Privacy Law

Federal judge tosses challenge to NSA surveillance, with reluctance

A federal judge in Idaho has dismissed a lawsuit challenging collection of telephone data by the National Security Agency, but he suggested the U.S. Supreme Court should revisit the issue.

Judge B. Lynn Winmill, chief judge of the U.S. District Court in Idaho, said in an opinion (PDF) issued on Tuesday that he was bound by precedent, report the Wall Street Journal (sub. req.) and the Spokesman-Review. But he thought the better argument was in a federal judge’s decision last year finding NSA data collection is probably unconstitutional.

Winmill cited a 1979 Supreme Court case, Smith v. Maryland, which found no expectation of privacy in numbers dialed by a suspected robber over a period of about two days. Another case, by the San Francisco-based 9th U.S. Circuit Court of Appeals, found no Fourth Amendment expectation of privacy in numbers dialed and the length and time of the calls. “The weight of authority favors the NSA,” he wrote.

Winmill noted the contrary decision last year by U.S. District Judge Richard Leon in Washington, D.C., which found NSA data collection is likely unconstitutional. Leon’s “thoughtful and well-written opinion” distinguished Smith, Winmill said, finding that the scope and duration of NSA data collection goes beyond the information collected about the robber’s phone calls. As Leon “eloquently observes,” Winmill wrote, “records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person’s life.”

“Judge Leon’s decision should serve as a template for a Supreme Court opinion,” Winmill wrote. “And it might yet. Justice Sotomayor is inclined to reconsider Smith, finding it ‘ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.’ ”

The plaintiff in the case before Winmill is a nurse, Anna Smith, of Coeur d’Alene, Idaho. She was represented by her husband, Peter Smith IV, and by a Republican state representative, Luke Malek.

Peter Smith is commercial litigator. “I am not by any stretch of the imagination a constitutional scholar,” Smith told the Wall Street Journal. “I’m a small-town lawyer with business clients. … This just didn’t seem to be the United States of America that we wanted to live in.”

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