Smith v. Obama


In Smith v. Obama, Anna Smith, a neonatal intensive care nurse, filed suit against President Obama and others asserting that the dragnet collection of call records violated the Fourth Amendment.

The U.S. District Court in Idaho dismissed the case. Though District Judge Lynn Winmill held that the 1979 Supreme Court case Smith v. Maryland controlled, he expressed grave concerns about the privacy implications of the NSA's surveillance and cited to the one case that had found it unconstitutional:

Judge Leon’s decision [in Klayman v. Obama] should serve as a template for a Supreme Court opinion. And it might yet. Justice Sotomayor is inclined to reconsider Smith, finding it “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” See U.S. v. Jones, 132 U.S. 945, 957 (2012) (Sotomayor, J., concurring). The Fourth Amendment, in her view, should not “treat secrecy as a prerequisite for privacy.” Id.

But Smith was not overruled, and it continues – along with the Circuit decisions discussed above – to bind this Court. This authority constrains the Court from joining Klayman. Accordingly, the Court will grant the defendants’ motion to dismiss and deny Smith’s motion for injunctive relief.

The decision is on appeal to the United States Court of Appeals for the Ninth Circuit Court, and the decision is pending. The oral argument was held on December 8, 2014 by Peter J. Smith IV. You can watch the argument here.

On appeal, the American Civil Liberties Union and the Electronic Frontier Foundation assisted as co-counsel to Smith + Malek.


In response to Anna Smith's request for judicial notice that Verizon Wireless participates in the NSA's dragnet collection of call records, the government says that a reference to Verizon Wireless in a document filed with the Foreign Intelligence Surveillance Court doesn't actually mean THE VERIZON WIRELESS.

Of course, the government doesn't deny it either. In fact, the government doesn't even admit the document was filed with the FISC. 

You can read the filing yourself by clicking here


In a hearing in Klayman v. Obama, Judge Leon made it clear he will only determine whether the government is collecting the phone records from Verizon Wireless. He will not revisit the constitutional issue. Judge Leon also urged the plaintiffs to move quickly.

“The window is very small in the view of law,” he said. “You need to be thinking about the fastest, most expeditious” way to move the case, he told Klayman. “I didn’t think it would take so long to get back here.”

You can read an account of the hearing here


The D.C. Circuit Court of Appeals reversed Judge Leon's decision in Klayman v. Obama and remanded the case to the District Court. The Court of Appeals asked the District Court to look into whether the government was gathering the records of Verizon Wireless. The Court of Appeals did not overrule Judge Leon on the question of whether the gathering of phone records violated the 4th Amendment.

You can read the decision here.