Such cases face formidable obstacles. The government tends to fiercely resist them on national security grounds, and the surveillance is so secret that it’s hard to prove who was targeted. Nearly all of the roughly 70 suits filed after the George W. Bush administration’s warrantless wiretapping was disclosed in 2005 have been dismissed.
But the legal landscape may be shifting, lawyers say, because the revelations by Edward Snowden, a former National Security Agency contractor and the principal source of the leaks, forced the government to acknowledge the programs and discuss them. That, they say, could help plaintiffs overcome government arguments that they lack the legal standing to sue or that cases should be thrown out because the programs are state secrets. A federal judge in California last week rejected the government’s argument that an earlier lawsuit over NSA surveillance should be dismissed on secrecy grounds.
“There is one critical difference from the Bush era. We now have indisputable physical evidence that the conduct being challenged is actually taking place,’’ said Stephen Vladeck, an expert on national security law at American University law school. He said Snowden’s disclosures make it “more likely” that cases will at least be allowed to go forward in court, leading to a years-long legal battle over surveillance and privacy.
A political debate over those issues has been roiling Washington since the British newspaper the Guardian reported on the telephone records program and published a classified court order to Verizon Business Network Services in which the NSA directed the company to turn over customers’ records. The information is “metadata” that includes the phone numbers dialed and the length of calls.
The Washington Post and the Guardian then disclosed the existence of a separate program, known as PRISM, that is aimed at collecting the online communications of foreign targets from major Internet companies.
Since then, three lawsuits have been filed challenging the constitutionality of the telephone records program: one by the American Civil Liberties Union in federal court in New York; another in federal court in Idaho by a nurse who is a Verizon Wireless customer; and the third in federal court in the District by Larry Klayman, founder of the conservative group Judicial Watch. Klayman also filed suit in D.C. federal court over the PRISM program.
Last week, the Electronic Privacy Information Center filed a petition with the Supreme Court asking it to vacate what it called the unlawful order to Verizon Business Network Services. “The records acquired by the NSA under this Order detail the daily activities, interactions, personal and business relationships, religious and political affiliations, and other intimate details of millions of Americans,’’ the petition said.