Privacy argument proves tough sell in Coeur d’Alene woman’s NSA case

Federal appeals court judges were skeptical Monday of a Coeur d’Alene woman’s arguments that cellphone surveillance by the National Security Agency violates her constitutional right to privacy.

Coeur d’Alene nurse Anna J. Smith contends that her Verizon cellphone is her primary means of communication with family, friends, her employer, her children’s teacher, her doctor, her lawyer and others, and that her communications are none of the government’s business – and have nothing to do with terrorism. U.S. District Judge Lynn Winmill found that Smith had standing to sue but couldn’t prevail under current court precedents; he ruled against her in June.

A three-judge panel of the 9th U.S. Circuit Court of Appeals had sharp questions about Smith’s standing, as well as whether there was any proof the government had looked specifically at her phone records.

“We knew that we’d be faced with a lot of skepticism, and we knew that standing was going to be a big issue,” said Idaho Rep. Luke Malek, R-Coeur d’Alene, who is among Smith’s attorneys in the case. “I’m very excited. This case is a long way from being done, because this issue is a long way from being done. There’s a lot to be decided on privacy in the digital age.”

The Idaho case has attracted widespread attention, including friend-of-the-court briefs filed by U.S. Sens. Ron Wyden, Mark Udall and Martin Heinrich, the Center for National Security Studies, the Electronic Privacy Information Center, and 33 technical experts and legal scholars, arguing the bulk data collection is unconstitutional. The three senators, all members of the Senate Intelligence Committee, argued that they’ve seen “no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through means that caused far less harm to the privacy interests of millions of Americans.”

When Coeur d’Alene attorney Peter J. Smith began his arguments Monday morning in Seattle, noting that the name of the plaintiff in the case is Anna J. Smith, 9th Circuit Judge Richard Tallman interrupted him, saying, “Who’s your wife.”

Smith told the judge he was correct.

“I think they were intrigued probably by just the way we filed this case,” Malek said, “just taking a client who we knew well and would be tolerant of the whole process.” 

Later, the judges burst out laughing when Smith noted that he wasn’t asking them to overturn a 1979 Supreme Court case regarding specific phone surveillance of a criminal suspect. They said that’s not their place.

The judges on the panel also included Judges Margaret McKeown and Michael Hawkins.

Thomas Byron, attorney for the U.S. Department of Justice, told the court that Winmill correctly applied the law in his earlier dismissal of the case.

In court documents, Anna Smith’s attorneys wrote, “What is novel here is not primarily the nature of the data collected, but the scale of the collection.”

Attorneys for the ACLU and the Electronic Frontier Foundation also are representing Anna Smith in the case.