An appeals court heard oral arguments in Smith v. Obama on Monday to determine whether to uphold the dismissal of the case in a lower court.
In one of four cases, in the wake of Snowden leaks, challenging the database created by National Security Agency (NSA), Anna Smith alleged that U.S. President Barack Obama and U.S. intelligence agencies violated her Fourth Amendment rights when telephone records were collected under the Patriot Act. As a Verizon Wireless customer, she claimed that the program revealed “personal details and relationships that most people customarily and justifiably regard as private,” according to the case's opening brief.
During the appeal, Anna Smith's husband and lawyer, Peter Smith, argued that Anna's phone service provider was included in a dragnet surveillance effort by the U.S. government. The judges, however, noted that no specific telecommunications providers were ever listed in the declaration of Teresa H. Shea, signals intelligence director, National Security Agency, and there was no way to determine whether Anna's information was explicitly collected.
“Your honor, we're not saying that every phone call has ever been tracked or the call record ever been collected,” Peter argued before a three-judge panel in the U.S. Court of Appeals for the 9th Circuit. “What we're saying is it's very likely at this point in the proceeding that Anna's records have been swept up in this program.”
A district court had dismissed Anna Smith's case citing the legal precedent of Smith v. Maryland, a 1979 Supreme Court case that is, according to an Electronic Frontier Foundation (EFF) blog, "one of the cornerstones of the so-called 'third-party doctrine,' the idea that people have no expectation of privacy in information they entrust to others." In that case, phone numbers dialed by a criminal suspect were collected over a three-day period.
The EFF blog contended the doctrine "it's outdated to say the least."
The judges on Monday pressed Peter on whether Anna's data was legitimately collected and questioned him as to whether Smith v. Maryland, could be applied to her argument.
The EFF and American Civil Liberties Union (ACLU) joined Anna's case in July as co-counsels and to assist in creating the appeal. The EFF wrote in a blog post that the 1979 Smith case also raised the idea of whether people have an expectation of privacy in the phone numbers they dial.
“Because this was a mass bulk collection of every phone call made and kept for five years, this is just a really different calculus than happened in Smith,” said David Greene, senior staff attorney, EFF, in a Monday interview with SCMagazine.com.
Peter argued that the case makes clear that a phone subscriber should have a reasonable expectation of privacy when the government is involved, and the collected data could reveal intimate aspects of Anna's life, especially considering the duration of the surveillance and the volume.
“I think the record reflects that the information that the government retains about Anna on a daily basis is revealing,” Peter said.
The judges questioned both Peter and the Department of Justice lawyer Thomas Byron on the ramifications of the case and data collection, but didn't appear to be in consensus.
“They (the judges) didn't seem to be agreeing with what each other said,” Greene said. “They had a lot of questions. Both sides went over their times considerably. Hopefully they'll reach the right decision.”