ACLU files suit over NSA surveillance, citing 'chilling effect'

The American Civil Liberties Union (ACLU) filed a complaint in a New York district court this afternoon that says the US government's practice of obtaining secret warrants to trawl through vast amounts of American phone records – what it calls "dragnet acquisition" – "is akin to snatching every American’s address book – with annotations detailing whom we spoke to, when we talked, for how long, and from where."

The ACLU named five defendants, who are some of the most powerful people in the US intelligence community and the Obama administration: Director of National Intelligence James Clapper; Director of the NSA Keith Alexander; Secretary of Defense Chuck Hagel; Attorney General Eric Holder; and FBI Director Robert Mueller.

The organization says that since the US government confirmed an order issued by the secret Foreign Intelligence Surveillance Court six weeks ago requiring phone carrier Verizon to turn over metadata relating to the calls made by all of its subscribers to the National Security Agency (NSA) and FBI, and that since the ACLU is a Verizon customer, that it has standing to contest the legality of the government's behavior.

"Government officials have indicated that the [Verizon] order is part of a program that has been in place for seven years and that collects records of all telephone communications of every customer of a major phone company, including Verizon, AT&T, and Sprint," the ACLU writes in its complaint, which is also supported by the New York Civil Liberties Union. "The government’s surveillance of their communications ... allows the government to learn sensitive and privileged information about their work and clients, and it is likely to have a chilling effect on whistle blowers and others who would otherwise contact Plaintiffs for legal assistance."

The ACLU says the practice violates the First Amendment to the US Constitution, which guarantees freedom of speech and assembly, and the Fourth Amendment, which protects against unreasonable search and seizure. They also say it violates Section 215 of the Patriot Act, which the government says has made its searches legal.

From the moment that the Verizon warrant was reported in a scoop by The Guardian of the UK earlier this week, challenges over government surveillance practices on constitutional grounds seemed inevitable. The ACLU suit today makes no mention of the PRISM program, in which the government has been accessing the online habits of customers of companies like Microsoft and Google.

The ACLU complains that Section 215 of the Patriot Act has made it too easy for the US government to go on fishing expeditions through Americans' phone records, while also shielding the government from effective external review of its actions.

"Section 215 also relaxed the standard that the FBI is required to meet to obtain an order to seize these records. Previously, FISA [Foreign Intelligence Surveillance Act] required the FBI to present to the FISC 'specific and articulable facts giving reason to believe that the person to whom the records pertain [was] a foreign power or an agent of a foreign power.' In its current form, Section 215 requires only that the records or things sought be 'relevant' to an authorized investigation 'to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities,” the organization writes.

The ACLU also complains that orders issued under the section are accompanied by gag orders and that while companies (Verizon, say) have the right to appeal the gag, "the FISC [Foreign Intelligence Surveillance Court] must treat the government’s claim 'that disclosure may endanger the national security of the United States or interfere with diplomatic relations ... as conclusive.' " The ACLU says that at any rate, the government has exceeded the limitations of Section 215 with its mass order to Verizon and perhaps other companies.

In addition to asking the court to declare the surveillance a violation of Section 215 and unconstitutional, the ACLU is also seeking a court order requiring the "defendants to purge from their possession all of the call records of Plaintiffs' communications in their possession collected pursuant to the Mass Call Tracking."