In June of 2013, Anna Smith filed a lawsuit to stop the National Security Agency from collecting "metadata" created by her cell phone calls. This metadata included the time of calls, the length of the calls, and to whom the calls were made.
The lawsuit was dismissed by the District Court in May of 2015. Anna Smith appealed to the Ninth Circuit Court of Appeals. Oral argument was held on December 8, 2015.
While on appeal, Congress passed the USA FREEDOM Act in August of 2015. Among other things, the USA FREEDOM Act prohibits bulk collection of metadata after November 28, 2015. But the metadata was not purged.
On November 24, 2015, the Foreign Intelligence Surveillance Court (“FISC”) approved the government’s request to retain already collected metadata. Opinion & Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things, No. BR 15-99 at 1–2 (FISC Ct. Nov. 24, 2015).
Because of the law changed, on March 22, 2016, the Ninth Circuit Court of Appeals ruled that the claim to stop the government from collecting the metadata was moot. In addition, the Court of Appeals sent the case back to the District Court to figure out if the request to delete the metadata is also moot and, if it is not, whether the metadata must be deleted. Click here to see the Order.
The case is not moot. The government is retaining private information about Anna Smith. It collected this information in violation of the 4th Amendment. It must be deleted.