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Legal challenges of NSA surveillance grow -- especially by ordinary citizens

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By The Washington Post
Thursday, July 25, 2013, 5:09 p.m.
 

Anna Smith is a mother of two who lives in rural Idaho, works the night shift as a nurse and goes to the gym a lot. She rarely follows the news and knows little about the debate over government surveillance and privacy that has rocked Washington in recent weeks.

None of that is stopping her from suing the president of the United States.

Smith is the plaintiff in one of six legal challenges that have been filed over the government's sweeping collection of telephone and Internet records. Her attorney is her husband. She doesn't understand the legal technicalities and worries that the case could distract from her job and parenting duties.

But the Idaho native knows how she feels about the prospect of anyone tracking calls from her cellphone: She's outraged. “It's none of their business what I'm doing: who I call, when I call, how long I talk,” Smith, 32, said in a telephone interview. She added: “I think it's awesome that I have the right to sue the president. I'm just a small-town girl.”

Smith's lawsuit, filed June 12 in federal court in Idaho, names President Obama “in his official capacity as President of the United States of America,” along with other top officials. Like most of the other cases, it urges a judge to declare unconstitutional a National Security Agency program that scoops up the telephone records of millions of Americans from U.S. telecommunications companies.

The revelation of that program last month by former NSA contractor Edward Snowden — along with his disclosure of a separate program aimed at collecting the online communications of foreign targets from major Internet companies — has fueled the growing legal challenges.

But Smith's suit is in many ways the most unusual of the recent cases — and it arguably best exemplifies ordinary Americans' anxieties about government surveillance. Nearly three-quarters of Americans now say the NSA is infringing on personal privacy, according to a new Washington Post-ABC News poll.

The other suits were brought by what might be considered heavyweight activists: the American Civil Liberties Union; two digital rights organizations; and Larry Klayman, who founded the conservative group Judicial Watch. Smith just happens to have a cellphone and a point of view.

Her husband, Peter, is a commercial litigator who has never handled a constitutional or national security case. His co-counsel, Lucas Malek, worked briefly as a prosecutor and is now an Idaho Republican state representative and part-time lawyer.

“We grew up in northern Idaho, for goodness sakes,” said Peter Smith, 35. “This is probably the biggest thing we will ever do.”

The case faces major obstacles. Nearly all such lawsuits have been thrown out on national security or other grounds since 2005. Meantime, Smith's suit — one of hundreds the president faces each year — is accompanied by an additional hurdle.

When the British newspaper the Guardian revealed the phone records program, it published a classified court order to Verizon Business Network Services in which the NSA directed the company to turn over customers' records. Smith is a customer of Verizon Wireless, not Verizon Business Network Services.

Her eight-page lawsuit says she “believes” a similar secret court order went to Verizon Wireless. If Smith cannot prove she was a target of surveillance, her lawsuit will face problems: The Supreme Court in February narrowly dismissed an earlier such case, ruling that those challenging surveillance could only “speculate” about what the government was doing.

“It's a potential weakness,” Peter Smith acknowledged. “If we're going to get shut down by a court that says you don't even have a right to know if the order exists, we're toast.”

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