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American Civil Liberties Union et al. v. Clapper et al.
By Michelle Sohn – Edited by Katie Mullen

American Civil Liberties Union et al. v. Clapper et al., No. 1:13-cv-03994 (S.D.N.Y. filed June 11, 2013)
Scheduling Order

At a hearing last Thursday,  Judge William Pauley of the U.S. District Court for the Southern District of New York denied the government ‘s request to delay a hearing date for American Civil Liberties Union et al. v. Clapper et al., reports ArsTechnica.  The denial is the latest in the American Civil Liberties Union’s (“ACLU’s”) challenge to the Obama administration’s metadata collection practices, specifically collecting Verizon’s customer records.

The Guardian provides a synopsis of the case, describing the judge’s dismissal of the government’s request as the administration being “rebuffed.” JOLT Digest has previously reported on the U.S. government’s programs that collect massive amounts of data from Verizon and Internet companies such as Google and Facebook. The Foreign Intelligence Surveillance Court (“FISC”) order, which Edward Snowden leaked to the Guardian, authorizing the metadata collection is hosted by the Guardian.

Just days after Edward Snowden leaked the information about the National Security Agency’s data collection programs to the Guardian, the ACLU filed suit. At the heart of the ACLU’s lawsuit is the government’s practice of collecting metadata from Verizon customers. “The practice 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.” Complaint at 1. According to the complaint and the FISC order, the government has used section 215 of the Patriot Act, 50 U.S.C. § 1861, to request the metadata. Section 215, often called the “business records provision,” enables the government to “make an application for an order requiring the production of any tangible things.” However, the ACLU argues that the government’s metadata collection practices exceed the scope of section 215 and further, violate the First and Fourth Amendments of the U.S. Constitution. The ACLU states that its “work often depends on [the] ability to keep even the fact of their discussions with certain individuals confidential.” Complaint at 7.  As such, the ACLU stipulates, “The fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact Plaintiffs [the ACLU].” Complaint at 9.

Although Judge Pauley’s denial of the government’s request is a victory for the ACLU, it is a small one in the face of the challenges the lawsuit will encounter. Last term, in Clapper v. Amnesty Int’l USA, 568 U.S. __ (2013), slip op., the Supreme Court held that the plaintiffs lacked Article III standing because they could not demonstrate the requisite legally cognizable injury-in-fact. In Clapper, a group of journalists and advocacy groups including the ACLU, argued that the government’s wiretapping practices forced them to take on costly measures to ensure confidentiality. However, the Court rejected this argument and held that the injury attributed to the government was too speculative to establish “certainly impending” harm. Id. at 17. As the government pointed out in its ultimately failed request for a delay, Clapper presents a formidable barrier for the ACLU’s chance of reaching the merits on its claim.

Posted On Aug - 4 - 2013 Comments Off

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