There's nothing like a secret domestic spying program to bring together the right and left sides of the political spectrum in defense of civil liberties. Last week, for example, both the left-leaning American Civil Liberties Union (ACLU) and the right-wing Freedom Watch (FW) filed federal lawsuits seeking to stop the snooping revealed by whistleblower Edward Snowden, specifically the PRISM program, in which the National Security Agency (NSA) has been collecting “metadata” on all American telephone calls for at least seven years.

The complaint filed by the ACLU describes the domestic spying program as follows:

In response to information published by the media, the government has acknowledged that it is relying on Section 215 [of the Patriot Act] to collect “metadata” about every phone call made or received by residents of the United States. 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. It 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 ACLU suit argues that the program violates the First and Fourth Amendments to the Constitution by having a chilling effect on the exercise of free speech and free association via the telephone, and by seizing private information without a warrant.

The Freedom Watch lawsuit—which has a companion suit filed against Verizon and other telecom companies that cooperated with PRISM—characterized the program in language remarkably similar to that used by the ACLU:

The government has acknowledged that it is collecting “metadata” about every phone call made or received by residents of the U.S., and these records provide intricate details, including the identity of the individual who was spoken to, the length of time of the conversation, and where the conversation took place. Moreover, it gives the government a comprehensive record of an individual’s associations, speech, and public movements while revealing personal details about an individual’s familial, political, professional, religious, and intimate associations.

Like the ACLU, Freedom Watch argues that the spying violated the First and Fourth Amendments, and adds civil claims for intentional infliction of emotional distress and intrusion upon seclusion. A class action suit, the FW case claims a class encompassing virtually all residents of the United States and seeks not only a declaration that the snooping is unlawful, but also money damages of $20 billion. 

Both cases emphasize that PRISM requires no level of reasonable suspicion or probable cause whatsoever to trigger government collection of the data, which the program assumes the government can have simply for the asking. In Fourth Amendment terms, this can only mean that the government believes that Americans have no right to any privacy regarding our conversations with others beyond shielding their content…assuming the government is not also eavesdropping on at least some conversations without a warrant.

As both lawsuits contend, the mere existence of the call tracking and the database of all calls must inevitably erode people’s belief that they live in a free society: whenever Americans pick up a phone, they now know that the government is creating a permanent record of that call, and must decide whether to speak or not in light of government ears.

-Matt Bewig

To Learn More:

ACLU Files Lawsuit Seeking to Stop the Collection of Domestic Phone Logs (by Charlie Savage, New York Times)\

Former Justice Attorney Seeks $23 Billion in Damages for NSA Surveillance Programs (by Josh Hicks, Washington Post)

First Lawsuit Over NSA Phone Scandal Targets Obama, Verizon (by David Kravets, Wired)

NSA Phone 'Dragnet' Called Unconstitutional (by Annie Youderian, Courthouse News Service)

ACLU v. Clapper (Complaint) (pdf)