ACLU Takes Phone-Records Challenge to Appeals Court

The ACLU has just filed its opening brief in the Second Circuit in its challenge to the NSA’s phone-records program.  The briefthe first appellate brief to be filed in any of the cases challenging the programis available here.  From the brief’s Introduction:

[The phone-records program is] unlawful.  The statute the government relies on cannot be used to collect call records. Even if it could be used for this purpose, the phone-records program involves collection on a scale far beyond what the statute permits on its face, and far beyond what Congress intended. The government cannot demonstrate, as the statute requires it to, that there are reasonable grounds to believe that all Americans’ call records, over a twelve-year period (and counting), are “relevant” to an ongoing investigation.

The program would be anathema to the Constitution even if it were authorized by statute. It is unreasonable within the meaning of the Fourth Amendment. It also violates the First Amendment by unjustifiably intruding on Plaintiffs’ associational privacy and by chilling communications that are central to Plaintiffs’ work.

The district court erred in dismissing Plaintiffs’ complaint and in denying their motion for a preliminary injunction. The ongoing surveillance of their associations is causing irreparable injury to Plaintiffs’ privacy and associational rights. And both the balance of equities and the public interest favor injunctive relief. While the government once contended the program was the “only effective means” of tracking the associations of suspected terrorists, it has retreated from that claim in this litigation, and two government review groups—including a panel appointed by the President himself—have rejected it. Record evidence confirms that the government could achieve its stated goals without placing hundreds of millions of Americans under permanent surveillance.

The Second Circuit has ordered the government to file its brief by April 10. 

About the Author(s)

Jameel Jaffer

Founding Director of the Knight First Amendment Institute at Columbia University, Former Deputy Legal Director at the American Civil Liberties Union and Director of the ACLU’s Center for Democracy, Author of The Drone Memos, Follow him on Twitter (@JameelJaffer).