'Hey, do you want to sue the president?'

COEUR d'ALENE - Coeur d'Alene attorney Peter Smith's wife is the "Anna Smith" in Anna J. Smith v. Barack Obama.

"I sent her a text," Peter Smith recalled Thursday. "I said, 'Hey, do you want to sue the president?'"

Anna Smith was working overnight as a neonatal intensive care nurse. It occurred after National Security Administration contractor Edward Snowden disclosed thousands of classified documents to the media.

"I was reading online about it," said Peter Smith, of Lukins and Annis. "I thought it was really interesting."

He saw an American Civil Liberties Union lawsuit filed in New York challenging the NSA's actions. He wondered why he couldn't file a lawsuit.

He had to think about what cellphone subscriber he could volunteer for a lawsuit.

"There was only one person that came up in my mind," Smith said. "It was Anna, because she's my wife, so I know her really well."

Then he fired off the middle-of-the-night text message.

"She said, 'Go for it,'" Smith said.

He drafted a complaint and went to sleep around 5 a.m.

Today, he is taking on the federal government along with Idaho state Rep. Luke Malek, an attorney and Smith's co-counsel.

It's a very personal effort and they are not getting paid, so it begs the question: Why take on this major exercise in challenging the federal government?

"The question that we're really trying to get answered is: How do we define privacy now that we have cellphones that track our every movement?" Malek said Thursday. "We are trying to define what privacy under the Fourth Amendment means moving forward."

He said the Founding Fathers never envisioned today's use of mobile phones.

"The law needs to catch up," Malek said. "The constitutional interpretation needs to catch up."

"There is no case law, really," Smith said. "If you look at the scope of the data they're collecting."

The attorneys' case went before U.S. District Court Judge B. Lynn Winmill on Thursday morning.

Smith originally filed a motion for a preliminary injunction to stop the NSA from collecting data from his wife's cellphone.

"Anna's not a terrorist, she's not on any list," said Smith in an interview following the court hearing. "They have all of her data. Should that be allowed?"

Anna Smith makes a great plaintiff because she could be anyone's wife, mother, daughter or nurse, the attorneys decided.

The fate of the case rests with Winmill, who could dismiss it or the injunction could be granted. No time frame has been given for when a decision will be made, but it could be 30 to 45 days, Smith said.

"It's a monumental constitutional question that's being debated across the country," Malek said.

Smith and Malek's case is the lead in the 9th U.S. Circuit Court of Appeals.

"If we win, they're going to appeal," Smith said. "If we lose, we're going to appeal. It's just going to go up."

Smith and Malek said it is cases like this that motivated them to attend law school.

"It's a great opportunity to argue a case in an area of law that is undeveloped, and take it all the way up to the highest levels of the federal court system.

"It just doesn't happen very often," Smith said. "So, personally, it's a huge opportunity just to see how the process really works and make the argument that other people are making, but not that many others."