Second Circuit Arguments on NSA Spying on C-Span

Steven D. Schwinn, John Marshall Law School

The Second Circuit heard oral arguments yesterday in a challenge to the NSA program involving mass collection of telephone call details under Section 215 of the Patriot Act.  The full argument was broadcast on C-Span and is available here.  (The embed code wasn't cooperating.)

The case, ACLU v. Clapper, is one of three cases challenging the program now pending in the circuit courts; the other two are Smith v. Obama (in the Ninth Circuit) and Klayman v. Obama (in the D.C. Circuit).  The Electronic Frontier Foundation has a backgrounder here, with links to case materials; the ACLU has a backgrounder on Section 215 here; the ACLU's page on ACLU v. Clapper is here.

Challengers in the cases argue that Section 215 violates the First and Fourth Amendments, but face justiciability questions before the courts will get to the merits.  That's because Section 215 prohibits a telecommunication company subject to a 215 order from telling its customers about it, so without more a customer wouldn't know.  Still, the district courts in Smith and Klayman ruled that the plaintiffs had standing based on the sheer breadth of the program.