Lawsuit is Another Shot in War to Stop NSA

Rand Paul sues to stop NSA, while other lawmakers try to cut off its water.

Conservative and libertarian groups have moved beyond protests to oppose the National Security Administration’s digital surveillance of Americans.

Sen. Rand Paul (R-Ky.) filed a class-action lawsuit Wednesday accusing President Obama and individual members of his administration as the culprits in an ongoing violation of the 4th Amendment for failing to limit or end warrantless surveillance of U.S. residents via NSA programs that collect metadata, mapping the source and destination of most telephone calls placed in or through the United States.

The suit names President Obama, U.S. Director of National Intelligence James Clapper, Director of National Security Agency Keith Alexander and FBI Director James Comey as being personally liable for the data-collection programs, which were launched in 2007 under the administration of Republican former President George W. Bush (and revealed in 2013 in documents released by whistleblower and former NSA contractor Edward Snowden).

In addition to requiring telecom carriers to turn over metadata records on the bulk of phone calls placed by their customers, the NSA’s PRISM project directly tapped the datacenter-network feeds of nine major Internet companies.

Both efforts were authorized under provisions of the USA Patriot Act signed into law by George W. Bush in October 2001 and updated twice in subsequent years. Despite promises to end the warrantless wiretapping of Americans after he was elected, President Obama has signed or approved extensions to the laws and resisted substantive changes to the NSA’s programs, even when those changes were recommended by expert panels that he personally appointed.

Paul filed a class-action lawsuit in conjunction with conservative activist group Freedom Works, but filed it with an unusual element: Class actions are submitted on the assumption they exist to defend a group of individuals who are unable to defend themselves individually – but doesn’t name the class it claims to defend. “This [situation] is defined by the arrogance of government that has decided that the Fourth Amendment really allows a warrant to be written for everybody’s phone records. It shows the enormity and the egregiousness of the government’s intrusion,” Paul told CNN. “I would say that this example of this being 300 million people being affected really illustrates the problem that we have a generalized warrant, not a specific warrant.”

In the suit, Paul demands an explicit admission from the Obama administration that collecting telephone metadata in bulk is unconstitutional, as well as a court order forcing the NSA to delete stored data that is relevant to Paul or any member of the class – which boils down to everyone in America. The language of the suit is particularly aggressive in putting the blame specifically on President Obama and the named members of his administration. “I am filing a lawsuit against President Barack Obama because he has publicly refused to stop a clear and continuing violation of the 4th Amendment,” Paul wrote in a statement posted Feb. 12 announcing his intention to file suit the next day. “The Bill of Rights protects all citizens from general warrants. I expect this case to go all the way to the Supreme Court and I predict the American people will win.”

The Obama administration continues to defend the metadata program as legal under Section 215 of the Patriot Act, but neither citizens nor other lawmakers are so sure about the initiative. Forty-eight percent of registered voters support the NSA metadata program and 47 percent oppose it, according to a survey published in January by Quinnipiac University. Five percent weren’t sure.

Many conservatives in Congress, however, are so sure of their opposition that they have issued explicit threats to repeal or sunset the elements of Section 215 the NSA uses to justify its program, which authorizes the government to collect “any tangible thing” relevant to a terrorism investigation.

It is impossible to use even that broad a justification to defend wholesale collection of metadata on every phone call without any indication that any single call is related in any way to a terrorist investigation, however, according to both a position paper from the left-leaning American Civil Liberties Union and distinctly not-left-leaning U.S. Rep. James Sensenbrenner Jr. (R-Wis.), who wrote the original USA Patriot act and much of its two later re-authorizations. “Unless Section 215 gets fixed, you, Mr. Cole, and the intelligence community will get absolutely nothing, because I am confident there are not the votes in this Congress to reauthorize it,” Sensenbrenner warned Deputy Attorney General James Cole during the Feb. 4 hearing.

Even state legislatures that lack the power to directly order the NSA to stop are joining the movement by trying to make it impossible for NSA facilities to operate in their states. Utah State Rep. Marc Roberts filed a bill earlier this week that would make it illegal for anyone to supply the 1.7 million gallons of water it takes to cool the 400,000 square feet of datacenter space in the NSA’s giant new datacenter in Utah.

Legislators in Maryland have filed similar bills to cut off support to NSA headquarters in Ft. Meade, Md., as have legislators in Kansas, New Hampshire, Missouri, Alaska and other states.

“If you want to spy on the whole world and American citizens, great, but we’re not going to help you,” Roberts told U.K. newspaper The Guardian.

Rand Paul agrees with the sentiment, but not the indirect means. “The question here is whether or not, constitutionally, you can have a single warrant apply to millions of people,” he told FoxNews, according to a quote at MSNBC.com. “What better way to illustrate the point than having hundreds of thousands of Americans sign up for a class action suit?”

 

Image: Rand Paul/Creative Time Reports/ Trevor Paglen/Creative Commons license