Snowden leaks give new life to lawsuits challenging NSA surveillance programs

Hopes are high among privacy-protection advocates and government-transparency proponents that the latest batch of lawsuits will fare better before judges, perhaps clearing the "standing" hurdle and moving on to test the core argument that such surveillance programs violate the Constitution.

The acknowledgement of these surveillance programs by government officials could mean "a sea change for judges to now reject the government’s argument for the need for secrecy – as well as the lack-of-standing claim,” says Mary-Rose Papandrea, a constitutional law professor at Boston College Law School.

The suit the EFF filed Tuesday represents 19 organizations, including Unitarian church groups, gun ownership advocates, and a broad coalition of political advocacy organizations. They argue that the NSA violated their First Amendment right of association by illegally collecting their call records.

The NSA's mass, untargeted collection of Americans' phone records “violates that right by giving the government a dramatically detailed picture into our associational ties," said Cindy Cohn, legal director of EFF, in a statement Tuesday. "Who we call, how often we call them, and how long we speak shows the government what groups we belong to or associate with, which political issues concern us, and our religious affiliation.”

Signs are growing in other quarters, as well, that the legal wall is being chipped away. Among them:

• On Monday, the chief judge of the US Foreign Intelligence Surveillance Court (FISC), a secret federal court that oversees requests for surveillance warrants against individual targets inside and outside the US, ordered the release of the court's decision from a 2008 case that forced Yahoo! to turn over user data to the government as part of the NSA's PRISM surveillance program.

• Some of the Internet giants that take part in the government surveillance programs are calling for more openness – and could back that up with legal action, some experts say. Google last month asked the FISC, also known as the FISA court, for permission to release the number of government requests it has received for user data. Microsoft this week requested permission to share data about NSA requests for customer information.

• On Capitol Hill, some lawmakers, from both political parties, are agitated about the scope of the surveillance programs and may lobby for changes in how they operate. The House Judiciary Committee grilled federal officials Wednesday about the phone metadata and other surveillance programs. Deputy Attorney General James Cole replied that the NSA surveillance programs “achieve the right balance” between protecting Americans’ privacy and their safety.

But Rep. John Conyers Jr. (D) of Michigan said collection of the metadata under Section 215 of the Patriot Act “can amount to a Fourth Amendment violation” before any use is made of it. “You’ve already violated the law,” he told the government witnesses. “I feel very uncomfortable about using aggregated metadata on hundreds of millions of Americans,” he added. “This is unsustainable, it’s outrageous and must be stopped immediately.”

Such developments, legal experts say, improve plaintiffs' chances of getting their day in court on the core issues – whether or not they win.

“It’s not a forgone conclusion that these programs are illegal,” Professor Vladeck says. “But it’s a lot easier to change the law once you know what the law is – and we haven’t really known what authorities the government claims” when it goes before the secret Foreign Intelligence Surveillance Court to get sign-off for certain surveillance programs.

“Until Snowden came along, we had no idea how to interpret Section 215 of the Patriot Act,” Vladeck adds. “Now, even if these cases lose on the merits, at least we’ll find out.”

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