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.  

We believe the purge claim is still alive. The collection was illegal in the first place, and the government should not be able to retain records it illegally collected, which it is indisputably doing.

So now we head back to Idaho and another round. 

How We Got Here

The case was originally dismissed in June 2014, when Judge Winmill concluded that he was bound by a 1979 Supreme Court decision that found that people did not have privacy interests in the records they share with their phone company. In doing so, Judge Winmill nevertheless expressed serious concerns about the privacy implications of the NSA’s surveillance.

We joined Smith’s legal team along with the ACLU when Judge Winmill’s decision was appealed to the Ninth Circuit. The Ninth Circuit heard argument in the case in December 2014, but did not issue a decision. On July 27, 2015, a few weeks after the passage of USA FREEDOM, the Ninth Circuit announced that it was no longer actively considering the appeal and would wait to see how a different challenge to NSA spying in a different court, ACLU v. Clapper, was resolved. That case is ongoing.

More than seven months later, the Ninth Circuit finally acted.

What about First Unitarian?

Our First Unitarian case remains alive. The plaintiffs in that case are also asking the court to order that their records be purged. Plus, the First Unitarian plaintiffs, unlike Anna Smith, have claims for money damages based on the illegal collection of their records. Even the NSA has admitted to the secret FISA Court that those claims are not moot.

We look forward to moving that case along so that we can fully and finally ensure that the illegal program is dead, and won’t be coming back.

And we’ll keep fighting the NSA’s mass spying in Jewel and other cases.