The District of Columbia Circuit Court of Appeals has turned back a challenge to the National Security Agency’s secret telephone data collection program, ordering a district court to review whether “limited discovery” is available to the plaintiffs, but their attorney, Larry Klayman of Freedom Watch says it’s already been a victory.
The court panel’s opinion released Friday had two judges returning the case to U.S. District Judge Richard Leon. A third would have dismissed it outright.
Klayman, who was joined by the Electronic Frontier Foundation and the Center for National Security Studies in his arguments, had sought to enjoin the NSA from the mass collection of telephone data from cell systems across the United States.
The plaintiffs contended that such a bulk collection of data constitutes “an unlawful search under the Fourth Amendment.”
While the court acknowledged that Congress changed the process for the program, effectively shutting down the previous process with a replacement that requires phone companies to keep data and make it available to the government, those changes do not take effect for months, so the case was not made moot by the change.
But the appeals court ruled, in effect, that Klayman needed to prove the secret government program specifically was collecting his, or other plaintiffs’, information, before moving forward.
Judge Janice Rogers Brown wrote, “A plaintiff must show he has suffered a ‘concrete and particularized’ injury. … In other words, plaintiffs here must show their own metadata was collected by the government.”
She said essentially the plaintiffs would have to prove that the ultra-secret government program spied on them personally in order to continue the case.
“The facts marshaled by plaintiffs do not fully establish that their own metadata was ever collected,” she wrote. “On remand it is for the district court to determine whether limited discovery to explore jurisdictional facts is appropriate.”
She noted, too, that the government’s secrecy may be an obstacle.
“It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information … that would further plaintiffs’ case,” she wrote.
Judge Stephen Williams said, “Plaintiffs lack direct evidence that records involving their calls have actually been collected.”
And he addressed the issue of secrecy.
“Plaintiffs complain that the government should not be allowed to avoid liability simply by keeping the material classified. But the government’s silence regarding the scope of the bulk collection is a feature of the program, not a bug.”
Klayman told WND he’s confident of prevailing “ultimately.”
“In terms of discovery, I should be able to find out whether we were surveilled or not,” he told WND. “We’re going to win in the end.”
No matter what else results, he said, people are now engaged in the issue, and watching the judges for their opinions.
Leon had issued an injunction against the NSA’s program, but stayed its impact until the higher court ruled. The appeals court lifted that injunction, even though it had not been applied.
The plaintiffs would have the option of asking the appeals court for a ruling from all of the judges, or pursuing to the Supreme Court.
WND recently reported that because of the nearly two-year delay in the decision by the appeals court, Klayman had asked Leon to go ahead and impose his injunction.
At the time, Klayman, in a renewed request for Leon to lift the stay, charged the Obama Justice Department, infected by “delay tactics,” is influencing the U.S. Court of Appeals for the District of [Columbia] Circuit,” which, after 19 months “still has not ruled on the government defendants’ appeal.”
In 2013, Leon found the NSA program appears to run afoul of the Fourth Amendment, and the Justice Department failed to show that collecting the metadata on telephone calls helped to head off terrorist attacks.
NSA contracter Edward Snowden blew the whistle on the agency’s vacuum-cleaner approach of sweeping up everyone’s data, called “bulk telephony metadata.” That was earlier in 2013, and Snowden has been living in exile in Russia as a wanted man by the U.S. government ever since.
Several of America’s heavyweights on civil rights and liberties, the American Civil Liberties Union and the Electronic Frontier Foundation, have sided with Klayman.
The data that the NSA collects, they explained in a brief filed in the case, “reveals political affiliation, religious practices and peoples’ most intimate associations.”
“It reveals who calls a suicide prevention line and who calls their elected official; who calls the local tea-party office and who calls Planned Parenthood.”
The brief said, “the relevant fact for whether an expectation of privacy exists is that the comprehensive telephone records the government collects – not just the records of a few calls over a few days but all of a person’s calls over many years – reveals highly personal information about the person and her life.”
Klayman had sued the NSA over the collection of telephone metadata from Verizon customers that was detailed in documents released by Snowden.
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