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US govt appeals ruling denouncing NSA’s mass phone surveillance as unconstitutional

The US Justice Department appealed Friday a federal judge’s December ruling that advanced a legal challenge to the National Security Agency’s bulk collection of Americans’ telephone records.

The Justice Department filed the appeal with the US Circuit Court  of Appeals in Washington. US government lawyers are asking for a  dismissal of US District Judge Richard Leon’s ruling  that called the NSA’s domestic phone metadata   collection likely unconstitutional.

“I believe that bulk telephone metadata collection and  analysis almost certainly does violate a reasonable expectation  of privacy,” Leon wrote in mid-December.

“It’s one thing to say that police expect phone companies to  occasionally provide information to law enforcement; it is quite  another to suggest that our citizens expect all phone companies  to operate what is effectively a joint intelligence-gathering  operation with the government.”

After the Justice Department’s appeal of the Leon decision,  opposing lawyer and plaintiff Larry Klayman said he will ask the  appeals court to refer the case directly to the US Supreme Court,  AP reported.

Leon’s December ruling ultimately approved a request for  injunction filed by conservative activist Klayman and  co-plaintiff Charles Strange, and ordered the government to stop  collection through the NSA program of “any telephone metadata  associated with their personal Verizon accounts” and the  destruction of any of their metadata collected previously.

“I am not convinced at this point in the litigation that the  NSA’s database has ever truly served the purpose of rapidly  identifying terrorists in time-sensitive investigations, and so I  am certainly not convinced that the removal of two individuals  from the database will ‘degrade’ the program in any meaningful  sense,” he wrote.

Anticipating the government’s appeal, Leon placed a stay on his  order that may be lifted pending the outcome of future litigation  expected to continue through this year.

Meanwhile, the Foreign Intelligence Surveillance Act court, which  oversees government requests for surveillance orders, renewed the  telephone metadata collection program again Friday.

The clandestine court has ruled “on 36 separate occasions  over the past seven years, that the telephony metadata collection  program is lawful,” the Office of the Director of National  Intelligence wrote Friday.

Just one day prior to the Justice Department’s appeal in the case  challenging NSA surveillance power, another appeal was filed in a  concurrent case that has called into question the secrecy and  constitutionality of the agency’s data collection methods.

The American Civil Liberties Union filed an appeal  Thursday against the NSA’s indiscriminate collection of telephone  metadata after the group’s suit seeking to halt the policy was  dismissed last week.

The ACLU first filed suit against Director of National  Intelligence James Clapper in June 2013, following disclosures  supplied by former NSA contractor Edward Snowden that revealed  the classified NSA program that regularly compels phone companies  to provide the government with millions of phone records. The  civil liberties advocacy group argued that the program violated  Americans’ First and Fourth Amendment rights.

US District Judge William Pauley disagreed, dismissing the case  on December 27 and declaring that the NSA program is subject to  harsh oversight and is needed to effectively fight terrorism.

“There is no evidence that the government has used any of the  bulk telephony metadata it collected for any purpose other than  investigating and disrupting terrorist attacks,” he wrote.   “While there have been unintentional violation of guidelines,  those appear to stem from human error and the incredibly complex  computer programs that support this vital tool.”

The ACLU’s appeal again challenges the collection program, which  does not monitor individual conversations but tracks numbers  dialed, as well as the time and duration of the calls.

Meanwhile, Sen. Bernie Sanders (I-VT) has asked via a letter  dated Jan. 3 to outgoing NSA director Keith Alexander whether the  surveillance agency “has spied, or is the NSA currently  spying, on members of Congress or other American elected  officials.”

Sanders defined “spying” as “gathering metadata on  calls made from official or personal phones, content from  websites visited or emails sent, or collecting any other data  from a third party not made available to the general public in  the regular course of business,” the Guardian reported.

Elsewhere in the US government’s attempts to keep its sprawling  spy operations private, an appeals court ruled Friday that an  Office of Legal Counsel opinion concerning the FBI’s electronic  surveillance capabilities is exempt from the Freedom of  Information Act.

The 2010 opinion written at the FBI’s request by the OLC – which  supplies the White House and executive agencies with legal advice   – centers around the FBI’s use of “national security  letters” to access information. The opinion concluded that  US law does not bar electronic communications service providers  from voluntarily disclosing phone call records to the FBI without  legal process or a qualifying emergency.

The court’s decision justifies the FBI’s rejection of a request  made by the Electronic Frontier Foundation to see the opinion  made public. The FBI claimed it needed to shield the opinion  based on classified information and that it revealed sensitive  details of the agency’s operations.



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