The fallout from the passage of the USA FREEDOM Act continues.
One of EFF’s three cases against the NSA, Smith v. Obama, has been sent back to the trial court by the Ninth Circuit Court of Appeals. The lawsuit was brought by an Idaho neonatal nurse, Anna Smith, who was outraged to discover that the NSA was engaging in bulk collection of telephone records. This same program is challenged in our First Unitarian Church of Los Angeles v. NSA case and has also always been a part of our long-running Jewel v. NSA case.
Most importantly for where we are now, this is the same program that was formally ended with the changes to Section 215 of the Patriot Act wrought by USA FREEDOM. Of course, a new version of the law replaced the old program with another one about which we, and others, have raised serious concerns. But nevertheless, Ms. Smith sued over the now-ended mass spying operation and that limits what a court can do even if it were to find that the old program was illegal.
Smith originally argued that her Fourth Amendment rights were violated when the NSA collected her phone records. She asked the court to order the government to do two things: (1) stop collecting her records going forward; (2) destroy the ones they had already. This last request is known in the law as a “purge” claim.
The appeals court determined that because the program ended by the implementation of USA FREEDOM, a court could not order the program to end. But the Ninth Circuit returned the purge claim to U.S. District Judge B. Lynn Winmill at the trial court in Idaho to determine whether Smith can force the government to destroy her records in its possession.