NSA Fact Sheet

WHAT: The ACLU of San Diego & Imperial Counties, in conjunction with the two other California ACLU affiliates, filed a class action lawsuit seeking to enjoin AT&T and Verizon from disclosing customers’ phone records to the National Security Agency. The suit comes in the wake of reports that at least three major telecommunications companies have been handing over the calling information of millions of Americans since late 2001. Under the NSA program, the federal government collected the phone logs of tens of millions of Americans and American businesses. Under existing law, phone companies are not allowed to share that kind of information without customer consent, search warrants, or valid legal process. This type of information allows federal agents to document every person talked to, where the call originated, where it was received, and how long the call lasted. The story broke in USA Today on May 10, 2006.

WHO: Local plaintiff is Rev. Stephen Mather of the Coronado Community Church in Coronado, CA. As a minister, Rev. Mather relies on the confidentiality of his communications, and joined the lawsuit because he sees the data-mining as an intrusion into the free practice of religion.

Other plaintiffs include former member of Congress Tom Campbell, actor Richard Belzer, journalist Marc Cooper, journalist Robert Scheer, and a number of ministers, doctors, a psychiatrist, a law professor, and attorneys, all of whom depend on the confidentiality of their communications.

WHY: The ACLU suit argues that the data-mining is a violation of the law and of public and customer trust. The spying violates the fundamental privacy and due process rights of people whose telephone records have been divulged without warrant, notice or consent. The suit also charges that, because of the program’s secrecy, we don’t know the full truth about the program. Since the program effectively spies on the American people, it is vital for the health of our democratic society that the American people know whether their Fourth Amendment freedoms and statutory rights are being assaulted. Federal statutes protect innocent Americans from having their private information shared with the government absent a court order.

The Bush Administration’s “dragnet” security, in which everyone is turned into a suspect, is the wrong way to make Americans safer. Instead, the approach is overreaching and ineffective, because the terrorist needle in the haystack is now effectively hidden in an exponentially larger haystack.

Case Progress

The complaints allege that the companies violated the right to privacy in Article I, Section I of the California Constitution, as well as the Public Utilities Code. AT&T and Verizon have removed the cases to federal court, asserting a federal jurisdictional claim. A judge refused to dismiss the lawsuit, which the federal government sought to block under the “state secrets” doctrine.

Subsequently (August 17, 2006), a federal district court judge ruled against the administration’s warrantless NSA surveillance program in ACLU v. NSA, saying it was illegal and unconstitutional, and placed a permanent injunction on the secret program. Judge Anna Diggs Taylor of the US District Court in Michigan, wrote that “[t]here are no hereditary Kings in America and no powers not created by the Constitution,” so all the president’s “inherent powers” must derive from the Constitution. She ruled that the government could not engage in wiretapping or continue to collect data without a warrant

The Michigan case was the first federal challenge to the NSA program, but numerous challenges to the phone companies’ complicity in the federal program have been brought before public utilities commissions and courts across the country.