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9th Cir. Will Hear Idaho Mom's NSA Surveillance Lawsuit

By Mark Wilson, Esq. | Last updated on

Add Anna Smith to the growing list of plaintiffs involved in lawsuits against the NSA's surveillance program. Smith is as innocuous as they come -- "a mother of two who lives in rural Idaho, works the night shift as a nurse and goes to the gym often," according to The Washington Post. Last year, she (with help from her lawyer/husband) sued the government for violating her Fourth Amendment rights by collecting her telephone data without a warrant.

Although Smith hasn't been particularly injured, her case is notable in that the U.S. District Court for the District of Idaho took evidence of NSA wiretapping provided by Edward Snowden as grounds for believing that she, like millions of other Americans with no connection to terrorism, is being spied on. Still, the District Court dismissed Smith's Fourth Amendment claims.

Now, as Boise Weekly reports, she's appealing to the Ninth Circuit.

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Snowden Revelations Helping Lawsuits Along

The District Court didn't kick Smith's case to the curb just because she couldn't prove she, specifically, was spied on. Back in 2006 and 2007, when it was revealed that Verizon and other phone companies were voluntarily giving the government access to customers' phone records, some customers sued. Several of these cases were dismissed after the Justice Department invoked the state secrets privilege when the customers tried to find evidence that they were being surveilled.

Without any proof that the government was listening, the plaintiffs couldn't show standing, and the cases were dismissed. (The rest of the cases were dismissed after Congress passed a bill granting immunity to the phone companies.) Today, the prevalence and endurance of stories about NSA spying has prompted more courts to take as probable the idea that an ordinary American's phone calls are being monitored, even if she can't prove with certainty that they are.

No Reasonable Expectation of Privacy?

The District Court dismissed Smith's lawsuit last year, finding no Fourth Amendment violation because Smith had no reasonable expectation of privacy in the phone numbers she dialed.

The District Court opinion, however, reveals a skepticism of the NSA's program. Judge B. Lynn Winmill noted: "[T]he data collected by the NSA goes beyond the telephone numbers that Smith dials, and reaches into her personal information. For example, the NSA's collection of the time and duration of phone calls is revealing: Would most citizens want to keep private the fact that they called someone at one in the morning and talked for an hour or two?"

Judge Winmill also pointed out that, even without precise GPS data, the NSA still knows where, geographically, the phone call enters the call routing system, allowing the government to roughly know where Smith was and to potentially plot her travel.

The District Court dismissed Smith v. Obama because Smith v. Maryland counsels against finding an expectation of privacy in phone numbers dialed. But in a separate case, the D.C. District Court was convinced that the scope of the NSA surveillance places this well outside the one-off "pen register" devices employed in Smith v. Maryland.

It all comes down to a question of degree: when does the sheer quantity of surveillance turn something reasonable into something unreasonable? We'll find out later this year. The Ninth Circuit has set a deadline of September 2 for briefs, according to Boise Weekly; no word yet on oral arguments.

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