WASHINGTON — The American Civil Liberties Union filed a lawsuit on Tuesday against the Obama administration over its “dragnet” collection of logs of domestic phone calls, contending that the once-secret program — whose existence was exposed by a former National Security Agency contractor last week — is illegal and asking a judge to both stop it and order the records purged.
The lawsuit, filed in New York, could set up an eventual Supreme Court test. It could also focus attention on this disclosure amid the larger heap of top secret surveillance matters that were disclosed by Edward J. Snowden, a former NSA contractor who came forward on Sunday to say he was the source of a series of disclosures by The Guardian and The Washington Post.
The program “gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious and intimate associations,” the complaint says, adding that it “is likely to have a chilling effect on whistle-blowers and others who would otherwise contact” the ACLU for legal assistance.
The Justice Department did not respond immediately.
The ACLU has frequently assisted other plaintiffs in challenges against national security policies, but the government has generally persuaded courts to dismiss such lawsuits without any ruling on the legal merits after arguing that litigation over any classified program would reveal state secrets or that the plaintiffs could not prove they were personally affected and so lacked standing to sue.
This case may be different. The government has now declassified the existence of the program on domestic call record “metadata.” And the ACLU itself is a customer of Verizon Business Network Services — the subsidiary of Verizon Communications that was the recipient of a secret court order for all its domestic calling records — which it says gives it direct standing to bring the lawsuit.
The call logging program is keeping a record of “metadata” from domestic phone calls, including which numbers were dialed and received, from which location, and the time and duration of the communication, officials have said.
The program began as part of the Bush administration’s post-9/11 programs of surveillance without warrants, and, it is now known, it has continued since 2006 with the blessing of a national security court, which has ruled in still-secret legal opinions that such bulk surveillance was authorized by a section of the Patriot Act that allows the FBI to obtain “business records” if they are relevant to a counterterrorism investigation.
Congress never openly voted to authorize the NSA to collect logs of hundreds of millions of domestic phone calls, but the administration notes that some lawmakers were briefed on the program. Some members of Congress have backed it as a useful counterterrorism tool, while others have denounced it.
“The administration claims authority to sift through details of our private lives because the Patriot Act says that it can,” wrote Representative Jim Sensenbrenner, Republican from Wisconsin. “I disagree. I authored the Patriot Act, and this is an abuse of that law.”
Over the weekend, in hope of preventing a backlash, James R. Clapper, the director of national intelligence, also disclosed details about privacy protections built into the program. Among them, officials may access the database only if they can meet a legal justification — “reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.” To deter abuse, queries are audited under the oversight of judges on a national security court.
Executive branch officials and lawmakers who support the program have hinted in public that some terrorist plots have been foiled and intelligence leads have been identified by using the database. In private conversations, they have also explained how it is used: Investigators start with a specific phone number that is already believed to be linked to terrorism, and scrutinize the group of people who have called that number — and other people who in turn called those in the first group, and so on — in an effort to identify any co-conspirators.