After years of secrecy, the National Security Agency’s phone records surveillance program had its day in open court on Friday, as civil liberties lawyers asked a federal judge in New York to shut it down, and government lawyers claimed ordinary Americans cannot legally challenge it.
Department of Justice attorney Stuart Delery said ordinary Americans have no standing to challenge the collection of their call records. Citing a 1979 Supreme Court ruling, he said Americans have no reasonable expectation of privacy for those records, and that only phone companies can challenge their collection.
No telecommunications firm has ever fought an order from the Foreign Intelligence Surveillance Court, which oversees the NSA program and is closed to the public.
U.S. District Court Judge William H. Pauley III questioned Delery, however, on whether all members of Congress were aware that the Patriot Act was used to support such a far-reaching program. Rep. James Sensenbrenner (R-Wisc.), the original author of the act, claimed in a brief to the court that he never envisioned the law as a way to sweep up every phone record. It appears many members of the House of Representatives, meanwhile, were uninformed about the Foreign Intelligence Surveillance Court’s interpretation of the law when they voted on its reauthorization in 2011.
The ACLU’s lawsuit is one of the most prominent of the legal efforts to stop the call records program, along with a suit by conservative lawyer Larry Klayman in Washington District Court and a request by the Electronic Privacy Information Center to have the Supreme Court consider the program on an emergency basis. The center’s request was turned down Monday.