The Supreme Court may be the best hope to stop the NSA

Shane Harris writes: Now that the House of Representatives has voted down an amendment that would have significantly restricted what information the National Security Agency can collect about Americans, the best hope of curtailing the spy agency’s powers lies with the courts. And while NSA critics have failed to rein in the eavesdropping agency through legislative action, they may have more luck with the third branch of government — thanks to a leaked classified document, a rare bit of good fortune for a leading civil liberties group, and a sympathetic justice of the Supreme Court.

The fact that more than 200 lawmakers voted against a key NSA collection program, and one authorized by the long-controversial Patriot Act, represents a victory of sorts for surveillance critics. There has rarely been such a pronounced opposition to surveillance authorities, and the fact that the Obama administration had to mount a full court press to preserve the program, and still only eked out a narrow win, may give opponents some hope that a legislative effort could be mounted again with a different result. But there is no clear next step legislatively. No bill or amendment on the table. Yet there is a path forward on the judicial front.

Challenges to the NSA’s surveillance programs have historically failed in large part because no one has been able to prove he had his communications scooped up in the agency’s electronic dragnets. That information is an official secret. The American Civil Liberties Union, one of the most stalwart opponents of the NSA’s broad surveillance authorities, failed to challenge the agency’s operations in the Supreme Court because of this Catch-22. It couldn’t prove it had been spied upon, even though the government acknowledged — generally — that such spying does occur.

But now, classified documents released by the ex-NSA contractor Edward Snowden leave no doubt that at least one telecommunications company, Verizon Business Network Services, has handed over bulk telephone metadata to the NSA under a court order.

The key for a new challenge by the ACLU, which it filed last month in U.S. District Court, is that it’s a customer of Verizon Business Network Services. Not just Verizon, but this particular division of Verizon. This is the closest thing the group has had to a smoking gun, and conceivably it could be sufficient to establish legal standing to bring the lawsuit. The case could end up in the Supreme Court.

But to succeed, the ACLU — or any challenger — will have to convince jurists that the long-standing legal treatment of metadata is outdated and needs to be changed. [Continue reading…]

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