NSA Telephone Surveillance Program Can Continue

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By Patrick Gregory

Aug. 28 — The federal government's collection of bulk telephone data can proceed after the D.C. Circuit vacated a preliminary injunction.

The plaintiffs' claims “may well founder” if the government refuses documents requested in discovery on remand, Judge Janice Rogers Brown said Aug. 28 in a separate opinion.

Regulations allowing such secrecy “may frustrate the inquisitive citizen but that does not make them illegal or illegitimate,” Brown said.

White House press secretary Josh Earnest said at a press conference that the ruling is “consistent with what this administration has said for some time, which is that we did believe that these capabilities were constitutional.”

The per curiam opinion by the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court, which found that the National Security Agency's surveillance program was likely unconstitutional under the Fourth Amendment, in Klayman v. Obama, 957 F. Supp 2d 1 (D.D.C. 2013).

In separate opinions, Brown and Senior Judge Stephen F. Williams agreed that plaintiffs challenging the program hadn't shown a “likelihood of success” on the merits as needed for a preliminary injunction.

The plaintiffs haven't shown direct evidence that the NSA actually collected their phone call records, they said.

The district court must therefore determine if further discovery is appropriate on remand, they said.

Brown said the plaintiffs “have nonetheless met the bare requirements of standing,” but Williams said the plaintiffs hadn't yet established standing.

A partial dissent by Senior Judge David B. Sentelle said the case should be dismissed for lack of standing.

Call Records 

Under Section 215 of the Patriot Act, 50 U.S.C. § 1861, the federal government has collected bulk “call records produced by telephone companies containing ‘telephony metadata,'” the court said.

That metadata includes the numbers dialed, the times of calls and their durations, the court said.

The NSA may access such data only after showing the Foreign Intelligence Surveillance Court it has reasonable suspicion that the number is connected to a foreign terrorist group, the court said.

The plaintiffs, including Larry Klayman—the founder of public interest groups Freedom Watch and Judicial Watch—argued that the data collection constituted an illegal search under the Fourth Amendment, the court said.

Insufficient Evidence 

But the record “leaves some doubt about whether plaintiffs' own metadata was ever collected,” Brown said.

The plaintiffs offered evidence that a FISC order required Verizon Business Network Services to produce subscribers' call records “to the NSA on a daily basis” for more than two months, Brown said.

But the “plaintiffs are Verizon Wireless subscribers and not Verizon Business Network Services subscribers,” Brown said.

Williams said the plaintiffs' claim depended “entirely on an inference from the existence of the bulk collection program itself.”

The government says it “has never collected ‘all, or even virtually all' call records,” Williams said.

Williams said he therefore found “plaintiffs' claimed inference inadequate” to warrant a preliminary injunction.

Standing Unclear 

Brown said the plaintiffs had met the minimum requirements of standing because they offered “an inference derived from known facts,” unlike the plaintiffs that lacked standing in Clapper v. Amnesty Int'l USA, 81 U.S.L.W. 4121, 2013 BL 50248 (U.S. Feb. 26, 2013).

But Williams disagreed, saying “the plaintiffs' case for standing is similar to that rejected in Clapper,” which involved plaintiffs' mere speculation and assumptions about whether their communications would be acquired by the government.

Sentelle's partial dissent said that the “Clapper plaintiffs at least claimed that the government had previously targeted them or someone with whom they were communicating,” unlike the plaintiffs here.

The plaintiffs lacked standing and the court therefore lacked jurisdiction, Sentelle said.

Sentelle would therefore “remand the case for dismissal, not further proceedings,” Sentelle said.

Klayman argued for the plaintiffs.

The Department of Justice argued for the federal government.

With assistance from Cheryl Bolen in Washington

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Full text at http://www.bloomberglaw.com/public/document/BARACK_HUSSEIN_OBAMA_ET_AL_APPELLANTS_v_LARRY_ELLIOTT_KLAYMAN_ET_.