Court Considers Suit Against NSA Phone Surveillance


WASHINGTON—Can a government computer program violate a person’s constitutional rights?

A federal appeals court weighing the legality of a controversial National Security Agency phone surveillance program wrestled with that question Tuesday as it discussed whether someone’s rights could be violated if information about them was gathered by a machine but never looked at by a human being.

The court is one of three appeals panels around the country reviewing legal challenges to the NSA’s surveillance of millions of Americans’ phone records and the issue may eventually be decided by the Supreme Court.

On Tuesday, a three-judge panel heard the appeal of a lower court’s ruling last year that the NSA program “almost certainly” violates the Constitution’s Fourth Amendment protection against unreasonable searches and seizures. Other judges, including those who sit on the Foreign Intelligence Surveillance Court, have ruled the program is legal.

Much of the hour and a half argument centered on whether the initial gathering of bulk phone call records by computers violated the Constitution or if a violation occurred when an NSA analyst searched for a specific customer’s records. The NSA program collects the records of incoming and outgoing calls, and the duration of those calls, but not the contents of the conversations.

“There’s no constitutionally protected interest that’s been violated by the mere collection of telephone business records,” argued Justice Department lawyer Thomas Byron. The analysis of those records is also permitted because the agency is careful to limit how intrusive its searches are, he said. The vast majority of the information gathered by the government, he added, would never be viewed by an actual person.

The plaintiff in the case, conservative activist Larry Klayman, called the program “the most outrageous abuse of freedom in our history.’’

The judges struggled to follow Mr. Klayman’s arguments at times, particularly when he cited what he called “invasions’’ of his cellphone as evidence the government is lying about the extent to which it snoops on citizens, or “gets into people’s underwear, so to speak.’’

One of the judges, Stephen Williams, tried to pin down Mr. Klayman on exactly how the surveillance goes beyond past legal precedent, at one point saying in frustration: “You’re telescoping the process in a way that obscures the analysis.”

Another Judge, David Sentelle, suggested..

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