ACLU Asks Court to Order Government to Immediately Account for its Use of Vast New Surveillance Powers

November 13, 2002 12:00 am

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NEW YORK– The American Civil Liberties Union today asked a federal court to order the Department of Justice to respond immediately to a Freedom of Information Act lawsuit seeking information on the government’s use of extraordinary new surveillance powers granted to it by Congress last year.

“As the Justice Department has conceded, there is widespread public concern about the scope of the new surveillance powers and the possibility that the government is abusing them,” said Jameel Jaffer, an attorney with the ACLU’s Technology and Liberty Program.

“The records we have identified would enable the public to judge for itself whether these new surveillance powers are necessary and whether they are being used as they should be,” he added.

The ACLU sought the court order today after more than two weeks of negotiations with Justice Department lawyers failed to secure the government’s cooperation with the legal request.

In legal papers filed today in the U.S. District Court for the District of Columbia, the ACLU asked Judge Ellen Segal Huvelle to order the Justice Department to disclose within seven days what relevant records its possesses and to release those records within 20 days. The ACLU also asked the court to schedule oral arguments as quickly as possible.

The records requested concern the government’s implementation of the USA PATRIOT Act, legislation that was passed in the wake of the September 11 terrorist attacks. By amending laws such as the Foreign Intelligence Surveillance Act (FISA), USA PATRIOT vastly expands the government’s authority to obtain personal information about those living in the United States, including United States citizens.

In a letter to the ACLU dated Sept. 3, the Justice Department agreed to respond to the FOIA request speedily, acknowledging that the request concerned “a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.”

The ACLU and the Electronic Privacy Information Center filed the lawsuit on October 24 as attorneys for their organizations and for the American Booksellers Foundation for Free Expression and the Freedom to Read Foundation, citing concerns that the new surveillance laws threaten the First Amendment-protected activities of librarians, library patrons, booksellers and their customers, and investigative journalists.

The Freedom of Information Act request, which was filed on August 21, seeks general information about the use of new surveillance powers, including the number of times the government has:

  • Directed a library, bookstore or newspaper to produce “tangible things,” e.g, the titles of books an individual has purchased or borrowed or the identity of individuals who have purchased or borrowed certain books;
  • Initiated surveillance of Americans under the expanded Foreign Intelligence Surveillance Act;
  • Conducted “sneak and peek” searches, which allow law enforcement to enter people’s homes and search their belongings without informing them until long after;
  • Authorized the use of devices to trace the telephone calls or e-mails of people who are not suspected of any crime;
  • Investigated American citizens or permanent legal residents on the basis of activities protected by the First Amendment (e.g., writing a letter to the editor or attending a rally).

David Sobel, General Counsel to the Electronic Privacy Information Center, emphasized that the FOIA request does not seek any information whose disclosure could compromise national security. “We are asking only for aggregate statistical data and other policy-level information,” he said. “The release of this information would not jeopardize ongoing investigations or undermine the government’s ability to respond to new threats.”

In related litigation, the ACLU and other groups filed a friend-of-the-court brief in September urging a secret FISA appeals court to reject the Justice Department’s radical bid for broadly expanded powers to spy on U.S. citizens. A decision from the FISA Court of Review is expected imminently.

The attorneys in the case are Jaffer and Ann Beeson of the national ACLU’s Technology and Liberty Program, Sobel of the Electronic Privacy Information Center and Arthur B. Spitzer of the ACLU of the National Capital Area.

The ACLU’s legal papers filed today are online at: /node/35408 and /node/35409

For more information on the FOIA action, including links to the original request, go to /node/10786.

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