Federal appeals court weakens lawsuit against NSA’s bulk phone data collection

By Ellen Nakashima August 28 at 1:14 PM

An appeals court in the District of Columbia dealt a setback Friday to an activist’s lawsuit against the government over the legality of the National Security Agency’s call records program, ruling that the plaintiff has not proved his standing to sue.

A three-judge panel for the U.S. Court of Appeals for the District of Columbia ruled that public interest lawyer Larry Klayman, the founder of Freedom Watch, has not proved his own phone records were collected by the NSA – and so has not met a condition of bringing the lawsuit.

It sent the case back to a lower court for further deliberation on the issue.

The panel’s ruling also reverses a ban on the NSA’s collection that had been imposed -and temporarily stayed-by a District Court judge in December 2013.

But the ruling, which is strictly procedural, does not address the constitutionality or legality of the program.

Congress in June put an end to the program, passing a law that barred the government from collecting phone and other records in bulk. But the NSA is continuing to do so as it transitions the program to phone companies by December.

In Friday’s ruling, a three-judge panel of the U.S. Court of Appeals for the District of Columbia sent the case back to the lower court for further deliberation on the standing issue.

Circuit Court Judge Stephen F. Williams wrote that the lead plaintiff, conservative legal activist Larry Klayman, “lack[s] direct evidence” that records involving his calls “have actually been collected.”

Klayman, the lead plaintiff in the lawsuit, is a customer of Verizon Wireless. The only phone company that the government has acknowledged was part of the program is Verizon Business Network Services.

The Department of Justice declined to comment on the case.

The panel’s ruling reverses the judgment of U.S. District Judge Richard J. Leon found that Klayman “demonstrated a substantial likelihood of success” in his bid to prove that his Fourth Amendment right to privacy was violated and that the NSA program was likely unconstitutional.

Leon’s fiery 68-page opinion drew wide attention not only because it was the first (and only) trial court to rule against the program but also because of its colorful, headline-grabbing language. He called the collection “almost –Orwellian” – and “at best, the stuff of science fiction.”

Under the program, which was initiated in secret in 2001 under executive power and approved--again in secret--by a surveillance court in 2006, the NSA collects from a number of large phone companies the metadata from millions of phone calls daily. That includes the numbers dialed and call times and durations, but not the content.

The program’s existence was confirmed by the government in June 2013 after former NSA contractor Edward Snowden leaked a classified court order to Verizon Business Networks Services directing it to turn over “all call detail records” to the government.

Klayman lashed out at the judicial panel for its timing. “An ill-informed first-year law student could have written this within one day,” he said. “Why did you wait nearly two years after Leon issued his decision? You delayed getting to the issues. During that time the constitutional rights of Americans continue to be violated.”

He nonetheless said that he was confident he would prevail. He said that he could amend his complaint to include plaintiffs who are customers of Verizon Business Network Services.

He accused the panel of “reacting to the politics of the Washington Republican establishment…who say, ‘Do what you want, NSA.’ “

He added: “Nobody’s against doing surveillance of terrorists,” he said. “What we’re saying is get a warrant.”

To date, the only appeals court to rule on the merits of the NSA program is the Second Circuit Court of Appeals in New York, which in May held the collection violated the Patriot Act and was “unprecedented and unwarranted.”

That court will hear argument next week on the American Civil Liberties Union’s request that the agency be required to end the collection immediately – not in December.

The court in Klayman’s case observed that Klayman’s effort to prove standing was complicated by the possibility that the government could withhold information that would bolster his allegations. “Plaintiffs’ claims may well founder in that event,” said Circuit Court Judge Janice Rogers Brown. “But such is the nature of the government’s privileged control over certain classes of information.”

The ruling, said Harley Geiger, senior counsel for the Center for Democracy and Technology, “demonstrates that excessive secrecy limits debate and reform. It leads to unbalanced surveillance programs and provides victims with little or no recourse.”

At the end of the transition period, the NSA will be barred from collecting domestic phone records in bulk under the Patriot Act. Instead it will be required to obtain court approval to make requests of companies for phone numbers of individuals with suspected links to terrorism. The companies under court order will return to the agency metadata on those calls and potentially on calls linked to those calls.


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