of people’s cellphones without them knowing it.” She said she uses her iPhone 5 for virtually all of her communication, mostly through texting. “It’s pretty much my lifeline,” she said.
The couple continued discussing the issue, until late one night, Peter Smith read an article about the ACLU lawsuit. He decided he could file his own suit, using the ACLU’s as a model.
Mr. Smith texted Mrs. Smith, who was working at the hospital.
“I said, ‘If they’re doing this to you and we could prove it, this would be a lawsuit that you could file,’ ” Peter Smith said. “She was the only person I knew well enough to suggest something like this to. I wasn’t going to go around asking people to do it.’’
Anna Smith texted back, “Let’s do it.’’
In the interview, she said she believes Snowden “broke the law, and he has to live with the consequences of that.” But she also said that the information he leaked is “scary” and that she wants to bring awareness to the issue of government surveillance.
“A northern Idaho mom suing the president. That sounds outrageous, right?” she said. “We’ll see how far it goes, but I have no expectation that it will be easy.’’