Rand Paul’s lawsuit against the National Security Agency over its phone metadata program claims the NSA’s widespread information collection violates the Fourth Amendment privacy rights. The lawsuit, filed together with the conservative FreedomWorks group, may be an attempt to build on Paul’s growing reputation in advance of a possible 2016 presidential run-up.
But does it have a chance of success?
Rand Paul’s lawsuit joins an increasingly crowded set of plaintiffs, with several similar cases already pending against the NSA.
The NY Times reports that Rand Paul’s status as a rising star of the Tea Party faction of the Republican Party — one who staged a nearly 13-hour filibuster on the floor of the Senate in March raising concerns about the rules governing “targeted killings” using drone strikes — his lawsuit may attract particular attention.
“Today we ask the question for every phone user in America: can a single warrant allow the government to collect all your records, all the time?” Mr. Paul said in a statement. “I don’t think so.”
The lead lawyer is Kenneth T. Cuccinelli II, the former attorney general of Virginia. Bruce Fein, a former Reagan administration attorney, is also among the lawyerson the case.
The Obama Defence
The Obama administration has defended the program as lawful, noting that 15 judges on the Foreign Intelligence Surveillance Court have authorized it for 90-day intervals dating back to 2006. A 1979 Supreme Court ruling held that “metadata” — records showing that calls took place, but not their content — is not protected by the Fourth Amendment.
“We remain confident that the program is legal, as at least 15 judges have previously found,” Peter Carr, a Justice Department spokesman, said on Wednesday.
The Bush administration began the bulk call records program in 2001 based on a secret claim of presidential power, and it operated outside of any statutory or judicial framework until the court in 2006 granted a Justice Department motion to issue orders to phone companies for the records. The Justice Department motion was based on the argument that a provision of the Patriot Act that allows the F.B.I. to collect business records deemed relevant to an investigation could allow the N.S.A. to collect records in bulk.
Mr. Paul filed his lawsuit in the Federal District Court for the District of Columbia. In December, Judge Richard J. Leon of that court ruled in a similar lawsuit brought by Larry Klayman, a conservative legal activist, that the program probably violates the Fourth Amendment because its expansive scope makes it different from case considered by the Supreme Court in 1979. The Justice Department has appealed the decision.
The issue now is whether there is the possibility of a win in Paul’s lawsuit.
The legal problem facing the ACLU and other NSA litigants may be establishing that particular people or organizations making legal claims have been hindered or harmed in some way.
One of the problems for members of class action suits is that there’s no definitive way to tell whether the NSA actually collected metadata from them.
See: New York Times