The Cable

Federal Court Hands Rare Win to NSA

When federal district judge Richard Leon ruled in late 2013 that the NSA’s mass collection of American phone records likely violated the Constitution and was “almost Orwellian,” it was seen as a landmark moment in the post-Edward Snowden era of judicial pushback against government surveillance programs.

Fort Meade, UNITED STATES:  A computer workstation bears the National Security Agency (NSA) logo inside the Threat Operations Center inside the Washington suburb of Fort Meade, Maryland, intelligence gathering operation 25 January 2006 after US President George W. Bush delivered a speech behind closed doors and met with employees in advance of Senate hearings on the much-criticized domestic surveillance.   AFP PHOTO/Paul J. RICHARDS  (Photo credit should read PAUL J. RICHARDS/AFP/Getty Images)
Fort Meade, UNITED STATES: A computer workstation bears the National Security Agency (NSA) logo inside the Threat Operations Center inside the Washington suburb of Fort Meade, Maryland, intelligence gathering operation 25 January 2006 after US President George W. Bush delivered a speech behind closed doors and met with employees in advance of Senate hearings on the much-criticized domestic surveillance. AFP PHOTO/Paul J. RICHARDS (Photo credit should read PAUL J. RICHARDS/AFP/Getty Images)

When federal district judge Richard Leon ruled in late 2013 that the NSA’s mass collection of American phone records likely violated the Constitution and was “almost Orwellian,” it was seen as a landmark moment in the post-Edward Snowden era of judicial pushback against government surveillance programs. On Friday that legal battle took a twist in the government’s favor when a panel of federal judges vacated Leon’s injunction against the collection of phone records and bounced the case back to a lower court.

In ruling against the conservative legal activist Larry Klayman, who had brought the suit, the three-judge panel at the United States Court of Appeals for the District of Columbia Circuit issued a narrow ruling that rejected the case because it said Klayman lacked standing to file the suit in the first place.

At issue is whether the NSA actually collected Klayman’s phone records. NSA programs such as the one Klayman challenged operate using large, fairly comprehensive sets of telephone data. Klayman, a customer of Verizon Wireless, could only prove that the NSA had collected records belonging to Verizon Business Network Services, but argued that because of the program’s comprehensive nature, it was fair to infer that the spy agency had also gobbled up Verizon’s cellular data.

The D.C. Circuit rejected Klayman’s reasoning and sent the case back to Leon for discovery and a determination of whether his cell records really had been collected.

From a legal perspective, Friday’s ruling is indicative of the immense hurdles privacy advocates face in trying to use the courts to rein in government surveillance. The ruling notes that because government surveillance is by its nature secret, individuals cannot know and courts cannot determine whether they are in fact under surveillance. That makes it difficult for courts to establish standing, creating a high bar to any legal challenge.

“It’s a catch-22 that seems especially inappropriate in the context of the metadata program,” Steve Vladeck, a professor of law at American University told Foreign Policy. “So much of the success of the program depends on its comprehensiveness and its ubiquity. The court’s skepticism would make a lot more sense if we were talking about a far less global government program.”

While Leon’s initial ruling had grappled with the constitutional issues raised by the NSA’s mass surveillance, Friday’s decision skirted those aspects of the ruling and focused almost solely on issues of standing.

Vladeck, an expert on national security law, said he doubts Klayman will be able to meet the bar for standing laid out in the Friday ruling. The government, he said, is likely to invoke the state secrets doctrine in responding to Klayman’s requests for information. In the absence of a government disclosure that Klayman’s phone records were collected, the case “goes back to the district court to disappear into the ether,” Vladeck said.

Indeed, once back with Leon, it is likely Klayman’s legal crusade against the NSA will come to an end, a fact noted in her opinion by Judge Janice Rogers Brown, who was most sympathetic toward Klayman’s argument. “It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event,” she wrote. “But such is the nature of the government’s privileged control over certain classes of information.”

The initial ruling has had little impact on what surveillance activities the NSA is able to carry out. When he issued his ruling in 2013, Leon stayed the preliminary injunction admonishing the NSA to halt phone record collection. In June of this year, the U.S. Congress, in a measure called the USA Freedom Act, modified the surveillance program, moving storage of the phone records from the NSA into the hands of U.S. phone companies. In May, a federal court ruled that the bulk collection of Americans’ phone records under Section 215 of the Patriot Act is illegal.

For his part, Klayman vowed to continue pushing his case before Leon, to whom the suit now returns. “Leon won’t have any difficulty proving that cell phone telephonic metadata was accessed. His reasoning was sound: How can you have this kind of program if you are excluding cell phones?” Klayman told Foreign Policy in an interview. “Leon can call the NSA into his chambers. He’s got a clearance.”

Though the ruling is fairly narrow, Vladeck said that it may make it more difficult for future plaintiffs to demonstrate that they have standing to sue the government over its surveillance activities.

That’s a setback for privacy advocates like Klayman, who even as he pledged to continue his case, slammed the court for taking nearly a year to issue a ruling that he obviously wasn’t impressed by: “An ill-informed first-year law school student could have written this decision in a day.”

Paul J. Richards/AFP/Getty Images

Elias Groll is a staff writer at Foreign Policy covering cyberspace. @EliasGroll

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