Judge takes case under advisement

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Associated Press

Posted on May 15, 2014 at 2:34 PM

Updated Thursday, May 15 at 2:36 PM

COEUR D'ALENE, Idaho (AP) — Lawyers for the federal government on Thursday asked a U.S. District Court judge to throw out a lawsuit filed against President Barack Obama and top security officials over the National Security Administration's mass surveillance of phone records.

Judge B. Lynn Winmill heard arguments from both sides on the motion to dismiss the case, then took it under advisement and said he would rule at a later date.

Lawyers for plaintiff Anna Smith contend the Coeur d'Alene nurse's constitutional rights under the First and Fourth amendments were violated and that the lawsuit should proceed.

"Can you gather information from nearly every single American without them knowing about it?" wondered attorney Peter Smith, who is the plaintiff's husband. "The government is collecting data on over 99 percent of Americans."

But a lawyer for the Justice Department said the mass collection of telephone records was legal. The records include the number that placed a call, the number called and how long the call lasted, the government has said.

"There is no reasonable expectation of privacy in the telephone numbers a person has dialed," said Marcia Berman, a Justice Department lawyer from Washington, D.C.

Previous cases before the U.S. Supreme Court have established that collecting telephone numbers did not violate the Fourth Amendment prohibition against unreasonable searches and seizures, Berman said.

"I fear there is no expectation of privacy unless you live under a Cone of Silence on a desert island," the judge remarked.

Berman said Anna Smith cannot prove that any data gathered by the NSA that involved her telephone calls was ever examined.

But Peter Smith said data was being collected and stored and could be examined at any time. "You can paint a great, detailed picture of an individual citizen based on this data," he said.

The lawsuit was filed last year, and it contends the once-secret surveillance program exceeds the authority of the federal government.

Anna Smith said in the lawsuit that she used Verizon cellphone service for at least three years and before that was a customer of AT&T cellphone service for four years. She said that based on the government's surveillance of Verizon Business Network Services telephone records, she believes that Verizon Wireless and AT&T records were also collected by the NSA, including her personal cellphone data.

"The government now possesses information about Plaintiff Anna Smith, including but not limited to her associations and public movements, revealing a wealth of detail about her familial, political, professional, religious, and intimate associations," her lawsuit said.

Anna Smith has said she used her cellphone to communicate with her doctor, her employer, family members and her children's teachers. None of the calls were related to international terrorism or clandestine intelligence activities, and they were collected simply because they occurred, Smith contended.

She wants the court to declare the mass call tracking unconstitutional and to order the government to stop. She also wants the government to destroy any of her telephone records they possess and to pay for her court fees and costs.

The American Civil Liberties Union and others have also filed lawsuits over the telephone-records collection program. The Obama administration has said the collection of the telephone records is necessary to protect Americans from terrorism.

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