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9th Cir. Skeptical of Standing in Idaho NSA Surveillance Suit

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By Mark Wilson, Esq. on December 11, 2014 11:18 AM

On December 8, the Ninth Circuit heard oral arguments in the case Smith v. Obama, in which a nurse from Idaho, Anna Smith, challenged the NSA's warrantless collection of phone metadata as a violation of the Fourth Amendment.

Yes, there was talk about Smith v. Maryland. Yes, there was talk about the Fourth Amendment. Actually, though, we've seen this movie before. If you can even get to the merits, it's likely a violation and probably distinct from Smith v. Maryland, which was a short-term, targeted investigation. What's more important to this case is whether Anna Smith even has standing to bring the case.

How Do You Prove An Injury?

Anna Smith actually has no direct evidence that she, particularly, had her communications surveilled by the NSA. Judge Richard Tallman immediately pointed out that, while it's known that Verizon Business calls were monitored, there's nothing in the record to indicate that consumer calls were recorded.

Peter Smith, Anna's attorney (and husband), essentially argued that you can deduce Anna's conversations are being listened to from declarations by Verizon and NSA officials in which they say that multiple telecommunication providers are being monitored. And, he says, if the program is as successful and comprehensive as the government claims, it follows that the program must necessarily sweep up every single call.

Got it? Logic is your evidence. This, however, doesn't go very far in proving that Anna Smith's calls were listened to. Rather, it suggests that it's possible the NSA swept up her calls in its dragnet; or rather, that it's not improbable to suggest they were. Judges Tallman, Margaret McKeown, and Michael Daly Hawkins didn't like this formulation of proving by inference.

Focus on the Data, Not the Method

The government's response? Hey, man, it's all metadata. This has always been the government's go-to argument on the merits (because these cases usually get dismissed when the plaintiff can't prove an injury): Just collecting information about who called whom and when isn't a Fourth Amendment search. The response to that, brought by McKeown, is that the data themselves are collectable, but this case is all about the method. "Unlike Smith, you have a very different scope and duration, and he says that changes the reasonableness calculus," McKeown said, referring to Peter Smith's argument.

Thomas Byron, arguing for the government, said that Smith determines whether there's been a search in the first instance. And that's based on a reasonable expectation of privacy -- but Byron wants that limited just to the data and not the method. Peter Smith, on the other hand, wants the method of collection folded into the analysis of whether there's a search. On this issue alone, the Ninth Circuit could conclude that the previous Smith is distinguishable and not controlling.

Ultimately, though, this will probably come down to standing, as it always does, thanks to a lack of evidence and the doctrine of constitutional avoidance.

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